CLS Blue Sky Blog

Ralph Lauren, Transnational Bribery, and Voluntary Disclosure Under the Foreign Corrupt Practices Act: When is it Strategically Wise (or Not) to Self-Report FCPA Violations to the SEC?

The following post comes to us from Peter R. Reilly, Associate Professor of Law, Texas A&M School of Law and is based on his paper, “Ralph Lauren, Transnational Bribery, and Voluntary Disclosure Under the Foreign Corrupt Practices Act: When is it Strategically Wise (or Not) to Self-Report FCPA Violations to the SEC?” (5 Harvard Business Law Review __ (2014) (Forthcoming)).  The full paper is available here.

On April 22, 2013, the U.S. Securities and Exchange Commission (“SEC”) announced a non-prosecution agreement (“NPA”) with Ralph Lauren Corporation in connection with bribes paid to government officials in Argentina.  The SEC decided not to charge the corporation with violations of the Foreign Corrupt Practices Act (“FCPA”) due to the company’s response to the situation, including:  (1) the prompt reporting of the violations on its own initiative; (2) the completeness of the information provided; and (3) the “extensive, thorough, and real-time cooperation” put forth during the SEC investigation.  While the SEC and various legal commentators suggest the case stands for the proposition that “substantial and tangible” benefits will accrue to companies that self-report FCPA violations and cooperate fully with the SEC, this article arrives at a very different assessment of the matter.  Specifically, the article suggests that (1) it might not have been a good idea, from a business perspective, for Ralph Lauren Corporation to self-report the potential violation to the SEC; and (2) the non-prosecution agreement negotiated to resolve the matter—the SEC’s first-ever NPA awarded in an FCPA case—also might not have been in the best interest of the company.  In other words, this article suggests that, under current SEC policy, a company’s ability and willingness to self-report to and cooperate with the government is not always strategically wise in the context of FCPA enforcement.

The article explores, through the lens of the Ralph Lauren case, the factors that companies and their counsel must consider when making the difficult and critical calculation of whether or not to voluntarily disclose a potential FCPA violation to the SEC.  I investigate the policies and programs used by the SEC to entice voluntary reporting and cooperation, as well as the kinds of results and rewards that might be achieved therefrom.  I demonstrate that although the risks associated with voluntary disclosure tend to be concrete and predictable, the rewards have heretofore been largely uncertain—a calculus that militates against disclosure.  I conclude that in order to increase the likelihood that companies will self-report FCPA violations in the future, and thereby assist in eradicating the scourge of transnational bribery worldwide, the SEC must be far more transparent:  Its policies, pronouncements, rules, and regulations must provide more certain, specific, and calculable incentives to companies for volunteering to come forward.  Simply put, companies will not come forward in large numbers, or on significant FCPA matters, until they can determine with certainty and specificity that the rewards obtained will outweigh the risks involved.  The article concludes with reform measures that can and should be implemented within the SEC to bring about such transparency.  Implementing these changes would benefit everyone involved—the companies and their counsel, the regulatory agencies, and, perhaps most important of all, the people and institutions throughout the world currently suffering the ill effects of transnational bribery.

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