The Two Pillars—and Why They Still Matter
The Foreign Corrupt Practices Act (FCPA) prohibits bribery of foreign officials and requires books-and-records/internal accounting controls. It applies extraterritorially and covers issuers, their personnel, and agents (including distributors and JV partners).
What Prosecutors Look For in 2025
DOJ’s Evaluation of Corporate Compliance Programs (ECCP) outlines how prosecutors assess program design, implementation, and effectiveness—including testing, data, incentives, and how companies manage risks from new technologies.
Action items:
- Risk assessment by country/business line; align resources to risk.
- Internal accounting controls that tie to real payment flows and approvals.
- Training & incentives tied to role and risk; discipline for violations.
- Data & testing—prove your controls work.
Voluntary Self-Disclosure & M&A Safe Harbor
DOJ emphasizes voluntary self-disclosure (VSD) across components—and has a consistent policy framework nationwide.
For acquirers, the M&A Safe Harbor offers benefits when misconduct is discovered post-closing and promptly disclosed, remediated, and cooperated.
Whistleblower Momentum
The Corporate Whistleblower Awards Pilot Program allows awards to individuals who provide original, truthful information that leads to successful forfeiture in corporate crime matters; DOJ has public criteria and updates. Expect more tips—and faster internal investigations.
Third-Party Risk: Your Biggest Swing Factor
Most headline cases involve intermediaries. Build a third-party lifecycle: risk-based due diligence, contract clauses (anti-corruption, audit rights, termination), onboarding approvals, monitoring, and payment controls tied to services rendered. The DOJ/SEC FCPA Resource Guide (2nd ed.) remains a core reference.
Investigation Playbook (When a Red Flag Hits)
- Triage and preserve evidence (litigation hold).
- Scoping interviews; review payments, vendors, approvals.
- Board/committee reporting; consider VSD strategy early.
- Remediation: fix control gaps; discipline; enhance monitoring; track completion.
Practical FAQs
Are “facilitation payments” allowed?
They are high-risk and can still violate books-and-records/controls requirements—avoid and escalate for review.
Do we need to revisit integration in M&A?
Yes. Move quickly: perform a look-back, remediate, and assess self-disclosure under the Safe Harbor framework.
What changed recently?
In addition to ongoing ECCP refinements, DOJ has rolled out department-wide VSD policies and whistleblower award initiatives to surface corporate crime faster.
