The Foreign Corrupt Practices Act of 1977 (FCPA) remains one of the most consequential and rigorously enforced anti-bribery statutes in the world. Its anti-bribery provisions prohibit covered persons and entities from offering, paying, promising, or authorizing the payment of “anything of value” to a foreign government official for the purpose of “obtaining or retaining business.” Decades of DOJ and SEC enforcement have stretched both concepts far beyond their plain meaning.

The FCPA Anti-Bribery Provisions: A Brief Orientation

The FCPA’s anti-bribery provisions (15 U.S.C. §§ 78dd-1 through 78dd-3) prohibit issuers, domestic concerns, and any person acting within U.S. territory from corruptly offering, paying, promising to pay, or authorizing the payment of “anything of value” to a “foreign official” in order to “obtain or retain business” or to secure an “improper advantage.” The statute also captures payments made to any person where the paying party “knows” the money will be passed on to a foreign official.

I. “Anything of Value”

A. The Statutory Language

The FCPA does not define “anything of value.” Congress deliberately chose broad language to capture the full range of corrupt inducements. The Senate Report accompanying the Act made clear the phrase was intended to cover “money, gifts, travel, meals, entertainment, loans, promises of future employment, and other advantages.”

B. Cash and Cash Equivalents

“Anything of value” covers direct cash payments, wire transfers, checks, prepaid debit cards, money orders, cryptocurrency, and similar instruments. In the landmark Siemens AG case (2008), the DOJ and SEC charged the company with channeling over $1.4 billion in bribery payments across dozens of countries over a decade.

C. Gifts, Meals, Entertainment, and Travel

The phrase extends with equal force to non-cash items: luxury gifts, paid travel to tourist destinations under the guise of “factory inspections” or “training programs,” lavish meals and entertainment. What distinguishes permissible business hospitality from a bribe is not the form of the benefit but the intent with which it is given. The FCPA contains a narrow affirmative defense for “reasonable and bona fide” expenditures directly related to product promotion or contract execution, but this defense requires demonstrating genuine business purpose, not merely a label.

D. Employment, Internships, and Business Opportunities

Providing employment or internships to relatives of foreign officials constitutes a thing of value provided to the official, because the employment benefits someone in whom the official has a personal interest. The DOJ and SEC settled several substantial cases on this theory, including enforcement actions against JPMorgan Chase (2016, $264 million). Awarding consulting or subcontracting business to companies owned by or affiliated with foreign officials carries the same risk.

E. Charitable Donations, Political Contributions, and Sponsorships

Payments to charities or foundations designated by foreign officials have been the subject of enforcement action when connected to official action. Sponsoring events or publications favored by government officials at the official’s direction can constitute value delivered to or for the benefit of that official. Political contributions to foreign parties may constitute an offer of value if made with corrupt intent even where permitted under foreign law.

F. Discounts, Favorable Contract Terms, and Regulatory Forbearance

Benefits that do not involve any outward transfer of money or goods can still satisfy “anything of value”: a below-market loan or lease to an official or their relatives, preferential pricing, waiver of contractual obligations, or a favorable business referral. In the Och-Ziff Capital Management enforcement action (2016), investment deals structured to benefit sovereign wealth fund officials were treated as things of value.

G. Intangible Benefits

The standard also reaches purely intangible benefits. Providing an official with favorable press coverage, a prestigious speaking engagement, or an introduction to a high-profile contact has been treated by enforcement authorities as potentially within scope when offered to influence official conduct.

H. Practical Takeaway on “Anything of Value”

The breadth of “anything of value” demands a compliance posture that focuses on substance and intent, not form. Any benefit—regardless of how it is characterized, routed, or structured—that is given to influence a foreign official is presumptively within scope. Compliance programs need clear, value-conscious policies governing gifts and entertainment, charitable giving, travel and hospitality, hiring, subcontracting, and any other channel through which economic or personal benefit can flow toward a government decision-maker.

II. “Obtain or Retain Business”

A. Early Ambiguity and the Nexus Requirement

The Fifth Circuit’s decision in United States v. Kay (2004) established the modern, expansive reading: the phrase covers any payment intended to assist in obtaining or retaining business or directing business to any person, even if the benefit is indirect. Reducing a company’s tax burden, obtaining a favorable tariff classification, or expediting customs clearance all assist the company’s business operations and fall within the prohibition.

