Jeffrey Clark of Willkie Farr & Gallagher moderated a conference on Defining “Foreign Official” Under the Foreign Corrupt Practices Act. David Stewart, U.S. Department of State and Georgetown University Law Center and Kathleen Hamann, U.S. Department of Justice led the discussion.
They start with a quote: why is a raven like a writing desk? (From Alice in Wonderland) There is no answer. There are some obvious examples. The problem is the “instrumentality of a foreign government” part of the definition of foreign official. The statute offers no clarification. The DOJ releases provide some examples: 94-01 and 08-01. There are some settlements that provide some guidance.
The issues is also pertinent to the OECD, the UN convention against corruption and other international treaties.
One thing to look at is whether a public official can veto or control the operations of the enterprise. It is not necessarily majority ownership or majority voting rights.
You can also look to the sovereign immunity. Would that person be protected by the sovereign immunity laws? If so, then they are public officials.
They also point out that a corrupt act is a corrupt act. You could be violating other non-public corruption laws. You should focus on not committing the corrupt acts.
It was clear from the discussion that companies are having a hard time figuring out when an entity is public and when it is private. If you can’t figure that out then you cannot figure out the individuals.