Interesting challenge to US bribery statute with FCPA implications
FCPA lawyers and compliance professionals spend an inordinate amount of time monitoring corporate gift, meal and entertainment expenditures around the world, trying to prevent expenditures that constitute “anything of value” to a “foreign official” that might violate the FCPA. It can be a vexing task to identify the line between an innocent gratuity or business courtesy and a corrupt payment that might constitute a federal crime. DOJ and SEC guidance to date has amounted to little more than, “we don’t (and are not going to) prosecute small token payments and you should know the difference.”
It appears that the U.S. Supreme Court is concerned with this sort of criminal law ambiguity. As Celeste Bott reports in her article, “Justices Suggest Bribery Law Could Criminalize Routine Gifts” in Law360, yesterday the Supreme Court heard arguments in an appeal of the Seventh Circuit’s ruling in Snyder v. U.S., which found the federal bribery statute, 18 U.S.C. Section 666, criminalizes gratuities given to a public official after they have taken an official action, without needing to prove there was a quid pro quo beforehand. Many of the comments made by the Justices at oral argument suggest skepticism that the qualifier “corruptly” is sufficient to clearly distinguish criminal from non-criminal actions.
Different statute, but similar words as the FCPA. The SCOTUS opinion in Snyder could be relevant to interpreting the FCPA and will be worth reading carefully.
During more than an hour of tough questioning, the justices expressed their misgivings about the scope of a federal statute that prohibits “corruptly” soliciting anything of value with the intention of being “influenced or rewarded.” At various points, they considered whether Starbucks gift cards, Trader Joe’s wine, Harry & David fruit baskets, trips to the Cheesecake Factory or other tokens of gratitude could be criminal.
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