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The “Foreign Officials” Of 2020

foreign official2

A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal).  Who were the alleged “foreign officials” of 2020?

This post highlights the alleged “foreign officials” from 2020 corporate DOJ and SEC FCPA enforcement actions.

There were 12 core FCPA enforcement actions in 2020. Of the 12 actions, 100 (83%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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“Foreign Official” Status Disputed

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In August 2020, the DOJ announced that Jose Luis De Jongh Atencio (De Jongh) “a former official at Citgo Petroleum Corporation, a Houston-based subsidiary of Venezuela’s state-owned and state-controlled energy company Petróleos de Venezuela S.A. (PDVSA)” was criminally charged “for his alleged role in laundering the proceeds of a scheme involving bribes made to corruptly secure business advantages from Citgo and PDVSA.”

In the indictment, the DOJ alleges that De Jongh was a “foreign official.”

Recently, De Jongh’s counsel (Dane Ball – Smyser Kaplan & Veselka LLP) filed a letter to the court stating in pertinent part (certain internal citations omitted):

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A Foreign Official Head-Scratcher

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The anti-bribery provisions of the Foreign Corrupt Practices Act define “foreign official” to mean in pertinent part: “any officer or employee of a foreign government or any department, agency, or instrumentality thereof … or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality …”.

Having reviewed the FCPA’s entire legislative history, it is clear that Congress intended “foreign” to mean non-U.S. as Congress learned of payments to: the political campaign of the President of the Republic of Korea; a Saudi Arabian general; Italian political parties; Japanese Prime Minister Tanaka; Prince Bernhard (the Inspector General of the Dutch Armed Forces and the husband of Queen Juliana of the Netherlands); Oswaldo Lopez Arellano, the President of Honduras; and Albert Bernard Bongo, the President of Gabon.

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Friday Roundup

Roundup

Not true, DOJ appeal, scrutiny alert, and monitor extended. It’s all here in the Friday roundup.

Not True

In this recent Trace International sponsored podcast about the 2014 Esquenazi decision, Bill Steinmen (Senior Editor at the FCPA Blog) asserts that the FCPA’s “legislative history doesn’t really shed any light” on the meaning of “instrumentality” in the FCPA.

Not true.

There is much information in the FCPA’s legislative history relevant to the issue of whether Congress intended the phrase “instrumentality” in the “foreign official” definition to cover state-owned or state-controlled enterprises (“SOEs”).

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The “Foreign Officials” Of 2019

foreign official2

A “foreign official.”

Without one, there can be no FCPA anti-bribery violation (civil or criminal).  Who were the alleged “foreign officials” of 2019?

This post highlights the alleged “foreign officials” from 2019 corporate DOJ and SEC FCPA enforcement actions.

There were 14 core FCPA enforcement actions in 2019. Of the 14 actions, 8 (57%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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