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Cameo Corruption, Part III: Meeting the Business Purpose Test Automatically

As we’ve seen in Part I and Part II of this series, a political cameo is valuable enough to operate as a bribe, but does Hollywood really need to worry about the practice exposing it to FCPA liability?

In this installment, I argue that casting a foreign official in a film automatically meets the FCPA’s business purpose test.

Broadly speaking, a filmmaker can have only two reasons to have a politician appear in a film. First, the filmmaker may wish to obtain something from the official. If that’s the case, the business purpose test is met and it begins to smell like old-school corruption, but it’s the less likely of the two scenarios. Instead, the filmmaker probably gives a role to an official because the filmmaker believes that the official’s appearance will improve the movie. But even in this seemingly legitimate situation, the business purpose test is met. By simply trying to improve the film, the filmmaker has attempted to gain a business advantage, because, after all, the filmmaker is in the business of making movies. With a better product, a filmmaker would increase her chances of turning a profit.

To illustrate the commercial effect of a political cameo on a film, let’s analogize from Governor Arnold Schwarzenegger’s appearance in The Expendables. His time on screen is brief, but the characters discuss Schwarzenegger’s political aspirations, so his status as a public official actually contributes substance to the film. Naturally, entertainment value is a subjective concept, but regardless of whether the director succeeded in improving the film, the decision to cast Schwarzenegger was almost certainly made with the intention of improving the film — enough for FCPA purposes.

Perhaps a more probative factor in determining whether Schwarzenegger’s cameo created a business advantage is the choice to use him to market the product, as he appears in the movie’s trailer. While it’s hard to calculate the marginal profit derived from Schwarzenegger’s appearance in the trailer, he was used in an attempt to gain at least some business advantage.

The filmmakers might argue that Schwarzenegger’s case is unique. After all, he’s a world-famous actor, not just a public official. But this shouldn’t change the analysis. The FCPA does not have any exceptions for foreign officials’ careers beyond public service. Additionally, in countries such as India and Russia, it’s common for professional actors to transition into politics while maintaining their acting careers.

Secondly, filmmakers may argue that the DOJ’s guidance requires an unfair business advantage to meet the business purpose test, and that a political cameo is fair. Looking closer at the guidance, however, we see that the underlying case law for the business purpose test operates on whether the bribe payer improves her business opportunities, either directly or indirectly. Under such an interpretation, if the politician’s appearance improves a movie, it has improved a business opportunity, which meets the implicit standard of the business purpose test.

In the next post, we’ll look at the last and least certain element — corrupt intent.

Part I of this series is here and Part II is here.


Ilya Zlatkin is a recent graduate of the University of Richmond School of Law and holds degrees in economics and foreign affairs from the University of Virginia. He is currently awaiting the results of the Illinois bar exam and is in the process of becoming a Certified Fraud Examiner. He can be contacted here.

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