A public official corruptly demanded, sought, received, and accepted something of value from a company in return for being influenced in the performance of an official act – specifically agreeing to help influence the award of a contract to a company who provided the official with the thing of value.
Sounds like a relatively straight-forward Foreign Corrupt Practices Act enforcement action and a fact scenario ripe for enforcement under the recently enacted Foreign Extortion Prevention Act (FEPA).
However, the above fact scenario does not involve a foreign official who demanded and received payments from a U.S. company, but rather a U.S. official who demanded and received payments from a South Korean company. (See here for the recent DOJ release).
According to the release, Bon Ku (a U.S. citizen) was employed by the Dragon Hill Lodge (DHL) which is owned by a U.S. Army base in Seoul, South Korea. DHL is one of five resorts operated by the Department of Defense under the Armed Forces Recreation Centers program.
Among other things, the DOJ release states:
“Between 2014 and 2021, Ku was also involved in four additional schemes in which he influenced the award of contracts valued at over $9 million in exchange for bribes from four South Korean companies, one of which was part of the conspiracy to which Ku pleaded guilty. As part of the bribe scheme to which Ku pleaded guilty, DHL awarded a contract to a South Korean company to, among other things, clean its loading dock. Prior to awarding this contract, Ku had an agreement with the company under which he would receive approximately 10-20% of the value of the contracts that were awarded by DHL. After entering into this agreement, Ku made a positive recommendation to DHL officials regarding the company’s ability to perform on the contract to influence its award to the company. Ku received payments related to this agreement from the company in his South Korean bank account …”.
As noted in the DOJ release, “Ku pleaded guilty to a dual-object conspiracy to commit theft of government property and bribery of a public official.”
Reading the DOJ release got me thinking of the FCPA and FEPA in reverse.
Regarding the FCPA in reverse, did South Korea bring an enforcement action against the South Korean company which paid bribes to Ku? After all, South Korea is a signatory to the OECD Convention and has its own “FCPA-like” law – the Act on Preventing Bribery of Foreign Public Officials in International Business Transactions. If there has not been an “FCPA-like” enforcement action against the South Korean company, why not?
Regarding the FEPA in reverse, I don’t know if South Korea has a “FEPA-like” law, but if South Korea does, was there a South Korea prosecution of Ku (a “foreign” official (as it relates to South Korea) who demanded and received a bribe from a South Korean company). Assuming South Korea does not have a “FEPA-like” law, should South Korea have such a law – in other words should South Korea prosecute “foreign” officials who demand bribes from South Korean companies? Or in such an instance does the “domestic” prosecution of the “foreign” official suffice from a justice standpoint (after all, the U.S. did prosecute Ku).
Sometimes it is interesting to think of U.S. laws – in this instance the FCPA and FEPA – in reverse.
