Professor Peter Reilly addresses concerns that practitioners in this space have privately and publicly debated for years. What exactly is cooperation credit? Can we quantify it? The government promises that self-reporting is in our self-interest, but the government’s interest in saying so is obvious enough. What evidence can the government provide?
The difficulty of measuring this credit is somewhat ironic, given the government’s dependence on cooperation. As this essay will show, our modern enforcement regime, which has four components—the internal or independent investigation, voluntary disclosure, cooperation credit, and a negotiated settlement—is the government’s method of maximizing general deterrence with finite resources. Ensuring that defendant companies see sufficient incentive to self-report is therefore critical to advancing the policy goals that inhere in anti-bribery enforcement.
Hence the value of Professor Reilly’s critique. He argues that the government “must provide greater transparency regarding specific and calculable benefits that can be achieved through self-reporting and cooperation” in FCPA settlements. And indeed, it may be powerful evidence of his argument’s force that very recently, the government has taken measures to do that very thing. Put another way, Professor Reilly’s is an idea whose time has come.
This Essay provides both background and foreground to Professor Reilly’s article. It first explains the role of self-reporting and cooperation in anti-bribery enforcement, suggesting that the government is essentially seeking to adjust both the numerator and denominator of a ratio that might be called Deterrence Per Dollar. This Essay will then describe and endorse Professor Reilly’s critique of FCPA enforcement, and show how the government seems to have recently responded to that critique with a flurry of important reforms. Finally, I briefly discuss the prospects of adopting additional reforms, and conclude by sounding a hopeful note that these would likewise command Professor Reilly’s support.
Andy Spalding, On Maximizing Deterrence Per Dollar: Thoughts Inspired by Peter Reilly, 67 Fla. L. Rev. 233 (2016).