Before discussing FCPA compliance, it’s important to define the FCPA (Federal Corrupt Practices Act).
The FCPA is a law (enacted in 1977) that prohibits bribing foreign officials to obtain/retain business. The Act’s prohibitions can apply anywhere globally to publicly traded companies, their directors, officers, stockholders, employees, and agents (consultants, joint-venture partners, distributors, etc.).
The FCPA also requires companies to have adequate internal controls, books, and records to detect and prevent unlawful transactions. The law was passed to address growing concerns about corrupt practices globally. The FCPA has provisions for civil and criminal enforcement.
The DOJ (Department of Justice) and SEC (Securities Exchange Commission) enforce the FCPA jointly. The SEC has a special unit (Enforcement Division) solely responsible for enhancing FCPA enforcement.
Since enactment, the FCPA has earned taxpayers billions in penalties and disgorgement orders, among other sanctions against companies found engaging in corrupt practices with foreign entities. Individuals and companies guilty of violating FCPA guidelines may be forced to disgorge their ill-acquired gains as well as pay prejudgment interest and hefty civil penalties. Companies also face other actions, such as mandatory oversight by independent consultants.
The agencies responsible for enforcing the FCPA (The SEC and DOJ) take FCPA violations seriously. The agencies are motivated by the impact of bribery and corruption on U.S. interests domestically and abroad.
The risk of federal prosecutions is higher now than ever before. Companies that conduct business with foreign nationals and entities must implement FCPA compliance programs that can detect, prevent, and allow appropriate responses to transactions that are contrary to FCPA guidelines.
Besides detecting and preventing FCPA violations, companies that adopt FCPA compliance programs demonstrate intent to abide by the law creating a positive reputation from the “eyes” of federal authorities. Companies that implement effective compliance programs also discourage other entities from engaging in corrupt conduct.
FCPA violation penalties
Civil enforcement actions attract fines not exceeding $10,000 per violation. The penalties are imposed against issuers. They can be enhanced by the SEC to match the financial gain in question or $500,000 (whichever is greater).
FCPA violations have seen companies like Goldman Sachs face $1 billion in fines.
The DOJ and SEC can pursue injunctive relief to stop future FCPA violations. Criminal FCPA cases can attract fines not exceeding $2 million for companies and $100,000 for individuals and a five-year jail term or more.
Importance of FCPA Compliance Programs
Companies that conduct business with foreigners and foreign entities must adopt comprehensive FCPA programs for many reasons, the most notable being:
To promote ethical conduct
Companies that implement comprehensive policies against corruption send strong messages to foreign officials, other companies, and third parties that they are serious about the federal government’s position against corruption.
As a result, foreign officials aren’t likely to demand bribes from such companies. Compliance also boosts the morale of employees, making them proud to work for the company. Employees are also more committed to ethical conduct and transparency when working in compliant companies.
To establish strong internal controls
Companies that allow corruption as part of business operations have a high likelihood of encountering problems in America and abroad. Once the willingness to pay bribes is established, there’s no limit to the amount that is requested by foreign officials over time. For business to continue, the need to pay larger bribes can’t be avoided.
When left unchecked, corruption can create unmatched liability exposure. FCPA compliance creates effective internal controls avoiding most, if not all, the problems linked to corruption (from unpredictability in business transactions and dealing with foreigners to corporate success). Compliance makes it easier to curb internal business costs linked to corruption.
To reduce the societal impact of corruption
Corruption has social, economic, political, and many other costs. Unethical business conduct comes with unnecessary costs to society. By formulating and enforcing FCPA compliance programs in a company, society is saved from unnecessary costs. For instance, bribery and corruption allow unfair competition.
To incentivize disclosure & reporting statutory violations
FCPA penalties encourage disclosure and reporting statutory violations. The fines, disgorgement, imprisonment, debarment, and restitution make it easy for violations to be reported. Considering whistleblowers get 10-30% of what is recovered in enforcement litigations, any parties with knowledge of FCPA violations have every reason to report such violations. The penalties also make disclosure worthwhile.
To foster growth (domestically and globally)
Anticorruption laws help businesses expand and become more stable domestically and globally. Competitiveness is an important factor in expansion. With fair completion, fostered by FCPA compliance, companies have a fair chance of growing locally and abroad. What’s more, SEC and DOJ investigations can destabilize companies resulting in unmatched reputation and financial harm.
FCPA Training & Certification
FCPA training is readily available. Some commercial entities provide FCPA certification programs offering training on statute requirements.
While FCPA training is useful, certification is not a regulatory requirement, nor does it offer substantial commercial value.
Many companies prefer hiring FCPA compliance counsel to offer custom training as per an organization’s unique needs as opposed to subjecting every employee through generic training.
Some companies prefer contractual FCPA certification whereby parties to a contract abstain from FCPA violations. Obtaining this kind of certification is critical for companies facing exposure because of the actions of third parties in unique cases.
FCPA certification isn’t required except in special circumstances i.e., as a condition to receive government loans, guarantees, among other benefits. However, certification isn’t a legal requirement for any individual or company. Nevertheless, obtaining certification is prudent in third party dealings that are likely to trigger FCPA prohibitions.
Getting FCPA training & certification
Commercial FCPA training & certification programs are issued by various companies. Law firms with expertise in FCPA compliance can also offer tailored training that meets the specific needs of clients.
How is FCPA Compliance Documented?
Since compliance should be approached as an ongoing process, the most important step is developing policies as well as procedures that protect a company against risks of FCPA violation and the resulting SEC/DOJ enforcement actions.
Companies should also implement, monitor, and audit ongoing compliance efforts. There should be records of a company’s monitoring efforts, employee participation in FCPA training programs as well as audits and decisions with FCPA implications.
Dealing with FCPA compliance problems
FCPA compliance problems can be unearthed during auditing or monitoring efforts. The next cause of action should be informed by the specific problem in question. Most importantly, compliance problems must be dealt with without triggering unwanted scrutiny.
According to the DOJ, FCPA violations should be self-reported. Since this may not be in the best interests of the company (because self-reporting doesn’t guarantee complete immunity), it’s better to procure the services of an FCPA compliance law firm like Corporate Investigation Consulting. We can help you determine when, if, and how to self-report FCPA compliance problems.
Preparing for FCPA Investigation
Many companies that conduct business with foreigners or foreign entities are bound to face FCPA investigations of any nature at some point. The investigations can arise due to whistleblower complaints, self-reporting, or any other factor.
To avoid penalties in criminal/civil enforcement proceedings, companies should purpose to defend themselves during FCPA investigations. First and foremost, compliance programs must have protocols for dealing with DOJ and SEC inquires. It’s also important for companies to maintain documentation that can support compliance in the event of an investigation.
Contact Corporate Investigation Consulting now to get the best FCPA defense strategies. We have unmatched experience in FCPA matters. Our consultants are former DOJ employees as well as former senior officials who have worked with all federal agencies. We can ensure your company avoids unnecessary costs, federal liability, and lost business opportunities.
Corporate Investigation Consulting can also help your company establish robust FCPA compliance policies that prevent FCPA violations and also encourage disclosure of suspected violations. Local and foreign events can lead to FCPA legal obligations. We can help you ensure all relevant employees get adequate FCPA training.
Corporate Investigation Consulting offers FCPA compliance & defense representation for individuals and companies throughout the U.S. and beyond. You can also talk to us when you need information on what it takes for a company to be FCPA-compliant. We offer free initial consultations. Schedule a consultation now by calling 866-352-9324 or reaching us online.