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The FCPA and Insurance Coverage

By Jonathan M. Cohen and Katrina F. Johnson

In an era of high-profile Wall Street prosecutions and shareholder derivative suits, the phrase “Foreign Corruption Practices Act” (FCPA) surely should have corporate officers and executives deeply concerned and vigilant. Not so, according to a new survey in which 80% of public company executives and their directors said that it was unlikely they would be sued this year. See Chubb Public Company Risk Survey, (June 18, 2012), www.chubb.com/corporate/chubb15576.html.

This lack of concern is despite the fact that 25% of those same surveyed companies have already been sued, and that 2011 brought a record number of settlements for FCPA violations as well as a record number of enforcement actions against non-U.S. individuals charged in the U.S. See Shearman & Sterling LLP, FCPA Digest of Cases and Review Releases Relating to Bribes to Foreign Officials under the Foreign Corrupt Practices Act (Jan. 3, 2012), http://shearman.symplicity.com/files/68c/68cf1e693fcaa178acbd6d852a86b084.pdf. And, it is despite the fact that costs related to FCPA enforcement can be enormous ' both in fines and penalties, investigation expenses, and in related civil suits. With the growing use of the FCPA in prosecutions and civil suits, companies should take steps to protect themselves and their directors and officers from FCPA-related risks using insurance and other risk-transfer tools. This article describes five strategies to help protect companies against the financial consequences of FCPA-related claims.

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