A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2022?
This post highlights the alleged “foreign officials” from 2022 corporate DOJ and SEC FCPA enforcement actions.
There were ten corporate FCPA enforcement actions in 2022. Of the ten actions, seven (70%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).
By way of comparison:
- In 2021, 75% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here).
- 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 2022. 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.]
KT Corp
SEC
“Members of the Korean National Assembly serving on committees relevant to KT’s business”
“A high-level official of Vietnam’s Quang Binh province,” and individuals associated with the Vietnam Ministry of Labor, Invalids and Social Affairs and the General Department of Vocational Training
JLT
DOJ
General reference to “Ecuadorian government officials in order to obtain and retain contracts with Seguros Sucre, the Ecuadorian state-owned and -controlled surety company”
Stericycle
DOJ/SEC
“Foreign officials who were employed by at least 25 local and regional government agencies and instrumentalities in Brazil”
“[F]oreign officials … who were employed by local and regional government agencies and instrumentalities in Mexico”
“Foreign officials … in Argentina to secure improper advantages in order to obtain and retain business in connection with providing waste management services and to obtain authorization or priority release of payments owed under those contracts”
Glencore
DOJ
Individuals associated with state-owned and state-controlled entities in Nigeria, Cameroon, Ivory Coast, and Equatorial Guinea
Individual associated with Petrobras
Tenaris
SEC
Individual associated with Petrobras – described as a high-ranking manager in Petrobras’ supply procurement and tender process department
GOL
DOJ/SEC
A high-ranking official in the government of the Federal District of Brasilia and a member of Brazilian Political Party
Oracle
SEC
Individuals associated with Turkey’s Ministry of Interior and Social Security Institute
Chief Technology Officer at a UAE state-owned entity
Individual associated with an Indian SOE
ABB
DOJ/SEC
Individual associated with Eskom Holdings Limited which is described as a South African state-owned and state-controlled energy company
Honeywell
DOJ/SEC
Individual associated with Petrobras
SEC
Individual associated with La Société Nationale pour la Recherche, La Production, Le Transport, la Transformation, et la Commercialisation des Hydrocarbures (“Sonatrach”), the Algerian state-owned oil company.
Safran
DOJ
General reference to a “senior Chinese government official”
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