Jeffrey R. Boles
The Dilemma of FCPA Self-Reporting
Response to Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act
Professor Peter Reilly examines the difficult strategic decision a company faces of whether to disclose voluntarily to the government a potential violation of the Foreign Corrupt Practices Act (FCPA), amidst the backdrop of the government’s heightened focus on FCPA enforcement. His excellent article demonstrates how the government enjoys wide flexibility and discretion in carrying out its enforcement activities while providing insufficient direction to companies regarding how to stay within the bounds of the complex statute. The article justifiably criticizes from a business perspective the widely held belief that self-reporting to the government a potential FCPA violation is always in a company’s best interests, and it makes a significant contribution to the literature by exploring the interconnected relationships among self-disclosure, accountability, and deterrence under the FCPA. The following responsive essay discusses new developments that change the contours of the company’s decision-making calculus of whether to self-report. It illuminates how a recent policy change adopted by the U.S. Securities and Exchange Commission (SEC) and a policy proposal under consideration within the U.S. Department of Justice (DOJ) may alter the self-report decision-making process in the private sector. It also provides additional insight into how other dynamic factors, such as the SEC whistleblower program, are growing in influence and may sway a company’s willingness to self-disclose a violation. Read more.