What Is In It For Me: How Recent Developments in FCPA Enforcement Affect the Voluntary Disclosure Calculus

Abstract

With increasing enforcement of the US Foreign Corrupt Practice Act companies must give consideration to the 'pros' and 'cons' of voluntary disclosure. The benefits of voluntarily disclosing corrupt activity are difficult to discern through comparison with settlement involving non-disclosed activities. Despite the lack of a clear effect on penalty amounts, there are discernible advantages to voluntary disclosure, including preserving the opportunity for the government to formally decline prosecution or agreeing to a non-prosecution agreement ('NPA'). Disclosure also increases the likelihood that the government may forgo requiring an external monitor in favour of far less intrusive self-monitoring and reporting requirements. This article addresses some of the most important considerations with regard to voluntary disclosure of a Foreign Corrupt Practice Act (FCPA) violation to support each company making a decision based its own facts and circumstances and in consultation with qualified FCPA counsel.