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The “Foreign Officials” Of 2021

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 2021?

This post highlights the alleged “foreign officials” from 2021 corporate DOJ and SEC FCPA enforcement actions. Compared to prior years, this year in review statistic (like many from 2021) is less than enlightening given the small number of corporate enforcement actions in 2021.

There were four core FCPA enforcement actions in 2021. Of the four actions, three (75%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).

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UK Finance Addresses The Meaning Of “Public Official”

UKFinance

UK Finance, a trade association of the United Kingdom banking and financial services sectors, recently released this white paper titled “Anti-Bribery and Corruption Compliance – Definition of Public Officials.”

The stated purpose of the paper “is to establish practical and risk-based guidance on the definition of public officials for purposes of anti-bribery and corruption (ABC) compliance.”

The introduction states as follows:

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Swedish Appellate Court Agrees, Karimova Was Not A “Public Official” (The Same Enforcement Theory That The U.S. Largely Used To Secure Approximately $1.7 Billion In FCPA Settlements)

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This post is related to a prior post from March 2019 regarding the same subject.

In recent years, the U.S. government has secured approximately $1.7 billion in net Foreign Corrupt Practices Act settlement amounts in related FCPA enforcement actions against telecommunications companies VimpelCom, Telia, and most recently MTS. The enforcement actions were largely based on the theory that Gulnara Karimova (the daughter of former Uzbekistan President Islam Karimov) was a “foreign official” under the FCPA’s anti-bribery provisions. Like many FCPA enforcement theories, this theory was not subjected to any meaningful judicial scrutiny.

However, in a 2019 criminal prosecution of former Telia executives Tero Kivisaari, Olli Tuohimaa and Lars Nyberg, a Swedish trial court acquitted the defendants because Karimova was not a “public official” under the relevant law.

Earlier this year, a Swedish appellate court affirmed the acquittal and once again concluded that Karimova was not a “public official” under the relevant law.

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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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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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