Background of this post: I’m a podcast junkie. I listen to them all the time (e.g. iPod, car, in the office, etc). Lately, a lot of them are from Wondery. One of their podcasts is called American Scandal and goes over scandals of various kinds (e.g. Iran Contra, Boston College athletics gambling, etc) that have occurred through the 19th and 20th centuries. One of the scandals they went over was Payola. In essence, it was the practice in the early to mid-20th centuries where radio DJs were paid money to promote or play one record company’s songs over another with the goal of making certain songs more or less popular than others. These payments were, of course, not disclosed to the public who generally thought that the songs being played were just part of the day’s normal broadcast.
Part of the American Scandal podcast went over how New York played a role in ending payola because of its statutes criminalizing commercial bribery. Those statutes are the topic of this post. More accurately, I’m going to go over what the current commercial bribery statutes in New York are. Statutes change all the time. The current statutes may or may not have been what was in effect back when Payola was occurring.
Under current New York law, there is both second-degree and first-degree commercial bribery under sections 180.00 and 180.03, respectively, of New York’s Penal Law. What’s the difference between the two degrees? Well, I’m glad you asked. The answer is the magnitude of the benefit and damage involved.
Under section 180.00, second-degree commercial bribery is defined as:
“A person is guilty of commercial bribing in the second degree when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs.”
As you can see, section 180.00 is extremely broad. It doesn’t apply just to some industries or situations. There is no threshold or minimum value required so, in theory, any benefit conferred could count as second-degree commercial bribery. Likely because of this, second-degree is a misdemeanor, specifically a Class A misdemeanor.
In contrast, first-degree commercial bribery is defined under section 180.03 as:
“A person is guilty of commercial bribing in the first degree when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter’s employer or principal, with intent to influence his conduct in relation to his employer’s or principal’s affairs, and when the value of the benefit conferred or offered or agreed to be conferred exceeds one thousand dollars and causes economic harm to the employer or principal in an amount exceeding two hundred fifty dollars.” (emphasis added)
For first-degree then, the difference is that the benefit conferred has to exceed $1,000 **AND** the economic harm caused has to exceed $250. Because section 180.03 is phrased in the conjunctive, both of these thresholds have to be met. If the benefit conferred is less than $1,000, the harm caused could be enormous (e.g. tens of thousands of dollars, millions of dollars, etc) and it would still be second-degree commercial bribery.
Because first-degree commercial bribery is more serious — at least when it comes to the dollar values involved — it’s a Class E felony.
On a related note, the offense of commercial bribery in the second or first-degree refers to the offering of the bribe. The receiving of that bribe is also a crime in New York under sections 180.05 and 180.08 of New York’s Penal Law. The wording for each parallels the commercial bribery statutes themselves. For instance, section 180.05 defines second-degree Commercial Bribe Receiving as the following, which parallels section 180.00 (i.e. second-degree Commercial Bribery) almost exactly.
“An employee, agent or fiduciary is guilty of commercial bribe receiving in the second degree when, without the consent of his employer or principal, he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his conduct in relation to his employer’s or principal’s affairs.”
Not surprisingly, second-degree Commercial Bribe Receiving is also a class A misdemeanor.
“An employee, agent or fiduciary is guilty of commercial bribe receiving in the first degree when, without the consent of his employer or principal, he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that such benefit will influence his conduct in relation to his employer’s or principal’s affairs, and when the value of the benefit solicited, accepted or agreed to be accepted exceeds one thousand dollars and causes economic harm to the employer or principal in an amount exceeding two hundred fifty dollars.” (emphasis addded)
The same $1,000 and $250 thresholds from before are also present. First-degree Commercial Bribe Receiving is also a Class E felony as is first-degree Commercial Bribery.
As always, I hope this post helped you. This is not meant to be a comprehensive or exhaustive explanation of New York law on commercial bribery or commercial bribe receiving. If you are going to rely on this post in anyway, I highly recommend you do your own research as it is entirely possible that the law involved will have changed in the time between when I wrote this post and when you read it. Hopefully the links I included above will give you a starting point for your research. If you do have a situation involving New York’s commercial bribery laws, I encourage you to find a lawyer in your area with whom to discuss your situation.
Because this is a post about New York law, I also have to mention this: As of the date of this post, I don’t have a brick-and-mortar office in New York state. As a result, under New York Judiciary Law section 470, I cannot represent clients in New York state. If you do need a lawyer in New York to deal with your case, though, please feel free to get in touch. I am happy to make a referral for you, if I can do so.
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