In the last few years, lawyers, accountants and other professionals have been beating the drum of aggressive enforcement of the FCPA (and the UK Bribery Act). There is no question that enforcement of anti-corruption laws around the globe has increased. The risk to companies and individuals has increased. But companies and individuals need to be realistic as to the real risks.

As everyone knows, the Justice Department “prosecutes” most of its cases through the voluntary disclosure process. Companies come in, confess their sins, agree to enhanced compliance (and possibly a monitor), and either plead guilty to a crime and pay a fine, and/or enter into a deferred or non-prosecution agreement. That is the standard model.

For those companies that have implemented compliance programs, or are in the process of doing so, a criminal case based on historical evidence is unlikely to be launched unless prosecutors obtain credible information from other parties, public sources or a whistleblower of potential violations. In the absence of such information, the risk of criminal prosecution for good faith attempts to comply based pursuant to a compliance program is unlikely to lead to a criminal prosecution so long as a company’s actions are documented and affirmative steps are taken to comply with the law and a compliance program...

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