The current era of aggressive enforcement of the Foreign Corrupt Practices Act by the U.S. Department of Justice and Securities and Exchange Commission has produced corporate fines worth hundreds of millions of dollars, record numbers of investigations and an increased focus on the prosecution of individuals. The most intimidating prospect for companies facing FCPA investigations has been the requirement in some dispositions that companies appoint (and finance the activities of) an independent compliance monitor. However, recent FCPA dispositions have signaled a possible move away from the use of such monitors toward requirements that companies self-police and report directly to government agencies on FCPA-related issues. This trend has implications for all personnel overseeing their companies’ FCPA compliance programs.
In most of the FCPA corporate dispositions in the past few years, a key element has been an undertaking by the company to upgrade its FCPA compliance programs and related internal controls. Many of the requirements build on elements of an “effective compliance and ethics program,” as set out in the Federal Sentencing Guidelines Manual. See § 8B2.1. In a significant number of cases, the settlement has included an obligation that the company retain and pay for an independent monitor or consultant to ensure that those obligations are met (as examples, six of nine cases in 2006 and four of 10 cases in 2008 required a monitor).
