UPDATED: February 11, 2020
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A kickback is effectively a quid-pro-quo bribe — a collusive agreement —designed to help or influence an individual, company, or government entity. When a contractor promises to “kick back” some of the proceeds from a contract to the hiring decision-makers, a kickback has been offered. If the official suggests such an arrangement, a kickback has been solicited. Kickbacks can be in the form of money, credits, gifts, gratuity, offering of services, or anything of value. Kickbacks can take place in a variety of settings, such as politics, government, games, and the health care industry. Kickbacks are often referred to colloquially as “under the table” payments.
Federal rules against kickbacks deal primarily with federal issues such as public works that receive financing from the US government. Health care-related kickbacks (drug companies kicking back to doctors, for example) are also gaining the attention of authorities.
Issuing and accepting kickbacks are both serious crimes. The Anti-Kickback Act of 1986 prohibits government contractors and subcontractors from issuing or accepting kickbacks, as well as forcing an employee to kick back part of his or her compensation. Violators may face a $5000 fine and/or five years in prison.
The US Code’s Title 18, section 874, focuses on public works employees. The law essentially states that whoever induces any person employed in the repair of any public building, for example, to give up any part of the compensation, the person doing the inducing (soliciting the kickback) shall be imprisoned for up to five years, fined, or both. Beyond building repair, the law applies to anyone employed in any work financed in whole or in part by loans or grants from the United States.
Title 12, section 2607of the US Code explicitly prohibits kickbacks and unearned fees “incident to or a part of a real estate settlement service involving a federally related mortgage loan.” The law prohibits fees and kickbacks for referrals and the splitting of charges made or received for the rendering of a real estate settlement service (other than fees earned for services actually performed).
Prosecution of kickback crimes can come from many agencies, depending on the specific territory in which the crime takes place. The General Services Administration, the Department of Defense’s Federal Procurement Fraud Unit, the Office of Inspector General, and Antitrust Division of the US Department of Justice are just a few federal examples. The Attorney General or the insurance commissioner of any state may also bring an action for violations of anti-kickback laws.
Facing a felony charge is a very serious offense. Criminal charges can be brought either at the state or federal level. If you are under investigation for kickbacks, served with a Grand Jury subpoena or a search warrant, or are facing a team of government lawyers, contact a skilled criminal defense attorney as soon as possible to protect your rights during this difficult time. It is never a good idea to go it alone.