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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).

By way of comparison:

  • In 2020, 83% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • In 2019, 57% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2018, 53% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2017, 54% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2016, 78% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2015, 55% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2014 60% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2013, 77% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
  • in 2012, 42% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here at pages 348-353);
  • in 2011, 81% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here at pages 29-41);
  • in 2010, 60% of corporate FCPA enforcement actions involved, in whole or in part, employees of alleged SOEs (see here at pages 108-119); and
  • in 2009, 66% of corporate FCPA enforcement actions involved, in whole or in part, employees of alleged SOEs (see here at pages 410-44).

In 2014, in an issue of first impression for an appellate court, the 11th Circuit set forth a control and function test for whether an alleged SOE can be “instrumentality” under the FCPA such that its employees are “foreign officials” under the FCPA.  As highlighted here and more extensively in my Supreme Court amicus brief supporting the cert petition, there were many flaws in the 11th Circuit’s reasoning.  The Supreme Court declined to hear the case.  As to whether Congress intended employees of SOEs to be “foreign officials” under the FCPA, see here for my “foreign official” declaration.

The remainder of this post describes (as per DOJ/SEC allegations) the “foreign officials” of 2021.  As is apparent from the descriptions below, in certain instances the enforcement agencies describe the “foreign official” with reasonable specificity. In other instances there is virtually no specificity as to the alleged “foreign officials.”

[Note: as in prior years, certain of the enforcement actions below technically only involved FCPA books and records and/or internal control charges or findings. As most readers know, actual charges in many FCPA enforcement actions hinge on voluntary disclosure, cooperation, collateral consequences, and other non-legal element issues.  Thus, even if an FCPA enforcement action is resolved without FCPA anti-bribery charges, most such actions remain very much about the “foreign officials” involved – a fact evident when reading the actual enforcement action.]

Deutsche Bank

DOJ/SEC

Reference made to a high-ranking official of, and a decision-maker for, the Abu Dhabi SOE.

Reference made to the wife of an individual who was responsible for managing the family office and the personal investments of a Saudi official.

Amec Foster Wheeler

DOJ/SEC

Decision-makers at Petrobras (described as an entity in which the Brazilian government directly owned a majority of common shares with voting rights with additional shares controlled by the Brazilian Development Bank and Brazil’s Sovereign Wealth Fund).

WPP

SEC

Individuals associated with the Departments of Information and Public Relations of the Indian States of Telangana and Andhra Pradesh.

Chinese tax official.

Vague reference to improper payments to vendors in connection with securing government contracts in Brazil.

Reference made to a bribery scheme involving a construction company funding the mayor of Lima’s political campaigns in exchange for contract awards.

Credit Suisse

Reference made to individuals associated with Mozambican state-owned entities.

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