greek doctors are “foreign government officials” February 6, 2012Posted by Bradley in : corruption , 5comments
According to the SEC which charged Smith & Nephew PLC with violations of the FCPA (Smith and Nephew settled):
The SEC’s complaint against Smith & Nephew PLC alleges that its subsidiaries used a distributor to create a slush fund to make illicit payments to public doctors employed by government hospitals or agencies in Greece. On paper, it appeared as though Smith & Nephew’s subsidiaries were paying for marketing services, but no services were actually performed. The scheme basically created off-shore funds that were not subject to Greek taxes to pay bribes to public doctors to purchase Smith & Nephew products.
Last year the Central District of California held that:
a state-owned corporation having the attributes of CFE may be an instrumentality” of a foreign government within the meaning of the FCPA, and officers of such a state-owned corporation, as Messrs. Nestor Moreno and Arturo Hernandez are alleged to be, may therefore be “foreign officials” within the meaning of the FCPA
But even if this is a correct interpretation of the FCPA, isn’t there a real difference between officers of a government owned corporation and doctors in a hospital? Are the doctors “officials” in any real sense?