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Defining Moment: 'Foreign Official' Under the FCPA
Prosecution of Foreign Corrupt Practices Act (FCPA) cases remains a top law enforcement priority of the Department of Justice (DOJ) and Securities and Exchange Commission (SEC). Since 2010, the DOJ and SEC have brought more than 150 FCPA enforcement actions against corporations and individuals and have collected billions of dollars in penalties. Most recently, French oil company Total S.A. entered into a non-prosecution agreement with the government and agreed to pay a $245 million penalty to the DOJ, and an additional $153 million in disgorgement and prejudgment interest to the SEC, to resolve FCPA charges related to bribes paid to Iranian officials.
The FCPA prohibits payments to a “foreign official” or a “foreign political party or official thereof of any candidate for political office” for the purpose of influencing acts of that official in his or her official capacity, or inducing the official to influence an act or decision of the government in order to obtain or retain business on behalf of a private concern. 15 U.S.C. ' 78dd-2(a)(1)-(2). While the concept of a “foreign official” might seem to be straightforward, it is actually quite murky.
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