Navigating the FCPA: "Anything of Value" as Examples of Bribes under the FCPA

There are numerous examples of what constitutes "anything of value" in the context of bribing foreign officials under the FCPA. Even small offerings intended to improperly influence a foreign official's decision are prohibited and can result in significant penalties.

While not an exhaustive list, here are some examples of anything of value:

• Cash and Cash Equivalents: Offering cash or cash equivalents, such as gift cards, to a foreign official is prohibited under the FCPA. This is because these forms of payment are easily concealable and often leave no paper trail, making them susceptible to misuse. For example, a company provided government bank officials with annual cash gifts ranging from less than $100 to a little more than $600. Despite the seemingly insignificant amounts, these gifts were deemed violations by the DOJ because they were intended to influence the officials' purchasing decisions.
• Gifts: The FCPA prohibits offering gifts of any value to foreign officials if they are intended to improperly influence their decision-making. Appropriate “gifts” are items like calendars, pens, mousepads, or books as they are of modest value and serve a practical purpose. However, luxury items such as sports cars, fur coats, watches, handbags, and golf clubs are explicitly listed as examples of inappropriate gifts due to their extravagant nature, which suggests an intention to improperly influence the recipient.
• Travel and Entertainment:  Providing foreign officials with lavish trips or entertainment can be construed as a bribe under the FCPA, particularly if the arrangements lack a clear business justification. One company spent $1.8 million on pleasure trips for foreign officials, including visits to Disneyland, Paris, and New York City. Extravagant travel arrangements, especially those primarily focused on leisure rather than legitimate business activities, are likely to attract scrutiny from enforcement agencies. Similarly, meals and entertainment provided to foreign officials should be modest, appropriate to the circumstances, and provided without any expectation of favors in return.
• Charitable Contributions: Donating to charities can be problematic if the donation is made to influence a foreign official who has influence over the charity or its activities. An illustration of this is where a company made charitable contributions to a foundation headed by a foreign official who had authority over the allocation of healthcare funds. The connection between the donation and the official's ability to influence business decisions led to FCPA violations.
• Other Examples: Other examples of "anything of value" that could be considered bribes under the FCPA, include:
  • Stock or other business interests: Offering a foreign official a stake in a company or a share of its profits is strictly prohibited.
  • Personal favors: This can include providing employment opportunities or scholarships to family members of foreign officials.
  • Discounts and loans: Giving preferential treatment to foreign officials in the form of discounts or favorable loan terms can also be considered a violation.

It's crucial to remember that the determination of whether something is considered "anything of value" under the FCPA depends on the specific circumstances and the intent behind the offering. Even seemingly innocuous gestures can have grave consequences if they are part of a pattern of behavior intended to improperly influence foreign officials.

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