Several laws, not one
There is no single U.S. bribery law. Federal statutes cover bribery of federal officials, bribery connected to organizations that receive federal funds, honest services fraud, and the use of interstate travel or communications to carry out bribery that violates state law. The Foreign Corrupt Practices Act covers payments to foreign officials, and a newer federal law makes it a crime for a foreign official to demand or accept a bribe from U.S. businesses. New York has its own offenses for bribing and receiving bribes as a public servant, and it separately criminalizes commercial bribing, meaning kickbacks between private businesses and employees. Which law applies depends on who received the benefit, what they controlled, and where the money moved.
Where the lines are drawn
Courts have narrowed several federal bribery theories in recent years. The Supreme Court has held that arranging a meeting or making a call is not by itself an official act, and that the federal law covering organizations that receive federal money reaches bribes but not gratuities given after the fact without a prior agreement. State laws may still treat gratuities to public officials as offenses, and agency ethics rules often prohibit gifts that are not crimes at all. The usual question is whether there was an exchange, express or implied, of something of value for an official decision or business action. Gifts, meals, and travel that fit within written policies are usually manageable, but cash, payments routed through relatives, and fees for vague consulting deserve close review.
Questions before you act
If you are being asked for a payment, or you have learned that one may have been made, the first step is usually to stop the payment and preserve the records, not to confront anyone. In a first meeting we look at who was involved, what was given and what was expected in return, and whether federal, state, or foreign law is engaged. For businesses, we review gift and hospitality policies, third-party contracts, and approval records to see whether the issue is a policy gap or something more. Where a report or disclosure may be appropriate, we discuss its timing and risks before anything is sent.
