Edwards Lifesciences, a California based corporation which describes itself as “the global leader in patient-focused medical innovations for structural heart disease, as well as critical care and surgical monitoring” is under Foreign Corrupt Practices Act scrutiny.
In a recent filing, the company disclosed:
“The Company is investigating whether the allocation of certain grants and other payments initiated by certain employees of the Company in Japan violate certain provisions of the Foreign Corrupt Practices Act (“FCPA”). The Company has voluntarily notified the SEC and the U.S. Department of Justice (“DOJ”) that it has engaged outside counsel to conduct this investigation. Any determination that the Company’s operations or activities are not in compliance with existing laws, including the FCPA, could result in the imposition of fines, penalties, and equitable remedies. The Company cannot currently predict the outcome of the investigation or the potential impact on its financial statements.”
The rather obvious question is why the Company voluntarily notified the SEC and the DOJ that it is conducting an investigation to determine whether certain conduct violated the FCPA.
At the risk of being “that guy,” shouldn’t the Company first determine whether the conduct violated the FCPA and then, if it has, make a decision whether to voluntary disclose?
Why do companies sometimes do what Edwards Lifesciences did?
Did “outside counsel” encourage the Company to make this premature voluntary disclosure? If so, why?
These are all questions I touched upon in this 2009 post titled “Voluntary Disclosure and the Role of FCPA Counsel.” Even though more than ten years has passed since that post, the issues discussed in the second half of that post remain relevant today.