Who can be prosecuted under the FCPA?+
The FCPA applies to: U.S. companies and their employees and agents worldwide; U.S. citizens and permanent residents regardless of location; and foreign companies and individuals who take any act in furtherance of a bribe within the U.S. The accounting provisions apply to issuers (companies with U.S. securities registrations) and their subsidiaries.
Our audit committee's internal investigation found evidence of payments to government officials through a Latin American subsidiary. Do we have to disclose this to the DOJ and SEC?+
You don't have to, but the framework governing that decision is among the most consequential in corporate criminal law. The DOJ's FCPA Corporate Enforcement Policy creates strong incentives for voluntary disclosure: companies that voluntarily self-disclose, fully cooperate, and timely remediate receive a presumption of declination, meaning no criminal charges. Companies that cooperate but do not self-disclose receive a reduced penalty, without the declination presumption. The analysis turns on several factors: (1) How serious is the conduct, isolated incident or systematic pattern? (2) How much evidence exists and could the DOJ find it independently through a whistleblower, a third-country investigation, or another company's cooperation? (3) Has the company already begun remediation? (4) Are there parallel proceedings (SEC disclosure obligations, foreign regulatory requirements, or local anti-corruption law) that run on their own timelines? Voluntary disclosure is irreversible. Once made, the company is committed to full cooperation and cannot control how the DOJ characterizes the conduct. This decision must be made with full analysis by experienced FCPA counsel, not under pressure of a disclosure deadline.
Are facilitation payments legal under the FCPA?+
The FCPA contains a narrow exception for small payments to secure routine, non-discretionary government action, but relying on it is hazardous: the exception is construed narrowly, the payments are almost always illegal under the local law of the country where they are made, and other regimes such as the U.K. Bribery Act prohibit them outright. Most multinational compliance programs ban facilitation payments entirely, and enforcement authorities treat a pattern of them as evidence of a broader corruption problem.
How long do FCPA investigations take, and how do they usually end?+
Corporate FCPA investigations commonly run two to four years, longer when multiple countries are involved. They resolve across a wide spectrum: declination (increasingly available for companies that self-disclose, cooperate, and remediate), non-prosecution or deferred prosecution agreements, guilty pleas, and parallel SEC resolutions with disgorgement and penalties. Individual outcomes are separate from the company's, and the government has prioritized individual prosecutions, which is why executives need their own counsel early.
