Could a royal family member be hired by a US company to lobby the country in which the person was a royal?
In Opinion Releasee 12-01 the Requestor was a US lobbying firm, which desired to contract with a third party, the Consulting Company, which had as one of its principals, a member of the Royal Family in a country where royalty exists. The un-named country was not a monarchy and the Royal Family Member in question has only held one governmental position in the country’s government, in the late 1990’s. The work was to lobby the country’s Foreign Embassy in the US to represent the home country.
Representations. (1) The Consulting Company represented that “none of its members, or principals were ‘foreign officials’ under FCPA. (2) The principals and members were familiar with and agree to abide by the FCPA. (3) Consulting Company has represented that it has adopted the OECD 13 Good Practices.
Transparency. Requestor represented that there would be full transparency in not only the home country of the Consulting Company but in the US as well.
Compensation. First, the parties would agree “in advance on the scope of the Consulting Company’s work” for any set of services the Consulting Company provided. Additionally, any fee would be “at or below the amount charged by other entities…for such services.” Thereafter, the Requestor anticipated “paying to the Consulting Company twenty percent of what it receives from the Foreign Country Embassy, so long as that percentage accurately reflects the amount of work provided.” The Requestor even went so far as to list the amount of money it is expecting to pay each principal of the Consulting Company on a monthly basis; that being $2,000 per month to each principal. Taking the 20% figure noted above the fee would work out to be $6,000 per month, to the Consulting Company, which equates to a fee of $30,000 per month for lobby services that the Requestor would bill the Foreign Embassy.
Contract Review. The Requestor also agreed to allow the DOJ to review the consulting agreement.
It is clear that a person’s “mere membership in the royal family of the Foreign Country, by itself, does not automatically qualify that person as a foreign official.” The factors which should be considered include:
- The structure and distribution of power within a country’s government;
- A royal family’s current and historical legal status and powers;
- The individual’s position within the royal family; an individual’s present and past positions within the government;
- The mechanisms by which an individual could come to hold a position with governmental authority or responsibilities (such as, for example, royal succession);
- The likelihood that an individual would come to hold such a position;
- An individual’s ability, directly or indirectly, to affect governmental decision-making; and the (ubiquitous)
- Numerous other factors.
Also significant were factors from Opinion Release 10-03 which were: “(i) how much control or influence the individual has over the levers of governmental power, execution, administration, finances, and the like; (ii) whether a foreign government characterizes an individual or entity as having governmental power; and (iii)whether and under what circumstances an individual (or entity) may act on behalf of, or bind, a government.”
Based upon its analysis, the DOJ concluded, “The Department concludes that the Royal Family Member does not presently qualify as a foreign official” for the purposes of the FCPA.
Opinion Release 12-01 emphasized that there is no ‘one-size-fits-all’ analysis under the FCPA. While I probably never would have made the determination that a Royal Family Member is not a foreign governmental official under the FCPA, 12-01 makes clear that every analysis stands on its own facts and circumstances. The reason I would not have ever opined that a Royal Family Member was not a foreign governmental official, is that I have only used the “status analysis” that was used by the Carsoncourt
Opinion Release 12-01 introduced a “duties analysis” into the mix and both analyses can be used going forward. So under the status analysis, the DOJ stated that “The Royal Family Member also cannot, by virtue of his membership in the royal family, ascend to a governmental position and has no benefits or privileges because of his status as a Royal Family Member.” But 12-01 goes onto incorporate a duties analysis as well when it stated, “the Royal Family Member has no power to affect the Foreign Country government’s award of the engagement the Requestor seeks.”
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