FCPA Frequently Asked Questions
CMU is a non-profit educational institution. Isn't the FCPA about for-profit companies?
No, the FCPA applies to all “domestic concerns” and their employees. A “domestic concern” under the statute can include U.S.-based non-profits, NGOs, and educational institutions.
The FCPA is about bribery. As long as I’m not giving anyone envelopes of cash, aren’t I ok?
No, although cash bribery is what led to the enactment of the FCPA, its provision are actually much broader and include things that at first blush may seem innocent, including meals and entertainment.
The FCPA prohibits payments to foreign government officials. I only interact with foreign professors and university administrators. What do I have to worry about?
The FCPA applies to payments and other things of value provided to what the statue refers to as “foreign officials.” For purposes of the FCPA, the term “foreign official” includes not only government ministers and employees but also employees of government-owned or government-controlled entities, such as state-run universities. A professor or other employee of a state-run university could be considered a “foreign official” for purposes of the FCPA.
The FCPA doesn’t prevent me from exchanging gifts with my foreign colleagues, does it? That would be rude.
The FCPA applies to any and all “things of value,” including gifts. There are some exceptions to the general prohibition, however. As a result, you should check with the Office of General Counsel before giving any gifts to foreign colleagues at state-run universities overseas.
I only give gifts, or pay for meals, that are de minimis in value. Isn’t there a dollar threshold for the FCPA?
Unfortunately, the FCPA does not contain a de minimis exception. As a result, you should consult with the Office of General Counsel prior to giving any gifts, or providing any meals or other entertainment, even if of nominal value. It may be that small promotional items, such as Carnegie Mellon memorabilia, can be given; however, you should check first.
The University's FCPA Guidance refers to "family members" of foreign officials. Does the FCPA cover family members? How close must a relative be to be considered a family member for purposes of the FCPA?
The FCPA itself does not cover “family members” of foreign officials. However, there are certain family relations that are so close as to give rise to a presumption that a foreign official derives benefits indirectly when money or other things of value are given to a family member directly. For example, assume that someone on the staff of the Minister of Education in a foreign country suggested that the Minister would look favorably on the University if it hired the Minister’s son as a professor. Technically, the benefit in this example – the job as a professor – is going to the son of the foreign official. On the other hand, giving the professorship to the Minister’s son can be interpreted as an attempt to curry favor with the Minister himself, which is prohibited by the FCPA.