In this article, initially published as a blog post in the FCPAméricas Blog, Matteson Ellis discusses issues that a company must consider when faced with FCPA voluntary disclosure. "Neither a company nor its directors have an affirmative obligation under the FCPA to disclose knowledge of a violation," Ellis said. "But enforcement officials stress that there are benefits to doing so, including more lenient treatment and credit when penalties are calculated."
Ellis explores questions including how egregious a violation was, the likelihood of the issue to provoke attention from FCPA enforcement authorities, and what reputational risks may be at play. "Disclosure has led to tangible benefits for several companies," he said, adding that some companies are more risk averse than others. "One thing is for certain: whether or not a company chooses to disclose, it should conduct a credible and independent internal review and remediate compliance weaknesses that led to the problem in the first place," Ellis said.