FCPA Compliance: Does “Anything of Value” Really Mean “Anything of Value”?
The FCPA statute is not as vague as some contend. I remember the words of a former FTC Chairperson who told me once – “The Clayton Act is not vague. I just read the law and apply it to the facts.”
Not to be too simplistic, I recognize there are legitimate disputes surrounding application of the FCPA to specific situations. As one example, I have enjoyed the back and forth between Matthew Stephenson (Here) and Andrew Spalding on the Global Anti-Corruption Blog, a favorite of mine, on the controversy surrounding the FCPA and hiring of relatives of foreign officials (Here).
The FCPA prohibits the offering to pay, paying or promising to pay money or anything of value to a foreign official in order to influence any act or decision of the foreign official or to obtain any other improper advantage in order to obtain or retain business.
The term “anything of value” means what it says – “anything of value.” This is a classic tautology but there is more to the issue. The question that commentators will pose is how far does “anything of value” extend when considering intangible benefits?
Two classic examples come to mind. The first, in the hiring of foreign officials debate, is the actual benefit to a foreign official when a company hires a close family member of the foreign official. Some argue that the hiring of the relative is not a benefit to the foreign official and therefore does not fall within the ambit of the FCPA.
While this is an interesting question, I focus my analysis on the requirement that the offender must act with “corrupt” intent. A gift or benefit, no matter how small, violates the FCPA if the person acts corruptly, meaning with the intent to induce or influence the foreign official to act contrary to his or her official duties.
Considered in this context, the theoretical and metaphysical consideration of intangible benefits becomes less difficult. For example, if there is no benefit to the foreign official, then presumably the foreign official will not be induced or influenced to act contrary to his or her official duties. My argument may be a little circular but let’s stop for a second.
If I hire a relative to a foreign official with the intent to influence the foreign official, my liability should not depend on whether we can provide a precise calculation of the “intangible benefit” to the foreign official. Instead, a prosecutor will have to prove beyond a reasonable doubt that I acted with corrupt intent to influence the government official by hiring his or her relative. That seems sufficient in my mind without having to resolve the existential question of what constitutes an intangible benefit.
Take another example involving charitable contributions. If I donate money to a charity maintained by a relative of a foreign official with the intent to induce or influence the foreign official, did I provide something of value to the foreign official?
Again, I start my analysis with the prohibition in mind – did I act with corrupt intent? The same act can violate the FCPA depending on the actor’s intent. In one case, if I donated money to a charity without any knowledge that the charity was connected to a foreign official, I would not violate the FCPA. On the other hand, if I donated money to a charity knowing the charity was connected to a foreign official and with the intent to induce or influence the foreign official to act contrary to his or her official duties, I would violate the FCPA.
In these circumstances, the focus on the question of a charitable donation constituting an intangible benefit with value is a red herring and obscures the true purpose of the FCPA – to prevent and prohibit actors giving money or any other item of value with the corrupt intent to induce or influence the foreign official.