Companies and individuals frequently face the question of whether to self-report FCPA violations. Generally, parties self-report where they expect that the “credit” received for doing so will outweigh the various detriments (e.g., revealing a legal violation that otherwise might have gone unnoticed, losing control of an investigation, etc.) Accordingly, implicit in any self-reporting determination is an estimate of the value of credit to be obtained. Parties making such an estimate are, at least in theory, assigning a value to anticipated credit, then discounting that credit by the likelihood of obtaining it. In practice, however, quantifying the value of credit to be obtained for self-reporting FCPA violations is a challenging exercise. Various categories of credit – declinations and dropping of charges, for example – are hard to quantify; and assigning probabilities to government action is an infamously imprecise errand. So, what are companies and individuals considering self-reporting to do? The answer is to think through the self-reporting calculus in a structured, methodical way – to approach such decision-making with a workable framework. To assist our subscribers in doing so, we have provided the building blocks of such a framework in this two-part article series. In particular, part one of this series: provided a detailed definition of self-reporting; discussed relevant precedent, including plea agreements, settlements, speeches and fines; identified six questions that a company must answer before deciding whether or not to self-report; highlighted three of the chief arguments in favor of self-reporting; and analyzed whether and how the value of self-reporting can be quantified. See “When and How Should Companies Self-Report FCPA Violations (Part One of Two)
” (Jun. 6, 2012). This part two addresses: the risks inherent in self-reporting; the likely effect of new FCPA insurance products on self-reporting; the mechanics of self-reporting (e.g., timing, to whom, who decides, etc.); and the impact on self-reporting determinations of the whistleblower provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.