The June 9 policy memo from Deputy Attorney General Todd Blanche reframes how prosecutors assess Foreign Corrupt Practices Act cases. For compliance officers, the immediate question isn't whether FCPA enforcement has changed, but whether your organization should self-disclose upon discovering a potential violation.
This template provides a structured decision framework to guide discussions with your legal team and senior management when you uncover conduct that might violate the FCPA.
Purpose of the Template
You've discovered a questionable payment to a foreign official, or your internal audit flagged a third-party intermediary with gaps in their due diligence file. Perhaps an employee raised concerns about how your subsidiary won a government contract overseas.
Now you must decide: Should we self-disclose to the Department of Justice?
This decision tree helps evaluate the relevant factors under current DOJ policy, document your reasoning, and reach a defensible conclusion with your legal counsel. It's intended for the initial assessment phase, before engaging outside counsel or contacting the DOJ.
Prerequisites
Before using this template, ensure:
Preliminary fact pattern documented. You don't need a complete investigation, but enough detail to answer the questions in the tree. Who was involved? What conduct occurred? How much money changed hands? Which foreign officials or government entities were involved?
Legal counsel engaged. This template structures the conversation; it doesn't replace legal advice. Your general counsel or outside FCPA counsel should participate in working through this decision tree.
Preservation hold in place. Ensure all relevant documents and communications are preserved. If you ultimately self-disclose, the DOJ will expect a complete record.
Management awareness. The CEO and relevant board committee (typically Audit) should be informed that you're assessing a potential FCPA issue, even if a disclosure decision hasn't been reached.
The Decision Tree Template
Copy this framework into a working document. Answer each question with your legal team, and document your reasoning in the notes column.
FCPA Self-Disclosure Assessment Framework
Matter ID: [Internal reference number]
Date of Assessment: [Date]
Participants: [Names and titles of legal, compliance, and management representatives]
THRESHOLD ASSESSMENT
| Question | Answer | Notes |
|---|---|---|
| Does the conduct potentially violate the FCPA's anti-bribery provisions (payments to foreign officials to obtain or retain business)? | [ ] Yes [ ] No [ ] Unclear | |
| Does the conduct potentially violate the FCPA's books and records or internal controls provisions? | [ ] Yes [ ] No [ ] Unclear | |
| Could the conduct be characterized as "routine business practices at lower dollar amounts" rather than "serious misconduct"? | [ ] Yes [ ] No [ ] Unclear | |
| Is there evidence of large-dollar bribes or extensive concealment efforts? | [ ] Yes [ ] No [ ] Unclear |
If you answered "No" to both anti-bribery and books-and-records questions, stop here. Document your reasoning and proceed with remediation only.
DOJ PRIORITY FACTORS (from June 9 memo)
These four factors indicate whether the DOJ is likely to prioritize prosecution. Answer each:
| Priority Factor | Present? | Evidence |
|---|---|---|
| Does the misconduct involve drug cartels or other transnational criminal organizations? | [ ] Yes [ ] No | |
| Does the misconduct prevent specific, identifiable U.S. organizations from fair access to compete for business overseas? | [ ] Yes [ ] No | |
| Does the misconduct threaten U.S. national security interests (defense, critical infrastructure, intelligence industries)? | [ ] Yes [ ] No | |
| Does the misconduct involve serious misconduct (large-dollar bribes or extensive concealment)? | [ ] Yes [ ] No |
If you answered "Yes" to any priority factor, the risk of DOJ enforcement increases significantly.
