One area where compliance officers and practitioners need to focus is on the requisite intent for a criminal violation. For compliance officers facing difficult policy choices on FCPA compliance policies, the touchstone of such policies should be the employee’s intent — was it criminal, negligent or benign?
It is one thing to have a policy which requires prior approval for any gift to a foreign official with a value of over $50 but it is another to examine the amount, the employee’s intent, the context and the surrounding circumstances to determine if the employee was giving the gift with the intent to break the law – ultimately that is the question and the standard to apply.
The FCPA has three separate knowledge or scienter standards for an anti-bribery criminal violation:
(1) any violation must be done “corruptly”;
(2) for criminal penalties to be imposed on an individual, the individual must additionally have acted “willfully” (for corporations, there is no requirement that the violation be committed “willfully”); and
3) if liability is premised on a payment to a third party, the payment must have been made “while knowing” that the money or thing of value would be directed in whole or part to a foreign official...
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