One of the factors to determine just who is a foreign governmental official under the Foreign Corrupt Practices Act (FCPA), is whether a foreign government is involved. There are currently a triumvirate of pending cases where the defendants have challenged a basic Department of Justice tenet that businesses owned by foreign governments are “instrumentalities thereof” foreign governments and thereby covered under the FCPA. The three cases are the CCI case in Central District of California, the Lindsey Manufacturing case, also in the Central District in California and the John O’Shea case, currently in the Southern District of Texas.

As reported by the FCPA Professor and the FCPA Blog on Wednesday, the Department of Justice was denied the right to file a Declaration from the US State Department in the Lindsey Manufacturing case. As reported by the FCPA Blog the Declaration of Clifton M. Johnson, Assistant Legal Adviser for Law Enforcement and Intelligence in the Legal Adviser’s Office said that “the judge should not grant the defendants’ motion to dismiss because it would adversely impact U.S. foreign policy. [Johnson] asserted that the FCPA was consistent with the OECD anti-bribery convention and that the “foreign official” and state-owned entity coverage of the FCPA must be maintained.” The FCPA Blog opined that this ruling could be a “key defeat in the battle over who’s a “foreign official” under the FCPA”.