New DOJ Commentary Promises Leniency for Companies Who 'Do the Right Thing" and Self-Report Violations
U.S. businesses will best position themselves to avoid criminal prosecution under the FCPA by maintaining comprehensive compliance policies and procedures that deter FCPA violations and swiftly investigating and, when appropriate, promptly self-reporting any such violations to the government.
August 15, 2018 at 05:17 PM
9 minute read
The Foreign Corrupt Practices Act continues to be a major enforcement priority for the U.S. Department of Justice and the U.S. Securities and Exchange Commission. As a result, the FCPA remains a significant focus of internal compliance efforts for U.S. companies that do business internationally.
Decisions by corporate boards, senior executives and in-house counsel about how best to investigate suspected international corruption by employees, as well as whether to disclose that kind of illegal conduct to the federal government, are often complicated by the fact that the language of the FCPA can be challenging to apply to particular circumstances with reasonable certainty, even though the DOJ has provided FCPA guidance in recent years. Acknowledging that its previous guidance has been less than clear at times, the DOJ issued public commentary on July 25 that is intended to provide enhanced predictability regarding how the government will exercise its broad prosecutorial discretion as to FCPA violations, particularly when companies “do the right thing” and self-report those violations to the DOJ. The commentary was issued as remarks by Deputy Assistant Attorney General Matthew S. Miner in connection with a global anti-corruption conference. Miner oversees the DOJ's Fraud Section, which includes its FCPA unit.
The FCPA's Broad Reach The FCPA, codified at 15 U.S.C. §78dd-1, et seq., has two main components: the anti-bribery provisions, discussed in this article, and the accounting provisions, which require publicly traded companies to keep accurate books and records and maintain certain internal accounting controls. Generally speaking, the FCPA's anti-bribery provisions prohibit certain entities and persons from making any payment, or any offer of payment, to a foreign government official for the purpose of influencing that official to misuse his or her official position to assist in obtaining or retaining business or any other unfair advantage for a company.
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