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Back On Track

Our recent fall from grace wasn't exactly Spitzerian in scale. We're talking about our assault last week on Wikipedia (here). But the attack, as one reader pointed out, was senseless, 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 "the free encyclopedia that anyone can edit."

Our defense is flimsy. By now everyone knows about the Justice Department's undeclared moratorium on deferred prosecution agreements -- owing to the flap in Washington over monitorships (here and here). That bottleneck in the criminal justice system has temporarily dried up the FCPA news and left us with idle hands. So we fell into temptation. To atone, we took our reader's advice and submitted a few edits to Wikipedia. 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 manager 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 manager, 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 manager-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.

By the way, Wikipedia -- our new favorite source of information about everything -- already has the latest news. It says Client-9 announced his resignation as governor of New York, effective March 17, citing "private failings." Go Wiki.

Full post as published by The FCPA Blog on March 16, 2008 (boomark / email).