A recent FCPA Blog post explained how, by a “quirk of American jurisprudence, something worth less than a cup of coffee or taxi fare can become an illegal bribe under the FCPA.” I’d like to add that if something worth less than a cup of coffee or taxi fare (or something more substantial) is offered, but for whatever reason is not accepted, or does not result in obtaining or retaining business, it is still a bribe.
You heard that right. A bribe that’s offered but doesn’t happen and doesn’t change anything commercially can still be a crime. That’s a lesson I learned the hard way.
My DOJ Statement of Offense referred to someone from my former employer as “Employee D,” who told me that if our company agreed to pay a kickback to someone from the Independent National Election Commission of Nigeria (INEC Official), we would win an order for fingerprint ink pads for an upcoming election.
It was going to be a massive order, and I authorized Employee D to use a third party to pay the kickback, knowing the money would “then be passed on to the INEC official.”
How did this story end? With a criminal conspiracy for which I was charged, despite the fact that the “purchase that never happened.”
That speaks to a hazardous illusion on the frontlines of operations: promising more bribes because you know that some of them won’t result in winning any business. It’s that “you can’t win them all” proposition which can create an even greater peril. We fool ourselves into thinking we should use any means to game the system because the odds of success are already against us. That was regretfully how I looked at the marketplace, due to no one’s fault but my own.
Even in the best of situations and markets, front-line personnel in far flung global operations can feel detached from organizational values and codes. Today, we’re also facing a looming global recession, supply chain disruptions, along with tremendous personnel turnover and hybrid schedules. People are feeling enormous pressure to demonstrate their “virtual value” to supervisors, where they might think about shortcuts, including sacrificing integrity to succeed.
The psychology at work today can take an even sharper turn in the wrong direction when employees and teams fail to understand that even if a corrupt offer or promise becomes illusory, the end result of potential prosecution is quite real.
No matter how many times we hear it, it can still be difficult to grasp the idea that a corrupt offer that’s not accepted and doesn’t produce anything commercially can still be illegal. So, maybe during your next training session, explain again (and again) how even if that offer of value, or even of little value, doesn’t work, the possibility of criminal prosecution is still very much present. In my case, that “purchase that never happened” caught up to me two years later.
It’s always worthwhile to share with as many of your teams as possible that going to prison for something that never happens — which means going to prison for nothing — can’t possibly be worth it. Now, that’s something to think about.