A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2015?
This post highlights the alleged “foreign officials” from 2015 corporate DOJ and SEC FCPA enforcement actions.
There were 11 core corporate enforcement actions in 2015.
Of the 11 enforcement actions 6 (55%) explicitly involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs). These entities ranged from health care providers, to sovereign wealth funds, to a real estate development firm, a sugar factory, a cement company, a diamond mine, and an oil and gas company.
By way of comparison, in 2014 60% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here). In 2013, 55% 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). 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 2015. As is apparent from the descriptions below, in certain instances the enforcement agencies describe the “foreign official” with reasonable specificity; in other instances with virtually no specificity.
[Note: certain of the enforcement actions below technically only involved FCPA books and records and 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 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].
PBSJ
SEC
Employees of Qatari Diar Real Estate Investment Company (“Qatari Diar”). Qatari Diar was established by the Qatari government to coordinate the country’s real estate development.
Goodyear
SEC
Employees of Kenyan government-owned or affiliated entities including including the Kenya Ports Authority, the Armed Forces Canteen Organization, the Nzoia Sugar Company, the Kenyan Air Force, the Ministry of Roads, the Ministry of State for Defense, the East African Portland Cement Co., and Telkom Kenya Ltd.
Employees of government-owned or affiliated entities in Angola, including the Catoca Diamond Mine, UNICARGAS, Engevia Construction and Public Works, the Electric Company of Luanda, National Service of Alfadega, and Sonangol.
IAP Worldwide
DOJ
Individual(s) at the Kuwaiti Ministry of the Interior
BHP Billiton
SEC
Government officials and employees of state-owned enterprises to attend the Olympics at the company’s expense. The majority of these invitations were extended to government officials from countries in Africa and Asia that had well-known histories of corruption.
FLIR Systems
SEC
Individuals with the Saudi Arabia Ministry of Interior. Individuals from the Egyptian Ministry of Defense
Louis Berger
DOJ
Various foreign officials in Indonesia, Vietnam, India and Kuwait.
Hyperdynamics
SEC
Payments by company subsidiaries in the Republic of Guinea for purported public relations and lobbying expenses, even though the company lacked sufficient supporting documentation to determine whether the services were actually provided and to identify the ultimate recipient of the funds.
Hitachi
SEC
Various payments to Chancellor House Holdings (Pty) Ltd. (“Chancellor”), a local South African company that was a front for the African National Congress (“ANC”), South Africa’s ruling political party
BNY Mellon
SEC
The company provided “valuable student internships to family members of foreign government officials affiliated with a Middle Eastern sovereign wealth fund.”
Mead-Johnson
SEC
Certain health care professionals at state-owned hospitals in China
Bristol-Myers Squibb
SEC
Various health care providers at state-owned and state-controlled hospitals in China
