Page 21 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

In short, although the FCPA does not cover the middleman did not have any relationship with
every type of bribe paid around the world for every the foreign official, and simply kept the $500,000
purpose, it does apply broadly to bribes paid to payment. Even though there was no foreign official
help obtain or retain business, which can include actually receiving the bribe, the defendant was
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payments made to secure a wide variety of unfair convicted of violating the FCPA.
business advantages. 73 Also, as long as the offer, promise,
authorization, or payment is made corruptly, the
What Does “Corruptly” Mean? actor need not know the identity of the recipient;

To violate the FCPA, an offer, promise, or the attempt is sufficient. Thus, an executive who
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authorization of a payment, or a payment, to a authorizes others to pay “whoever you need to”
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government official must be made “corruptly.” As in a foreign government to obtain a contract has
Congress noted when adopting the FCPA, the word violated the FCPA—even if no bribe is ultimately
“corruptly” means an intent or desire to wrongfully offered or paid.
influence the recipient:
What Does “Willfully” Mean and
The word “corruptly” is used in order
to make clear that the offer, payment, When Does It Apply?
promise, or gift, must be intended In order for an individual defendant to be
to induce the recipient to misuse his
official position; for example, wrongfully criminally liable under the FCPA, he or she must
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to direct business to the payor or his act “willfully.” Proof of willfulness is not required
client, to obtain preferential legislation or to establish corporate criminal or civil liability, 82
regulations, or to induce a foreign official
to fail to perform an official function. 75 though proof of corrupt intent is.
The term “willfully” is not defined in the FCPA,
Where corrupt intent is present, the FCPA
but it has generally been construed by courts
prohibits paying, offering, or promising to pay money
to connote an act committed voluntarily and
or anything of value (or authorizing the payment,
purposefully, and with a bad purpose, i.e., with
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offer, or promise). By focusing on intent, the FCPA
“knowledge that [a defendant] was doing a ‘bad’ act
does not require that a corrupt act succeed in its
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under the general rules of law.” As the Supreme
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purpose. Nor must the foreign official actually
Court explained in Bryan v. United States, “[a]s a
solicit, accept, or receive the corrupt payment for
general matter, when used in the criminal context, a
the bribe payor to be liable. For example, in one
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‘willful’ act is one undertaken with a ‘bad purpose.’ In
case, a New York-based commercial real estate
other words, in order to establish a ‘willful’ violation
broker promised a middleman that he would pay a
of a statute, ‘the Government must prove that the
$2.5 million dollar bribe—and in fact paid $500,000
defendant acted with knowledge that his conduct
to the middleman as an upfront payment—to a
was unlawful.’”
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government official at the sovereign wealth fund
Notably, as both the Second Circuit and Fifth
of a Middle Eastern country in order to induce the
Circuit Courts of Appeals have found, the FCPA
sovereign wealth fund to buy an $800 million dollar
does not require the government to prove that a
office building complex owned by the broker’s client.
defendant was specifically aware of the FCPA or
However, unbeknownst to the real estate broker,
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