Last month, Medtronic Inc. announced that the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) would be closing their Foreign Corrupt Practices Act (FCPA) investigations of the medical device-maker without pursuing any charges or an enforcement action. Like most declinations, there is little information regarding what factors the government considered in deciding it would not pursue any action. Looking across a number of recent cases and pronouncements, however, companies can identify certain factors which undoubtedly will play a role in determining whether a company will weather an FCPA or anti-bribery investigation without facing any further government action.
Once a company has identified a potential corruption issue, investigated it, and determined that it must make a voluntary disclosure to the government, the next question that immediately arises is whether the company can do anything more to avoid criminal charges or an enforcement action. Obviously, the best outcome for a company is that the government determines there has been no violation of the law. Short of that, there are certain steps a company can take to increase the likelihood that the government pursues the least punitive route possible; ideally, a declination, or at the very least a Non-Prosecution Agreement (NPA) or a Deferred Prosecution Agreement (DPA).