What Steps Can Lead to a Reduction in a FCPA Fine?


Earlier this month, in the FCPA Blog, Bruce Hinchey discussed his upcoming publication, "Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements," which analyzes differences between bribes paid and penalties levied against companies that do and do not self-disclose under the Foreign Corrupt Practices Act (FCPA). Using a regression analysis, Hinchey concluded that those companies which did voluntarily self-disclose paid higher fines than companies which did not self disclosure their FCPA violations to the DOJ. He concluded his post by noting that this evidence was contrary to the conventional wisdom that a company receives a benefit from self-disclosure and such evidence would ”raise questions about whether current FCPA enforcement is fundamentally fair”.

We were intrigued by this paper, as were many other commentators. However, as Hinchey’s analysis was limited to simply reviewing the issue of self-disclosure or not and the fine-to-bribe ratio companies pay for FCPA violations, we wondered if there were other factors which the Department of Justice (DOJ) might take into account when assessing a fine and if so, what some of these factors might be?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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