Self-Disclosure Analysis of FCPA Violations and the New Administration
On April 5, 2016, the Department of Justice had set forth a Foreign Corrupt Practices Act (“FCPA”) Enforcement Plan and Guidance on enforcement, announcing an FCPA enforcement pilot program to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self-disclose FCPA-related misconduct, fully cooperate with the DOJ, and, where appropriate, remediate flaws in their controls and compliance programs.
The pilot program became effective immediately and was given a one-year limit. As long as a company self-disclosed before April 5, 2017, the Guidance would continue to be applied even after the expiration date. Because of this upcoming expiration, companies have been wondering whether they should accelerate their self-disclosure analysis.
On March 10, 2017, Kenneth Blanco, Acting Assistant Attorney General for the DOJ’s Criminal Division, announced at the annual ABA White Collar Conference in Miami, Florida, that the FCPA Pilot Program would stay in place beyond its current April 5, 2017 expiration date so the DOJ could “begin the process of evaluating the utility and the efficacy, whether to extend it, and what revisions if any we should make to it.” Blanco said “[t]he program will continue, however, in full force until we reach a final decision on those issues.”
Despite this uncertainty, companies considering accelerating their analysis should take a closer look. The incentives contained in the Pilot Program, such as leniency in fines, were routinely found in settlements even before the program was piloted. While it is not assured that after the DOJ’s “self-examination” penalties would not become harsher, it is equally, if not more, likely that the next program could offer companies even more significant incentives to engage proactively with the government and leniency for self-disclosures.
Consequently, an accelerated disclosure should not undermine a company’s own complete internal evaluation of possible FCPA issues. Until the DOJ clarifies its position as to cooperation with or without self-disclosure, companies should consider cautiously whether anything significant needs to be disclosed while understanding the consequences arising from such disclosure.