To Disclose or Not To Disclose--A Recurring FCPA Question

In this article, the fourth in a continuing series, Homer Moyer discusses the competing consideration that directors may face when deciding whether or not to disclose a violation of the Foreign Corrupt Practices Act (FCPA) voluntarily. As there is no legal obligation to self-report, directors must determine what will be in the best interest of the company and its shareholders. One of the main arguments for disclosure, according to Moyer, is "… the opportunity to deal with a violation, remediate, discipline as appropriate, and then present the matter in a context that is as favorable as possible. If the government otherwise learns of the matter, bad facts, not extenuating circumstances or a company's strong response, are likely to be featured." On the other hand, Moyer provides several factors that may weigh against disclosure, the first of which is that a company does not have to. "The nightmare disclosure scenario is that, once engaged, enforcement agencies may find it difficult to bring an investigation to closure," he said. "Worse yet, the agencies become intrigued with other, unrelated issues, as they have in some so-called "industry sweeps," and make exploratory, open-ended requests for information, delaying the final disposition and sharply increasing the costs." According to Moyer, "For directors, the bottom line advice is, first (unhelpfully), that each situation is fact-specific and should be individually assessed. But the good news is that when board members and other decision-makers are faced with the Shakespearean question—to disclose or not to disclose—they can at least identify the many variables and make informed judgments consistent with the risk tolerances and best interests of their companies."

Click below to access each of the articles in this series.

Board Members, Meet the New FCPA

The Global Transformation in Laws Against Foreign Bribery

Board Oversight of FCPA Compliance

Costs of FCPA Investigations -- A Board Issue?

Becoming an FCPA-Savvy Director

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