Ten Strategies for Avoiding FCPA Violations When Making Charitable Donations
Charitable donations by companies and their employees present at least two FCPA-related risks. First, charitable donations may be – or may appear to be – intended to improperly influence foreign government officials associated with a charity. Second, even bona fide donations may violate the books and records provisions of the FCPA if inadequately accounted for. Accordingly, companies and employees contemplating charitable donations must contend with potential FCPA consequences. Unfortunately, in the case of charitable donations – as with many other recurring business questions with potential FCPA implications – there is little authoritative guidance. Business decision-making in this area is typically guided by experience and best practices. The purpose of this article is to distill best practices with respect to avoiding FCPA violations when making charitable donations. In particular, this article: discusses in greater detail the intersection of the FCPA and charitable giving; summarizes the modest volume of relevant precedent (including an ongoing investigation of a big name in the gaming industry); then details ten strategies for approaching charitable donations in a manner intended to mitigate FCPA risk. In the background of this discussion is a macro trend. It is becoming increasingly apparent that good corporate citizenship is good business. As communication channels proliferate, both in terms of technology and access, the number of global customers is increasing and the average customer is becoming better informed. Customer choices are being swayed by factors beyond product and service quality – factors including corporate reputation. Reputation, in turn, is powerfully affected by a corporation’s charitable undertakings in the areas where it operates. A well-orchestrated, well-positioned and judiciously publicized charitable campaign can boost the social profile of a company, which can impact revenue more quickly and directly than ever before. But a bungled charitable campaign – for example, one that trips up the FCPA – can conjure up the uncharitable old adage: “No good deed goes unpunished.” Companies should engage in smart charity, and doing so entails staying on the right side of the FCPA. This article provides a roadmap for doing so.