Ferrera To Challenge “Foreign Official” Enforcement Theory
In March 2026, the DOJ criminally charged David Ferrera and Marc Tilman with FCPA and related offenses in connection with an alleged bribery scheme involving an employee of Centre Hospitalier Universitaire de Reims (CHU Reims) in France. (See here for the prior post).
According to the DOJ: “CHU Reims was wholly owned and controlled by the government of France and performed a function that France treated as its own. CHU Reims was an “instrumentality” of a foreign government, and CHU Reims’s officers and employees were “foreign officials,” as those terms are used in the FCPA …”.
The prior post noted that the DOJ enforcement theory that employees (such as physicians, nurses, mid-wives, lab personnel, etc.) of certain foreign health care systems can “foreign officials” under the FCPA – and thus occupy a status akin to a President or Prime Minister – was dubious.
Ferrera Pleads Not Guilty
Earlier this month, the DOJ criminally charged David Ferrera and Marc Tilman (individuals associated with Balt) with FCPA and related offenses in connection with an alleged bribery scheme involving an employee of an alleged French state-owned and state-controlled public university hospital. (See here for the prior post).
The enforcement theory that employees of certain foreign health care systems are “foreign officials” under the FCPA and thus occupy a status akin to a President or Prime Minister has been used approximately 35 times in corporate enforcement actions but has never subjected to judicial scrutiny.
The Ferrera and Tilman action is believed to be the first instance of this enforcement theory being used to criminally charge individuals with FCPA offenses.
Notable Criminal FCPA Enforcement Action Filed
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 35 times in corporate enforcement actions since introduced to the FCPA context in 2002 and thus is one of the more obvious reasons for the general increase in FCPA enforcement in the modern era. (See here).
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.
It is believed that this enforcement theory has never been used to criminally charge an individual with FCPA offenses …. until now.