Companies that do business in foreign countries often run into situations where a government official demands a “fee” or other payment. This puts your business in an awkward position. On the one hand, not complying with these payment “requests” can make it impossible to do business in certain countries.
On the other hand, it’s against U.S. law. The Foreign Corrupt Practices Act of 1977 makes it a federal crime for a U.S. citizen to pay a foreign official in order to obtain business from any person. In other words, paying a bribe or kickback can lead to serious criminal charges in this country, even if the alleged payment took place abroad.
Required elements to prove bribery
Telling the difference between a legitimate foreign business tax or fee and an illegal bribe is not always simple. Here are the elements of bribery under federal law.
- The individual receiving the payment or benefit is some kind of “public official,” either an elected official or federal employee.
- A “thing of value” has been offered. This can be a tangible thing like cash or an intangible thing like power or support.
- An “official act” is involved that a bribe could influence, such as a decision to approve a license or a piece of pending legislation.
- The public official has the authority to commit the official act.
- The bribing party intends a particular result.
There must be a causal connection between the payment and the official act. Coincidental timing between the payment and the act is insufficient to prove that a bribe has occurred.
A business executive or owner accused of bribing a foreign official could face prison time, a massive fine, and potentially irreparable damage to their reputation. Your first move after learning you are under investigation should be to speak with a defense attorney who handles high-profile white-collar criminal matters.