This recent post highlighted the DOJ’s new Corporate Whistleblower Awards Pilot Program. (See here for 14 pages of guidance, and see here for the 4 page fact sheet).
To be eligible for an award, information provided by an individual must, among other things, “pertain” to four subject matter areas – one of which is “foreign corruption and bribery.”
The DOJ Guidance states:
“Violations related to foreign corruption and bribery by, through, or related to companies, including violations of the Foreign Corrupt Practices Act, violations of the Foreign Extortion Prevention Act, and violations of the money laundering statutes.”
One category of actors likely to have knowledge or information about foreign corruption and bribery under those laws are “foreign officials.”
Obviously “foreign officials” who are the recipients of bribes and/or demand bribes have knowledge and information about their own activities – but such individuals are rightly excluded from the DOJ’s whistleblower program because “they meaningfully participated in the criminal activity they reported, including by directing, planning, initiating, or knowingly profiting from that criminal activity.”
However, the DOJ’s whistleblower program contains other express exclusions for when an “individual is not eligible for an award” including “they are, or were at the time they acquired the original information provided to the Department, an elected or appointed foreign government official.”
It is assumed that the DOJ will interpret “foreign government official” the same as it interprets “foreign official” under the FCPA to mean, among others, employees of state-owned or state-controlled enterprises (SOEs) and healthcare personnel of most foreign healthcare systems. According to Webster’s Dictionary, the definition of “appointed” includes “chosen for a particular job” – thus the exclusion seems to apply to all “foreign officials.”
If so, given that one of the goals of the DOJ whistleblower program is to learn more information about “foreign corruption and bribery,” does it make sense to categorically exclude a non-culpable “foreign official” from receiving a whistleblower award?
Imagine the following scenarios.
An employee of a foreign customs or permitting agency has knowledge that a co-worker is seeking and/or receiving bribes in connection with customs or permitting issues and has knowledge of the bribe payer. It would seem that the DOJ would want to know this information, but such a “whistleblower” is categorically excluded under the DOJ’s program and thus perhaps less likely to report this information to the DOJ.
An employee of an SOE has knowledge that a co-worker is seeking and/or receiving bribes in connection with a contract and has knowledge of the briber payer. It would seem that the DOJ would want to know this information, but such as “whistleblower” is categorically excluded under the DOJ’s program and thus perhaps less likely to report this information to the DOJ.
An employee of a certain foreign healthcare system has knowledge that a co-worker is seeking and/or receiving bribes in connection with various healthcare discretionary decisions and has knowledge of the briber payer. It would seem that the DOJ would want to know this information, but such a “whistleblower” is categorically excluded under the DOJ’s program and thus perhaps less likely to report this information to the DOJ.
