Corrupt Intent and Bribery
In my showcase of profound but obvious points, let me add to my collection – an illegal bribe often turns on the actor’s state of mind. Did he or she act with corrupt intent?
The actor’s state of mind is a common element to many criminal offenses. In most cases, the government has strong evidence of such corrupt intent. In some cases, the government is praying that the evidence they have will persuade a jury that the individual was acting with the requisite corrupt intent.
In the FCPA context, corrupt intent is defined as seeking to influence or persuade a foreign official to act or fail to act contrary to his/her established duty. In other words, the individual is seeking to pay or offer money or something of value to a foreign official to have the foreign official ignore a responsibility or duty.
Let’s look at an example – an individual may pay a government official to win a tender in a competitive RFP. By paying the money to the government official, the individual is causing the foreign official to act contrary to his/her duty to carry out a procurement process that awards the tender to the best proposal. The individual is acting with corrupt intent.
The proof of this quid pro quo is the difficult part. It is amazing but individuals will sometimes easily state such expectations in an email or state it clearly in front of a witness or a participant in the criminal scheme.
Even when there is evidence surrounding an individual’s state of mind, there can be significant nuances to an individual’s intention. Sometimes the evidence is more equivocal. An individual may not make any statement or leave an email trail – instead the individual may act from an “understanding” based on ambiguous statements that usually involve inferences from the individual’s conduct. This is where the issue can get very dicey.
In some cases, the facts by themselves can supply the intent. For example, if I take the government official responsible for a tender out to dinner during the pendency of the tender, spend $5000 for a dinner for two, and then hand the government official keys to a new car at the end of the dinner, common sense dictates that I acted with corrupt intent to influence or persuade the government official to act in my favor when reviewing responses to an RFP.
But life is not so black and white. There are various shades of grey that occur. This same analysis occurs often in the compliance arena when CCOs are asked to draw lines between acceptable hospitality and unacceptable hospitality.
In the drug and device industries, this issue often arises when it comes to medical conferences. A medical device company has an interest in educating and training physicians, who are often foreign officials under the FCPA, on their specific products, the benefits of the products and innovations in treating patients with their respective drugs and devices.
A drug or device company may conduct an annual conference of physicians to present information on medical issues, invite researchers to conduct sessions, and share information and training on best practices. To encourage physician attendance at a central location, the drug and device company will pay for physicians to travel to the location and cover their lodging and meals. All of this sounds legitimate.
Unfortunately, the industry has veered off from these legitimate purposes and ended up layering on extraneous activities, such as tourist travel, added family members to travel, entertainment, and a range of luxury gifts and benefits. As such non-legitimate payments and benefits increase, the drug and device companies slide into the zone of corrupt intent.
Suddenly, what sounded like a legitimate medical conference with laudable goals directed at improving patient care, has now become a vehicle to confer benefits on physicians to influence them to prescribe or utilize the company’s products contrary to their duty to select the most effective medical treatments for a specific patient.
The slippery slope is just that – a slope, where an individual’s conduct can easily cross the line from legal to illegal. Compliance has to wrestle with these kinds of distinctions every day when managing risks.