Healthcare Professionals As “Foreign Officials”
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 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.
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.
The “Foreign Officials” Of 2023
A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2023?
This post highlights the alleged “foreign officials” from 2023 corporate DOJ and SEC FCPA enforcement actions.
There were fourteen corporate FCPA enforcement actions in 2023. Of the fourteen actions, nine (64%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).
Issues To Consider From The Freepoint Commodities Enforcement Action
This recent post highlighted the Foreign Corrupt Practices Act enforcement action against Freepoint Commodities based on alleged bribery schemes in Brazil. (This post discussed the related Commodities Future Trading Commission enforcement action against the company).
This post highlights additional issues to consider from the FCPA enforcement action.
Assessing Freepoint’s Culpability
Freepoint might be the least culpable defendant in FCPA enforcement action history.
A Focus On SOEs
I recently came across a report titled “The Size and Sectoral Distribution of State-Owned Enterprises” published by the OECD Working Party on State Ownership and Privatization Practices.
The 2017 report is a bit dated, but interesting nevertheless.
Unfortunately, the report can’t be downloaded without a purchase, so this post will capture screenshots of various findings.
“Foreign Officials” In Golf?
This post from last year pondered whether individuals associated with LIV Golf, financed by the Saudi Arabian Public Investment Fund (“PIF” – one of the largest sovereign wealth funds in the world) are “foreign officials” under the Foreign Corrupt Practices Act given how this element of the FCPA’s anti-bribery provisions has been interpreted by the DOJ and SEC.
The question is perhaps more pressing now given the announcement last week that the PGA Tour, LIV Golf (PIF) and the DP World Tour “have signed an agreement that combines PIF’s golf-related commercial businesses and rights (including LIV Golf) with the commercial businesses and rights of the PGA TOUR and DP World Tour into a new, collectively owned, for-profit entity.”