A “foreign official.”
Without one, there can be no FCPA anti-bribery violation (civil or criminal). Who were the alleged “foreign officials” of 2024?
This post highlights the alleged “foreign officials” from 2024 corporate DOJ and SEC FCPA enforcement actions.
As is apparent from the descriptions below, in certain instances the enforcement agencies describe the “foreign official” with reasonable specificity. In other instances there is less specificity as to the alleged “foreign officials.”
[Note: as in prior years, certain of the enforcement actions below technically only involved FCPA books and records and/or 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 element 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.]
SAP
The resolution documents described the following “foreign government entities and foreign officials” in South Africa.
“City of Johannesburg (“CoJ”) was a municipality in Johannesburg, South Africa, that administered certain city services to its constituents. Such services included electricity, waste and sanitation, and solid waste management, among others. CoJ was controlled by the government of South Africa and performed functions that South Africa treated as its own.”
“Department of Water and Sanitation (“DWS”) was a South African state-owned and state-controlled custodian of water services that operated to protect and manage the delivery of effective and safe water supply within South Africa. DWS was controlled by the government of South Africa and performed functions that South Africa treated as its own.”
“City of Tshwane (“CoT”) was a municipality in or around the area of Gauteng Province and Pretoria, South Africa. CoT delivered various municipal services to its residents, including agricultural assistance, law enforcement, and transportation services, among others. CoT was controlled by the government of South Africa and performed functions that South Africa treated as its own.”
“Eskom Holdings Limited (“Eskom”) was a South African state-owned and state-controlled energy company headquartered in Sunninghill, South Africa, that operated to generate and transmit electricity in South Africa. The South African government was the sole owner of Eskom shares. Eskom was controlled by the government of South Africa and performed functions that South Africa treated as its own.”
“CoJ Official 1,” a South African citizen whose identity is known to the United States and the Company, was a high-ranking executive of the City of Johannesburg.”
“DWS Official 1,” a South African citizen whose identity is known to the United States and the Company, was a high-ranking executive of the Department of Water and Sanitation.”
“Gauteng Official 1 a South African citizen whose identity is known to the United States and the Company, was an executive on the Gauteng Gambling Board and a director of multiple South African business entities.”
The resolution documents described the following “foreign government entities and foreign officials” Indonesia.
“Balai Penyedia dan Pengelola Pembiayaan Telekomunikasi dan Informatika (“BPSTI”) was an Indonesian state-owned and state-controlled Telecommunications and Information Accessibility Agency, operating under the auspices of the Indonesian Ministry of Communication and Information. BPSTI was controlled by the government of Indonesia and performed functions that Indonesia treated as its own.”
“The Kementerian Kelautan dan Perikanan (“KKP”) was the Indonesian Ministry of Maritime Affairs and Fisheries, led by the Indonesian Minister of Maritime Affairs and Fisheries, and developed and implemented policies in the marine and fisheries sector, among other activities. KKP was controlled by the government of Indonesia and performed functions that Indonesia treated as its own.
“Intermediary 6 … was an Indonesian company that worked with, and on behalf of, SAP Indonesia in its efforts to provide software and services to multiple Indonesian departments, agencies, and instrumentalities.”
“BP3TI Official 1,” an Indonesian citizen … was a high-ranking executive of BP3TI.”
“KKP Official 1,” an Indonesian citizen … was a high-ranking executive of KKP.”
Gunvor
Individuals associated with Petroecuador and individuals associated with the Ecuadorian Ministry of Hydrocarbons and the Ecuadorian Ministry of Energy.
Trafigura
Individuals associated with Petróleo Brasileiro S.A.
Boston Consulting Group
Individuals associated with the Angolan Ministry of Economy.
Deere & Co.
Individuals associated with the Royal Thai Air Force, Department of Highways, and Department of Rural Roads.
Moog
Individuals associated with South Central Railway (described as one of the Indian railway zones), Hindustan Aeronautics Limited (described as an Indian public sector aerospace and defense company), and Research Design and Standards Organization (a research and development organization under the Ministry of Railways).
RTX
An individual who served as a high-level official at the Qatar Emiri Air Force.
Telefonica Venezuela
Individuals “who served as a high-ranking Venezuelan government official.”
BIT Mining / 500.com
A member of the Japanese House of Representatives and Liberal Democratic Party, the Vice-Minister of Land, Infrastructure, Transport and Tourism, and the state Minister in charge of IRs [Integrated Resorts] at the Cabinet Office in Japan.
An assistant to the above individual.
Various Japanese National Diet members.
McKinsey
Individuals associated with Transnet SOC Ltd. (a company that operated as the custodian of South Africa’s ports, rails, and pipelines) and Eskom Holdings SOC Ltd. (a company that operated as South Africa’s public power utility).
AAR
Individuals associated with Nepal Airlines Corp., South African Airways, and South African Airways Technical.
Of the eleven corporate FCPA enforcement actions in 2024, six (55%) involved, in whole or in part, employees of alleged state-owned or state-controlled entities (“SOEs).
By way of comparison:
- In 2023, 64% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here).
- 2022, 70% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here).
- In 2021, 75% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here).
- In 2020, 83% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- In 2019, 57% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- in 2018, 53% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- in 2017, 54% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- in 2016, 78% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- in 2015, 55% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- in 2014 60% of corporate enforcement actions involved, in whole or in part, employees of alleged SOEs (see here);
- in 2013, 77% 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); and
- 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 a “instrumentality” under the FCPA such that its employees are “foreign officials” under the FCPA. As highlighted here and more extensively in this Supreme Court amicus brief supporting a 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.