When and How Should Companies Self-Report FCPA Violations? (Part One of Two)

A company that discovers an FCPA violation by one of its employees faces a fundamental question with potentially profound business consequences: Should the company self-report the violation to the government?  Generally, the rationale for self-reporting is that companies may receive “credit” for doing so, for example, reduced or eliminated sanctions.  However, in the uncertain world of self-reporting, there are no guarantees.  Whether a company receives credit at all, how that credit is measured and applied, whether that credit mitigates other risks arising out of the same violations – these and related questions are fact-specific, guided but not governed by precedent and practice.  In short, self-reporting is an inherently ambiguous process.  This is squarely at odds with the data-driven decision-making that corporate boards and management teams engage in, or at least aspire to.  Accordingly, corporate decision-makers and the in-house and outside lawyers who advise them have been groping for a reliable framework for thinking through self-reporting questions.  To date, no generally accepted framework has been forthcoming.  The purpose of this two-part article series is to fill that gap.  To do so, this article: provides a detailed definition of self-reporting; discusses relevant precedent, including plea agreements, settlements, speeches and fines; identifies six questions that a company must answer before deciding whether or not to self-report; highlights three of the chief arguments in favor of self-reporting; then discusses whether and how the value of self-reporting can be quantified.  The second article in this series will address: the risks inherent in self-reporting; the effect that new FCPA insurance products may have 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.  The analysis in this article is a combination of proprietary domain expertise and extensive interviews with leading practitioners, who are quoted in depth.  In addition, this article contains numerous links to relevant documents and authority.  While this article cannot conclusively answer the question with which it opened – Should a company self-report an FCPA violation to the government? – it can help practitioners avoid missing a critical question or issue that should be part of a thorough analysis.

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