It is one of the more dubious FCPA enforcement theories there is. It has never been subjected to judicial scrutiny. It is a relatively new enforcement theory when one considers that the Foreign Corrupt Practices Act was enacted in 1977. It is an enforcement theory that has been used 30 times since introduced to the FCPA context in 2002 and thus is one of the reasons for the general increase in FCPA enforcement in the modern era.
It is the enforcement theory that employees (such as physicians, nurses, mid-wives, lab personnel, etc.) of certain foreign health care systems are “foreign officials” under the FCPA and thus occupy a status akin to a President or Prime Minister.
This post traces the origins and prominence of this theory, contains comments from the former DOJ FCPA enforcement attorney who came up with this theory, and highlights a data point relevant to the legitimacy and validity of this theory.