Karen E. Woody
Voluntary Disclosure Fostering Overenforcement and Overcriminalization of the FCPA
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’s article challenges the notion that voluntary disclosure of potential Foreign Corrupt Practices Act (FCPA) violations to the government is always the best course of action for a company. In a world where whistleblowers can receive a bounty for information provided to the Securities and Exchange Commission (SEC), self-reporting is a critical, high-pressure decision that each company must undertake when faced with potential FCPA liability. This Article takes a broader look at the FCPA landscape, focusing on SEC enforcement, in parallel to the Department of Justice (DOJ) focus that Professor Reilly undertakes in his Article. Specifically, this Article buttresses Professor Reilly’s argument by pointing out that the SEC has become an increasingly prosecutorial agency that uses disgorgement as a punitive measure, and enjoys the ability to be both prosecutor and judge in a settlement-driven landscape. In practicality, this means the scales are tipped in the government’s favor, making the decision whether to voluntarily disclose even murkier. Read more.