History was made in the U.K. today when Robert John Dougall, a former DePuy executive, pleaded guilty to conspiring with other “to make corrupt payments and/or give other inducements” to “medical professionals within the Greek state health care system” contrary to Section 1 of the UK Prevention of Corruption Act of 1906 (see here ).
According to the SFO release (here ) and media reports (here  and here ), Dougall, a former Director of Marketing with responsibility for business development in Greece, blew the whistle on others within the company thus becoming the “first ‘co-operating defendant’ in a major SFO corruption investigation.”
According to the SFO release, DePuy made commission payments to a distributor “to induce or reward surgeons to use” DePuy products.
A SFO spokesperson said that Dougall’s seniors “were clearly consenting and driving the [improper] activity” and Dougall reportedly told investigators that he considered the payments “distasteful” but that he didn’t feel like he had any other choice.
Dougall was sentenced to 12 months imprisonment. In sentencing Dougall, the judge rejected a joint suggestion by the SFO and the defense that he should be given a suspended sentence.
According to the SFO, Dougall is cooperating and providing substantial assistance in connection with the ongoing investigation. The case commenced following a referral to the SFO by the DOJ in October 2007.
Even though the charge Dougall pleaded guilty to does not contain a “foreign official” or “foreign public official” element, it is clear that the SFO is taking an expansive view as the recipients in this case were Greek surgeons. This is not surprising given that the SFO has stated its intention to model its enforcement on the DOJ’s enforcement of the FCPA.
In November 2009, Assistant Attorney General Breuer, speaking before a pharma audience (see here ), provided an expansive interpretation of the “foreign official” element in the context of the health care industry.
Dougall may be thinking, “what if I worked for BAE” or what if my name was “Count Alfons Mensdorff-Pouilly”?
Why? (see here )
But then again, the “I was speeding just like the rest of traffic” has never been a good legal defense.