SELF-DISCLOSURE RISK-BENEFIT ANALYSIS
| Factor | Favors Disclosure | Favors Non-Disclosure | Weight | Notes |
|---|---|---|---|---|
| Likelihood of external detection | Whistleblower likely | No external visibility | [ ] High [ ] Medium [ ] Low | Consider: Are whistleblowers involved? Will the conduct surface in audits, regulatory filings, or third-party due diligence? |
| Cooperation credit value | Declination almost certain under current policy | Declination likely even without disclosure | [ ] High [ ] Medium [ ] Low | Under current DOJ policy, voluntary disclosure with full cooperation typically results in a declination. |
| Disgorgement exposure | Must disgorge ill-gotten proceeds | May retain proceeds if never detected | [ ] High [ ] Medium [ ] Low | Estimate the dollar value of any business obtained through the misconduct. |
| Remediation timeline | Must remediate before declination | Can remediate on own timeline | [ ] High [ ] Medium [ ] Low | How quickly can you fix the underlying control failures? |
| Statute of limitations | Five years minimum (often extended) | Five years minimum (often extended) | [ ] High [ ] Medium [ ] Low | When did the conduct occur? Could future administrations reverse enforcement priorities within the limitations period? |
| Reputational considerations | Proactive disclosure demonstrates commitment | Non-disclosure avoids public scrutiny unless detected | [ ] High [ ] Medium [ ] Low | Consider your industry, investor base, and stakeholder expectations. |
PRELIMINARY RECOMMENDATION
Based on this assessment, our preliminary view is:
[ ] Recommend voluntary self-disclosure because: [Document specific factors that favor disclosure]
[ ] Recommend against voluntary self-disclosure because: [Document specific factors that favor non-disclosure]
[ ] Require additional investigation before deciding because: [Document what information is needed]
Next steps:
- [e.g., Retain outside FCPA counsel for independent assessment]
- [e.g., Brief Audit Committee on preliminary findings and recommendation]
- [e.g., Complete targeted investigation of [specific issue] within [timeframe]]
- [e.g., Prepare disgorgement calculation if disclosure proceeds]
Final decision authority: [Identify who makes the final call, typically General Counsel with Board Audit Committee approval]
Customizing the Template
Adjust priority factor weighting for your industry. If you operate in defense, critical infrastructure, or intelligence sectors, the third priority factor (national security threat) carries more weight. If you compete directly with other U.S. companies for foreign government contracts, the second factor (preventing fair competition) becomes more significant.
Add jurisdiction-specific considerations. If your potential violation also implicates the UK Bribery Act, Brazilian Clean Companies Act, or other non-U.S. anti-corruption regimes, add rows to assess those enforcement risks separately. Voluntary disclosure to the DOJ doesn't necessarily resolve your exposure in other jurisdictions.
Include quantitative thresholds. Define what "large-dollar bribes" means for your organization. The DOJ memo doesn't specify a number, but your risk appetite and industry context will inform that threshold. Document it.
Tailor the "next steps" section. Your organization's governance structure determines who participates in the final decision. Some companies require Board approval for any voluntary disclosure; others delegate to the General Counsel with Board notification. Make that clear in the template.
Validation Steps
After completing this assessment, validate your work:
Legal review. Your outside FCPA counsel should review the completed framework and either concur with your recommendation or explain why they disagree. Document their position.
Factual verification. Before presenting this to senior management or the Board, verify that every factual assertion in your "Notes" and "Evidence" columns can be supported with documents or witness statements. If you're relying on preliminary information, label it as such.
Consistency check. Compare your preliminary recommendation against your organization's historical approach to self-disclosure. If you're departing from past practice, document why this matter is different.
Governance approval. Present the completed framework to the decision-maker identified in your template (General Counsel, Audit Committee, or full Board). Obtain written approval of the final decision and retain it in your matter file.
Preservation of analysis. This decision tree becomes part of your investigative record. If you ultimately self-disclose, the DOJ will expect to see evidence that you conducted a thoughtful assessment. If you don't disclose and the DOJ later investigates, this document demonstrates that you considered disclosure seriously. Either way, it matters.
The statute of limitations for FCPA violations extends at least five years, and enforcement priorities can shift with future administrations. The decision you make today needs to be defensible years from now, when different prosecutors might be asking why you chose the path you did.
