When the Dust Settles

Documents used to resolve a typical FCPA enforcement action (whether a non-prosecution or deferred prosecution agreement, plea, or settled civil complaint) are often peppered with vague generalities.

This is not surprising given that there is little serious threat of defense challenges and/or judicial scrutiny.

One element that is often vaguely described is the "foreign official" recipient of the alleged bribe. (This is in contrast to what the U.K. SFO has been doing in some of its recent enforcement actions when it "names names" - see here and here).

For instance, in the recent Daimler action (see here), certain of the "foreign officials" are described simply as follows:

"Nigerian government officials," "high-level members of the executive branch of the Nigerian government," "high-level executive branch official of Nigeria," and "a member of the Nigerian police force" and

"senior official of a [Egypt] government owned factory."

Given the ease in which information now flows and the world-wide interest in corruption and bribery, FCPA enforcement actions are read around the world.

Not only by foreign government officials and law enforcement agencies, but also by foreign media, foreign-based non-governmental organizations, and just plain old people.

It is thus not surprising that when the dust settles on the U.S. FCPA enforcement action, many are left wondering ... who are those "foreign officials"?

For the foreign government involved, it is potentially embarrassing to have "one of your own" (assuming that all "foreign officials" in FCPA enforcement actions are properly deemed as such) become the focus of a bribery investigation in the U.S. without doing something about it "at home."

Thus, with increasing frequency, one sees stories such as this recent Reuters report which details how the Nigeria Economic and Financial Crimes Commission has begun to probe the alleged bribe payments to the Nigerian "foreign officials" mentioned above.

What about that "senior official of a [Egypt] government owned factory"?

I've been told that this issue has become sort of a guessing game in Egypt and that Egyptian authorities have launched an investigation (see here)

Whether such foreign government investigations are bona fide or merely politically expediate cover is a valid question.

However, the take-away point is that just because the U.S. Foreign Corrupt Practices Act enforcement action is over, does not necessarily mean that all the dust has settled. Often, other persons, for entirely different reasons, remain interested.