The FCPA Enforcement Process: Negotiating the Penalty

I recently explored the issue of ‘extraordinary cooperation’ in the context of a Foreign Corrupt Practices Act (FCPA) enforcement proceeding and some of the concrete steps that a company could take to reduce its overall penalty assessed by the Department of Justice (DOJ). However there is an additional step which a company should engage in before it receives its final penalty amount. This step is the negotiation with the DOJ over the amount of the penalty. Never having gone through such an exercise, I have often wondered what factors a company might put forward for DOJ consideration in this process. So I put that question to three persons with whom I shared a panel at the Dow Jones Global Compliance Symposium: Rich Plansky, Managing Director, Kroll; Eric Situarchuk, Partner, Morgan, Lewis and Bokius and Gary Giampetruzzi, Assistant General Counsel, Pfizer.


Plansky emphasized that it all begins with credibility. This credibility must begin in the initial self-disclosure, if such is made and it must continue throughout the investigation process. A company must engage in a credible investigation through the use of skilled and independent investigative counsel and it must use investigation techniques that the DOJ will recognize as sufficient such as in areas such as computer imaging and document retention. He said that a company must turn over all its findings, both good and bad to the government.

Collateral Consequences and Additional Costs

Sitarchuk said that he would emphasize two points in negotiation with the DOJ. The first is the collateral consequences if a proposed penalty is viewed as too high ...

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