Article by John Joy, Managing Attorney, FTI Law. 

The Foreign Corrupt Practices Act (FCPA) is a U.S. law that prohibits bribery. The FCPA is enforced by the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). Both agencies regularly issue fines to companies for violating the FCPA and pursue violations aggressively. In addition, the SEC also offers incentives to those who report violations such as whistleblower awards.  

If you want to report FCPA violations, here are the 5 steps to take:

• Speak to an experienced FCPA attorney 
• Determine if there is an FCPA violation 
• Preserve evidence of the violation
• Decide where to report 
• Don’t delay in reporting 

In this article, updated for 2022, we’ll talk you through each of these steps. If you have witnessed an FCPA violation and want to figure out if you could claim a whistleblower award, take our anonymous online evaluation here. 

1. Speak To An Experienced Attorney 

If you are thinking of reporting an FCPA violation, it is critical that you speak with an experienced FCPA attorney. First, the attorney will be able to help you figure out whether there has been an FCPA violation or what further information you need to make that determination. Second, if you report an FCPA violation to your employer or anyone else before speaking with an attorney, you may face harassment, retaliation or lose out on the ability to claim a whistleblower award. This can happen even if your employer offers a ‘confidential’ reporting channel or an anonymous ‘whistleblower hotline.’ FTI Law has experienced FCPA attorneys and offers free consultations that are completely confidential. Speaking to an attorney will cost you nothing, help you report the FCPA violation and often and may help you claim a whistleblower award.

2. Determine If There Is an FCPA Violation

The FCPA is a law of limited application, meaning it does not apply to every person and company in the world. The first question you will have to figure out is whether the perpetrator you have identified is subject to the FCPA, meaning that they are required to abide by the law.  

After confirming the company or person you wish to report is subject to the FCPA, you will need to learn the basic elements of an FCPA violation and check if the conduct you have witnessed matches those elements. The most common FCPA violation is bribery, and the elements of a violation are:  

• Corruptly giving 
• Anything of value 
• To a foreign official 
• To obtain or retain business

Once you have determined that there has been bribery, or there might be, you should move on to the next step. 

3. Preserve Evidence Of the Violation  

In addition to reporting what you have witnessed, you can also supply documents, emails or other evidence to support claim. This will help convince the DOJ and SEC to investigate the FCPA violation. However, it is also important that you do not obtain evidence illegally, such as by accessing other people’s property or devices without their permission. When figuring out what evidence to gather, your attorney will be able to advise what it is safe to collect and what it is not. Even if your employer has made you sign an Non-Disclosure Agreement (NDA), you are always entitled to speak to your attorney about these issues without breaching the NDA.

4. Decide Where To Report First 

When reporting an FCPA violation, you may be entitled to a whistleblower award for reporting and potentially protection from retaliation. However, much of this could depend on who you report to first. For example, certain U.S. laws provide protections for individuals who report FCPA violations to federal regulators like the SEC and DOJ. However, those protections do not apply if the person only reports to their employer. Similarly, if you report an FCPA violation to the SEC, you could be entitled to an SEC whistleblower reward, but reporting only to the DOJ may affect your ability to claim an award.  In 2021, the SEC paid a whistleblower $28 million for reporting FCPA violations. 

5. Don’t Delay In Reporting

Both the SEC and DOJ have specific time limits in which they can prosecute FCPA violations.  For certain violations, this could be as short as 5 years, and an investigation could take 2-3 years.  If you want the SEC and DOJ to investigate the violation, you need to give them as much time as possible by reporting early. If you want to claim a whistleblower award this is especially important, as if someone reports the same information you have before you, they will get the whistleblower award.  Even if you are the only person with the information, the SEC can reduce a person’s award if they delayed in reporting. 

 About the Author

John Joy is the Managing Attorney and founder of FTI Law, a law firm that specializes in representing FCPA whistleblowers. John is a New York whistleblower attorney who has worked for almost a decade on FCPA and corruption cases around the globe. Prior to founding FTI Law, John worked at an elite international law firm in New York and London representing clients in multi-national investigations before the DOJ, SEC, FINRA, FCA & SFO. John is one of the few whistleblower attorneys with extensive international experience working with Fortune 500 corporations who are often the subject of whistleblower complaints.