James H. Giffen, owner of Mercator Corporation, a New York company, made $78 million in payments to two government officials in Kazakhstan. He was charged with violations of the FCPA. Giffen moved to have the charges dismissed because he had been named a Counselor to the President of Kazakhstan and was immune from prosecution under the act of state doctrine. He also asked that the charges be dismissed because any payments he made to the officials were for facilitation and access and were not bribes for contracts with his company.
Is he correct? Does the act of state doctrine apply? Did he bribe, or did he facilitate?
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