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Business Crimes Hotline
NEW JERSEY
Government's Interpretation of FCPA 'Instrumentality' Withstands Another Challenge
On Dec. 30, 2014, Judge Joseph Ireans of the District of New Jersey denied a motion filed by defendant Joseph Sigelman to dismiss his FCPA charges on the basis that his conduct related to a private company, not a government instrumentality. Sigelman, a former executive of PetroTiger, Ltd., is facing prosecution for alleged payments made to an employee of Ecopetrol S.A., a Colombian energy company. The government claimed in Sigelman's indictment that Ecopetrol was an “instrumentality” of the Colombian government at the time of the alleged payments, thus making its employees “foreign officials” under the FCPA.
The government derided Sigelman's view of a “government function” as a “one-size-fits-all test” that defied the Supreme Court's direction in First Nat'l City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611 (1983), a case interpreting the Foreign Sovereign Immunities Act (FSIA). In particular, the government repeated the warning of First Nat'l City Bank that “the concept of a 'usual' or 'proper' governmental function changes over time and varies from nation to nation.” In supplemental briefing, Sigelman argued that legal authorities related to FSIA are not relevant to the FCPA's definition of “instrumentality” due to the two statutes' differing language and purposes.
Judge Ireans dismissed Sigelman's motion without a written opinion, leaving the court's specific rationale for the dismissal unspecified and preserving the Eleventh Circuit's opinion in Esquenazi as the leading recent authority ' until the next challenge is raised.
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NEW JERSEY
Government's Interpretation of FCPA 'Instrumentality' Withstands Another Challenge
On Dec. 30, 2014, Judge Joseph Ireans of the District of New Jersey denied a motion filed by defendant Joseph Sigelman to dismiss his FCPA charges on the basis that his conduct related to a private company, not a government instrumentality. Sigelman, a former executive of PetroTiger, Ltd., is facing prosecution for alleged payments made to an employee of Ecopetrol S.A., a Colombian energy company. The government claimed in Sigelman's indictment that Ecopetrol was an “instrumentality” of the Colombian government at the time of the alleged payments, thus making its employees “foreign officials” under the FCPA.
The government derided Sigelman's view of a “government function” as a “one-size-fits-all test” that defied the
Judge Ireans dismissed Sigelman's motion without a written opinion, leaving the court's specific rationale for the dismissal unspecified and preserving the Eleventh Circuit's opinion in Esquenazi as the leading recent authority ' until the next challenge is raised.
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