FCPA websites and blogs are filled with company advertisements offering due diligence services, guaranteeing facts and results. But this is only one piece in the due diligence puzzle and process. Designing a review protocol, ensuring that information is gathered and reviewed, and most importantly, requiring a brief memo reflecting the review and decision-making process, along with a statement of reasons for approving a third party, will immunize the company from future prosecution. Assuming each review is done in accordance with a pre-established process, and reflects reasonable care and analysis, then there is no way the company or any executive can be prosecuted for a criminal offense. A mistake in judgment never can be “corrupt” intent.

Every company needs to set up a procedure for reviewing third party agents. There are an infinite number of ways to accomplish this review.

First, who should review a proposed third-party agreement?

Depending on the size of the company, such review should be done by a central office or official as high in the company’s hierarchy as possible. This ensures that consistent standards are applied in the review process and that the company has an overall picture of third party hiring practices. Once approved, the agent’s individual sales deals can be reviewed by regional or local counsel (assuming that the reviewing person has been trained.

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