B. Securing Government Contracts and Concessions

The most straightforward application involves payments made to win government contracts, public procurement awards, licenses, concessions, or privatization opportunities. The Siemens matter provides the most striking illustration: payments were made across dozens of jurisdictions to secure infrastructure, energy, and telecommunications projects.

C. Regulatory Approvals and Permits

Following Kay, the government successfully applied the “obtain or retain business” prong to payments made to secure regulatory approvals, product registrations, operating licenses, and other governmental authorizations that are prerequisites to commercial activity. A company cannot conduct business without required permits; bribing the official who approves them therefore “assists” the company in obtaining or retaining its business.

D. Avoiding Adverse Government Action

“Retain business” covers payments made not to secure a new benefit but to avoid a negative one: a tax assessment, fine, license revocation, adverse inspection outcome, or enforcement action. The Alcoa enforcement action (2014) illustrated this: payments to avoid losing an existing alumina supply contract fell squarely within “retain business.”

E. Directing Business to Third Parties

The FCPA also covers payments made “to direct business to any person” (language added in 1988). A company that bribes a foreign official to steer a contract to a joint venture partner, subcontractor, or distributor can violate the FCPA even though the payer does not directly receive the business.

F. Third-Party Intermediaries and the “Knowledge” Standard

The government applies a “knowledge” standard to payments through agents, consultants, distributors, or joint venture partners: the company is liable if it “knew” the third party was likely to make a corrupt payment, or if it was “consciously aware” of the corrupt purpose. Deliberately ignoring red flags—”willful blindness” or “conscious disregard”—is sufficient. Companies cannot willfully look away from corruption risks and then disclaim responsibility.

G. The “Improper Advantage” Extension

Congress amended the FCPA in 1998 to add “securing any improper advantage” as an alternative to “obtaining or retaining business.” This captures bribes paid to influence official action even when the benefit to the company is not easily characterized as “business”: securing favorable regulatory treatment, obtaining confidential government information, or receiving priority consideration in administrative proceedings.

H. Facilitating Payments: A Narrow Carve-Out

The FCPA contains an express exception for “facilitating payments” made to low-level officials to expedite or secure the performance of “routine governmental action” (ministerial functions to which the company is already legally entitled). The exception does not apply to any discretionary decision. In practice, it is narrow, difficult to apply, and not recognized under many foreign anti-corruption laws including the UK Bribery Act 2010.

III. The Interplay Between the Two Phrases

“Anything of value” and “obtain or retain business” address different elements—the nature of the corrupt transfer and its intended purpose—but interact through the “corrupt intent” element. Establishing this nexus does not require a direct quid pro quo; intent can be inferred from timing, internal communications, the official’s area of authority, and consistency between value provided and outcome achieved.

Both phrases eliminate any de minimis threshold. There is no statutory minimum value below which a payment is immune from FCPA scrutiny, and there is no official action so minor that influencing it falls outside “obtain or retain business.”

IV. Compliance Implications

Gifts and entertainment policies must set value thresholds reflecting the company’s risk profile, require pre-approval for expenditures above defined limits, and mandate accurate and detailed record-keeping. Blanket categorical approvals for “business entertainment” without verification of government nexus are a compliance failure.

HR and talent acquisition functions must be integrated into the FCPA compliance architecture. Hiring requests driven or influenced by customer or government relationships in high-risk markets warrant enhanced scrutiny and documentation.

Third-party due diligence must be rigorous and proportionate to risk. Contract provisions requiring FCPA compliance, providing audit rights, and permitting termination for compliance violations must be backed by genuine monitoring.

Regulatory interactions—not just procurement—are within scope. Companies in heavily regulated sectors (pharmaceuticals, energy, financial services, telecommunications) must ensure regulatory affairs and government affairs teams operate under FCPA-aware protocols.

Conclusion

“Anything of value” encompasses cash, gifts, hospitality, employment, charitable contributions, and a wide range of intangible benefits. “Obtain or retain business” covers not just winning contracts but securing regulatory approvals, avoiding adverse action, and directing business to third parties—with no minimum threshold and no requirement that the connection to business be direct. Understanding where that perimeter lies—and building compliance programs designed around its full scope—is the clearest path to avoiding the reputational, financial, and personal consequences of an FCPA enforcement action.

This alert is provided for general informational and educational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this publication.