A reader pointed out that our assault last week on Wikipedia (here) was senseless. That’s because if you don’t like something on Wiki — in our case its FCPA article — just change it. The community site, after all, calls itself “the free encyclopedia that anyone can edit.” We adopted our reader’s advice. And today we can report that all is well. There’s a newly revised FCPA page on the site (here).
In the old article there was a bank owner mistakenly designated as an FCPA foreign official because his brother was the minister of finance. Well, in the revised article he has a new incarnation. He’s still a bank owner, but he’s also the minister of finance. That’s right — we combined the brothers into a single person. It sounds awkward, but at least our new man’s status as a foreign official is confirmed — not by family relations, which he couldn’t do anything about even if he wanted to, but by his choice to take on governmental duties in the unnamed country.
That scenario, by the way, has played out in Indonesia and other countries from time to time. It happens when local business people — who might be agents or partners of U.S. companies — are named to government posts, thereby becoming foreign officials for the FCPA. Whenever a sales agent or business partner suddenly becomes a foreign official, there’s an urgent compliance need to review the commercial relationship — and probably terminate it. That’s because any business-related payments to the newly-minted foreign official might violate the FCPA. So the example of the bank owner cum-minister of finance works fine for Wiki.
Our few other alterations also found their way into the paragraph at issue. It now reads in relevant part like this:
The meaning of foreign official [under the FCPA] is broad. For example, an owner of a bank who is also the minister of finance would count as a foreign official according to the U.S. government. Doctors at government-owned or managed hospitals are also considered to be foreign officials under the FCPA, as is anyone working for a government-owned or managed institution or enterprise. Employees of international organizations such as the United Nations are also considered to be foreign officials under the FCPA. There is no materiality to this act, making it illegal to offer anything of value as a bribe, including cash or non-cash items. The government focuses on the intent of the bribery rather than on the amount.
It’s not a perfect description of the FCPA’s coverage, but it’s improving. Go Wiki.
2 Comments
The omission of prohibitions on payments to family members create a significant loophole. Are there any cases where business dealings with family members have been examined? My reading of the SEC statement on Statoil is that the Iranian official may not have had the formal authority to guarantee the contract but that it was his family connections which were being purchased.
Good point. But as far as we know, neither the FCPA itself nor any Opinion Releases or cases say that commercial dealings with family members of government officials is a per se violation of the FCPA. If a family member is being used to make an illegal payment “indirectly” to a foreign official, then a violation would probably result, in the same way that indirect payments through other agents are illegal. But the mere fact of the consanguinity is not determinative, and that was the problem with Wiki’s original article. No question, however, that dealing with family members of foreign officials always raises compliance red flags. It should probably avoided in most cases because of the risks. But under some circumstances commercial relationships with family members of foreign officials may be permissible under an effective compliance program.
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