Chapter 5: FCPA enforcement
The previous two chapters provided a comprehensive analysis of the FCPA's anti-bribery and books and records and internal controls provisions. Yet just because these provisions may be violated does not mean that an FCPA enforcement action will result. To state the obvious, the enforcement agencies must first learn of the improper conduct. This chapter begins by highlighting the typical origins of FCPA enforcement actions including the prominent role voluntary disclosures play in serving as the basis for most corporate FCPA enforcement actions. Next, this chapter introduces you to the 'three buckets' of FCPA financial exposure. The first bucket is pre-enforcement action professional fees and expenses and you will learn the importance of the 'where else' question. The second bucket is fine, penalty and disgorgement amounts in an actual FCPA enforcement action and you will learn how such amounts are calculated as well as certain controversial aspects regarding these amounts. The third bucket is post-enforcement action professional fees and expenses and you will learn that a company's financial exposure rarely ends on enforcement action day. Of these 'three buckets,' while settlement amounts in an actual FCPA enforcement action tend to get the most attention, pre-enforcement action professional fees and expenses are often the most expensive aspect of FCPA scrutiny and enforcement. This chapter then analyzes and compares corporate FCPA enforcement and individual FCPA enforcement.
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