Back to: CRIMINAL LAW
What is bribery and other illegal payments (kickbacks)?
Offering, receiving, or soliciting something of value for the purpose of influencing the action of an official in the discharge of her public or legal duties is illegal in both the domestic and international contexts. Under federal law, this sort of activity is prohibited by the Foreign Corrupt Practices Act, which specifically serves to prevent kickbacks to facilitate business transactions.
- Note: There is an exception under the FCPA that allows payment to individuals to undertake their procedural or routine tasks when such payments are customary in a country.
Discussion: Do you think businesses should be prevented from paying government officials for official action that helps or favors the business? Should these prohibitions apply outside of the United States as well? Does it change your opinion if the act of paying officials in a particular foreign country is so common that it is expected? Should there be an exception when bidding for contracts against foreign companies that are openly paying officials?
- Most people would say that bribing officials is a bad thing. Some might argue that paying bribes is a common practice in other countries and, sometimes, the only way to do business in foreign jurisdictions. Failing to take part in this accepted process leads to a disadvantage for US businesses. Others would argue that US businesses must be the ethical leaders throughout the world. Without the US taking a stand against unethical practices, then the rest of the world is far less likely to do so.
Practice Question: Sean owns a company and seeks to sell goods to the Brazilian government, specifically the development department. Sean knows that the Brazilian market is difficult to break into for foreigners. Sean, with the purpose of improving his chances of winning the contract, buys very lavish gifts and has them delivered to the home of the director of the development department. Has Sean committed a crime?
- Sean could be charged with the crime of bribery. Bribery is the act of giving money, goods, or other forms of compensation to a recipient in exchange for an alteration of their behavior (or the benefit/interest of the giver) that the recipient would otherwise not alter. Many types of payments or favors can constitute bribes, tips, gifts, favor, discount, waived fees, free foods, free advertising, free trips, free tickets, secret commission, or promotions. The key to identifying bribery is that it is intended to alter the recipient’s behavior. One of the challenges in determining whether or not someone has taken a bribe or simply accepted a gift is that the social and cultural norms governing bribery and gift giving can differ from place to place. A kickback is a form of negotiated bribery in which a commission is paid to the bribery-taker in exchange for services rendered. Sean willingly and intentionally bought the director a lavish gift with the aim of ensuring that his books be approved to be sold in Brazil.