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It All Depends What The “B” Word Means


Often times, discussion of complex legal or public policy issues is clouded by simplistic rhetoric and narrative spinning.

Just don’t bribe. A zero tolerance for bribery.

Sounds good and to be sure in certain FCPA Act enforcement actions the simplistic rhetoric and narrative is actually true. For instance, Siemens had a “corporate culture in which bribery was tolerated and even rewarded at the highest levels of the company.” Odebrech/Braskem maintained a business unit that allegedly “served as little more than a bribe-paying department for the benefit of Odebrecht and Braskem.”

Yet in many other FCPA enforcement actions – and the FCPA compliance discussion generally – cliches like “just don’t bribe” and a “zero tolerance for bribery” are overly simplistic because it all depends on what the “b” word means.

The “b” word often depends on context.

In other words, there is nothing inherently wrong, illegal or unethical about the “thing of value” provided, but the context of the “thing of value,” and who it is provided to or promised to, matters.

For example, “golf in the morning and beer-drinking in the evening” (see here) is … well … golfing and drinking something that is done on a weekly basis by many people. Yet, few would use the “b” word to describe this activity.

Charitable donations (see here for example) are … well … charitable donations and many would applaud business organizations for being good corporate citizens and engaged in their communities. Yet, few would use the “b” word to describe this activity.

Internship and jobs (see here for example) are … well … internships and jobs and business organizations offer them to individuals on a daily basis. Yet, few would use the “b” word to describe this activity.

Likewise several FCPA enforcement actions have involved individuals receiving tickets or hospitality packages to major sporting events such as the Olympics or World Cup.

Viewing current events through a FCPA lens is an occupational hazard.

Thus, I could not help thinking about the above concepts when learning that 7,500 healthcare workers in the U.S. received “free Super Bowl tickets and gameday experiences directly from the NFL … to thank and honor them for their continued extraordinary service during the pandemic.” (See here). Among the pre-game festivities was a concert by Miley Cyrus (see here) and the “total valuation of the tickets for the 7,500 healthcare workers [was] $18.75 million.” Certain NFL teams also provided free transportation to the Super Bowl to the healthcare workers on their team plane. (See here).

Just to be clear, I agree that these front-line workers are deserving – as any –  of these gestures, but that is not the point.

The point is that these healthcare workers (who would most certainly be considered “foreign officials” by the DOJ/SEC if they worked in most foreign countries) were provided “things of value” – the same general “things of value” alleged in certain FCPA enforcement actions.

In other words, when throwing around the “b” word context matters, and simplistic, narrative spinning cliches such as just don’t bribe and a zero tolerance for bribery are rather silly.

Yet some commentators persist (see here) “a bribe is a bribe and no matter how you characterize the payment, it is still a bribe.”


It all depends what the “b” word means and context matters.

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