fcpa-resource-guide

In short, while the FCPA does not cover every type
of bribe paid around the world for every purpose, it does
apply broadly to bribes paid to help obtain or retain business,
which can include payments made to secure a wide
variety of unfair business advantages. 73
What Does “Corruptly” Mean?
To violate the FCPA, an offer, promise, or authorization
of a payment, or a payment, to a government official
must be made “corruptly.” 74 As Congress noted when
adopting the FCPA, the word “corruptly” means an intent
or desire to wrongfully influence the recipient:
The word “corruptly” is used in order to make clear
that the offer, payment, promise, or gift, must be intended
to induce the recipient to misuse his official
position; for example, wrongfully to direct business
to the payor or his client, to obtain preferential legislation
or regulations, or to induce a foreign official to
fail to perform an official function. 75
Where corrupt intent is present, the FCPA prohibits
paying, offering, or promising to pay money or anything
of value (or authorizing the payment or offer). 76 By focusing
on intent, the FCPA does not require that a corrupt
act succeed in its purpose. 77 Nor must the foreign official
actually solicit, accept, or receive the corrupt payment for
the bribe payor to be liable. 78 For example, in one case, a
specialty chemical company promised Iraqi government
officials approximately $850,000 in bribes for an upcoming
contract. Although the company did not, in the end, make
the payment (the scheme was thwarted by the U.S. government’s
investigation), the company still violated the FCPA
and was held accountable. 79
Also, as long as the offer, promise, authorization, or
payment is made corruptly, the actor need not know the
identity of the recipient; the attempt is sufficient. 80 Thus, an
executive who authorizes others to pay “whoever you need
to” in a foreign government to obtain a contract has violated
the FCPA—even if no bribe is ultimately offered or paid.
chapter 2
The FCPA:
Anti-Bribery Provisions
What Does “Willfully” Mean and When
Does It Apply?
In order for an individual defendant to be criminally
liable under the FCPA, he or she must act “willfully.” 81 Proof
of willfulness is not required to establish corporate criminal
or civil liability, 82 though proof of corrupt intent is.
The term “willfully” is not defined in the FCPA, but
it has generally been construed by courts to connote an
act committed voluntarily and purposefully, and with a
bad purpose, i.e., with “knowledge that [a defendant] was
doing a ‘bad’ act under the general rules of law.” 83 As the
Supreme Court explained in Bryan v. United States, “[a]s a
general matter, when used in the criminal context, a ‘willful’
act is one undertaken with a ‘bad purpose.’ In other
words, in order to establish a ‘willful’ violation of a statute,
‘the Government must prove that the defendant acted with
knowledge that his conduct was unlawful.’” 84
Notably, as both the Second Circuit and Fifth Circuit
Courts of Appeals have found, the FCPA does not require
the government to prove that a defendant was specifically
aware of the FCPA or knew that his conduct violated the
FCPA. 85 To be guilty, a defendant must act with a bad purpose,
i.e., know generally that his conduct is unlawful.
What Does “Anything of Value” Mean?
In enacting the FCPA, Congress recognized that bribes
can come in many shapes and sizes—a broad range of unfair
benefits86 —and so the statute prohibits the corrupt “offer,
payment, promise to pay, or authorization of the payment of
any money, or offer, gift, promise to give, or authorization of
the giving of anything of value to” a foreign official. 87
An improper benefit can take many forms. While
cases often involve payments of cash (sometimes in the
guise of “consulting fees” or “commissions” given through
intermediaries), others have involved travel expenses and
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