In nearly all FCPA enforcement actions, agents, consultants, suppliers, distributors, and partners — whether real or faux — have a hand in bribery. They make approaches to foreign officials, set up offshore shell companies, generate fake invoices, and move money through accounts they own or control.
You’d think anyone knowingly paying bribes and laundering money would be super discrete and able to keep silent forever. But in fact, intermediaries are notorious blabbermouths.
In so many FCPA investigations, evidence in the form of emails, chats, and texts turn up in which intermediaries talk openly about bribery. There are several reasons why. Here are some of those reasons:
They want reimbursement. Arranging and paying bribes can cost a lot. When intermediaries go out-of-pocket, they can be sticklers. Expense reports from those involved in bribery are smoking guns. The reports can show coordinated travel schedules, dates and locations of illicit meetings, golf games, meals, costs to set up offshore companies, and so on.
They want that success fee. Many intermediaries have expensive lifestyles. As part of their business presentation, some own jets, yachts, and multiple homes. They also need staff to help keep things running. So when it comes to collecting fees — both retainers and success fees — they’re aggressive. Sometimes, when explaining why payment is due, they’ll draw direct lines from their “work” of arranging and paying bribes to contracts awarded to their client.
They try to be accountable. Many intermediaries like and admire their corporate clients and identify closely with them. They enjoy any chance to be “part of the team.” As good teammates, they produce “activity reports.” It’s ironic and sad to watch intermediaries mimic corporate behavior as a way to gain acceptance and respectability, but end up blowing things sky high.
They want honor and glory. Agents are people. They’re proud of themselves when they accomplish something notable. As odd as it sounds, arranging bribes, especially bribes that work, is a notable accomplishment in their world. Successfully crooked intermediaries (let’s call them) feel they’ve won bragging rights. So they brag.
They want accomplices. No intermediary wants to be left holding the bag. Maybe “deniability” is accepted in the world of espionage. “If you’re caught, we’ll deny any connection between you and us.” But to bribe-paying intermediaries, deniability is the enemy. Intermediaries need evidence showing they weren’t acting alone but on behalf of bigger fish. That evidence might someday save their necks, either as a way to convince the client to keep them out of it, or as something of value to offer prosecutors in exchange for a free pass or leniency. Intermediaries therefore have powerful incentives to create real-time evidence showing they have accomplices on the inside and are only a cog in a much bigger machine.
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