From the perspective of FCPA compliance, the criteria for determining whether someone is a public official under the anti-bribery provisions of the FCPA have been the focal point for considerable controversy over the past year. The issue has arisen in more than one case that has gone to trial. It has also arisen in the context of Congresssional hearings.
Despite this seeming controversy, practitioners, in-house counsel, and FCPA compliance officials need to keep in mind that Section 1 of the UK Bribery Act applies to situations where the intended recipient of the improper inducement is not a public official. Where evidence exists of an underlying violation of Section 1 by an individual associated with an entity subject to the UK Bribery Act, the entity may be liable under Section 7 of the UK Bribery Act if it does not have an adequate compliance program in place.
Given the broad and often overlapping reach of the UK Bribery Act with the FCPA, prudence dictates that compliance programs prohibit improper inducements to anyone. This would include foreign public officials as well as anyone who may not be a public official. Aside from complying with the UK Bribery Act, a more general prohibition affords greater protection for any entity subject to the FCPA as it avoids or deters the likelihood of employees or agents getting into problematic situations where an individual’s status as a foreign public official may be uncertain.