The Foreign Corrupt Practices Act—the first law to outlaw bribing foreign officials—has two main prohibitions. The anti-bribery provisions prohibit the offering or payment of anything of value to foreign officials to influence their acts or decisions for the purposes of obtaining or retaining business. 15 U.S.C. §§78dd-1, 78dd-2, 78dd-3. The accounting provisions require that “issuers” (companies listed on a U.S. exchange or required to file reports with the SEC) keep records which “in reasonable detail” accurately and fairly reflect transactions and also maintain a system of internal accounting controls sufficient to provide “reasonable assurances” that transactions are authorized and recorded properly. 15 U.S.C. §78m(b)(2).
With respect to FCPA enforcement, the Trump Administration has followed in its predecessor’s footsteps by mandating voluntary self-disclosure of violations to obtain leniency in prosecution and sentencing. Beginning in April 2016, the Department of Justice started a “Pilot Program” to incentivize companies to voluntarily self-disclose FCPA violations and cooperate with the government. See DOJ, The Fraud Section’s Foreign Corrupt Practice Act Enforcement Plan and Guidance (April 5, 2016). In November 2017, Deputy Attorney General Rod Rosenstein announced a new FCPA Corporate Enforcement Policy that adopts the Pilot Program’s emphasis on voluntary self-disclosure, cooperation and remediation. Specifically, when a company has voluntarily self-disclosed, cooperated, and remediated, it will receive a declination of prosecution absent certain aggravating factors, including involvement of high-level executives in the misconduct, a significant profit to the company from the misconduct, or the pervasiveness of the misconduct in the company. If criminal proceedings are warranted, the government will recommend a 50 percent reduction off the low end of the Sentencing Guidelines’ fine range (except in the case of a recidivist company) and will not require the company to obtain a monitor, as long as the company has implemented an effective compliance program. In the absence of voluntary self-disclosure, and even assuming that the company has cooperated and appropriately remediated, the DOJ will only recommend a 25 percent reduction from the low end of the Guidelines’ fine range. See DOJ, FCPA Corporate Enforcement Policy.
