Conducting an FCPA risk assessment is good governance and can be a powerful advocacy tool should problems arise.
Compliance professionals, internal counsel and external counsel face a daunting and increasingly complex landscape when they hear the initial report of potential corruption stemming from their international operations. More recently, this has become the case irrespective both of the location of the potential misconduct and whether it appears on first view to reflect a regulatory or potential criminal issue.
The recent and very prominent media coverage of the Foreign Corrupt Practices Act (FCPA) and money laundering charges brought by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) against employees at Direct Access Partners, a New York broker-dealer, and a senior Venezuelan bank officer highlight an important shift in FCPA and anti-bribery enforcement.
One of the most difficult and consequential decisions a company faces when presented with a corruption allegation is the decision whether or not to self-report to the government. On the one hand, Foreign Corrupt Practices Act (FCPA) enforcement officials uniformly cite voluntary self-disclosure as one of the most critical elements of the government’s decision to award cooperation credit.
The appropriate place for compliance in the organizational structure of large and more sophisticated companies has been a matter subject to substantial debate within company management, and it is fair to conclude that the stakeholders in this debate—senior management, external boards, the office of general counsel and senior compliance officials—do not necessarily see eye to eye. General counsel often chafe at the prospect of independent compliance management that operates outside their direct reports.
The recent Department of Justice and Securities and Exchange Commission guidance1 on the Foreign Corrupt Practices Act does not break new ground, but it does offer internal and external counsel, as well as ethics and compliance professionals, a user-friendly guide to the agencies’ priorities.