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Once Upon A Time, The DOJ Did Specifically Identify “Foreign Officials” And Rep. Ros-Lehtinen Is Miffed That It Doesn’t Now


There are several material differences between how the DOJ enforces the Foreign Corrupt Practices Act in the modern era compared to the past.

For instances, as highlighted in this previous post, in the modern era the vast majority of corporate FCPA enforcement actions do not result in related individual charges against company employees. Between 1977 – 2004, the exact opposite was true – most corporate FCPA enforcement actions did result in related individual charges.

For most of the FCPA’s history, the DOJ either charged a business organization suspected of FCPA violations with an offense or did not charge the organization. In the modern era, the DOJ has created a buffet of options (non-prosecution agreements, deferred prosecution agreements) and added “declinations with disgorgements” to the buffet line in September 2016 (see here for the prior post).

As highlighted in this post, for many years the DOJ specifically identified “foreign officials” implicated in an FCPA enforcement action. However, in the modern era of FCPA enforcement the DOJ does not and Rep. Ileana Ros-Lehtinen (R-FL)(pictured) is rightfully miffed.

For many years, the DOJ specifically identified “foreign officials” implicated in an FCPA enforcement action.

For instance, in the DOJ’s first criminal FCPA enforcement action, the DOJ specifically identified Sir Albert Henry (the Leader of the Cook Islands Party and the Premier of the Cook Islands) as the “foreign official.” In another early DOJ FCPA enforcement action, the DOJ specifically identified Ali Jaidah (an official of the government of Qatar – specifically the Director of Petroleum Affairs) as the “foreign official.” In another early DOJ FCPA enforcement action, the DOJ specifically identified John H. O’Halloran (Chairman of the Trinidad and Tobago Racing Authority” as the “foreign official.” Several other examples could also be cited.

Indeed, as highlighted in this previous post, in 1982 Richard Shine (Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice (the name given to the DOJ’s then de facto FCPA Unit) gave a lecture titled “Enforcement of the FCPA by the Department of Justice” at Syracuse University that was published by the Syracuse Journal of International Law & Commerce – see 9 Syr. J. Int’l L. & Com. 283 (1982).

Among other interesting points highlighted in the prior post, Shine discussed the identity of the foreign official allegedly bribed and stated: “In our public pleadings, whether we are bringing an indictment or filing a civil complaint, generally we will not agree to withhold the identity of the foreign country or of the foreign official.”

That was then.

In the modern era of FCPA enforcement, the DOJ does not generally identify the “foreign officials” implicated in FCPA enforcement actions and Rep. Ros-Lehtinen is rightfully miffed.

In this January 6, 2017 letter to then Attorney General Loretta Lynch, Rep. Ros-Lehtinen stated:














As suggested by this recent press release by Rep. Ros-Lehtinen, the DOJ withheld “the names of the Ecuadorian officials referenced in the plea agreement entered into by the Brazilian construction company Odebrecht in connection with its Foreign Corrupt Practices Act (FCPA) violations in Ecuador.”

Reacting to the DOJ’s response, Rep. Ros-Lehtinen stated:

“In DOJ’s response to my letter, it agreed that FCPA ‘violations threaten our national security, the international free market, and the basic human rights of the many individuals affected by the corruption.’ However, DOJ stated that ‘it is generally against Department policy to discuss ongoing investigations or to name publicly unindicted co-conspirators’ and thereby would continue to withhold the names of the Ecuadorian officials involved in the scheme. DOJ said that it takes ‘very seriously allegations of FCPA violations,’ ‘routinely work[s] with foreign governments to bring the responsible wrongdoers to justice,’ and ‘in the Odebrecht case, the Department of Justice secured a guilty plea and the largest ever fine in a foreign bribery case as part of a coordinated resolution with authorities in Brazil and Switzerland.’

“Without the disclosure of the names of the Ecuadorian officials involved, ‘the responsible wrongdoers’ will not be brought to justice under the Correa regime. The regime’s corruption and lack of an independent judiciary are well documented and it cannot be relied on to investigate itself. As long as these Ecuadorian officials are allowed to continue avoiding justice, corruption in Ecuador will persist, U.S. national security and commerce will suffer, and the Ecuadorian people will not enjoy their basic human rights.”

Just remember though, in the words of the DOJ, “greater transparency benefits everyone.” (See here).

Free 90 Minute 2017 FCPA Year In Review Video

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