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83For example, the DOJ has entered agreements with Lucent Technologies, Ingersoll-Rand, Akzo Nobel, YorkInternational, Chevron, Paradigm B.V., Textron, Omega Advisors, Baker Hughes, Aibel Group, Schnitzer Steel,Statoil, Monsanto, Invision and the Micrus Corporation. Shearman & Sterling LLP, supra, note 49. 84Voluntary disclosure and the level of a company’s cooperation with the DOJ and SEC are factors that are takeninto consideration under the U.S. Federal Sentencing Guidelines when used to determine penalties under the FCPA. 85For example, in August 2006, Millipore Corporation disclosed that it had uncovered unspecified payments andcommission practices at a partially-owned Indian joint venture that may violate the FCPA; in February 2007,Johnson & Johnson disclosed that some of its foreign subsidiaries may have made improper payments in connectionwith the sale of medical devices in the course of marketing activities in two small-market countries; also in February2007, Bausch & Lomb reported to the SEC that its Spanish subsidiary has possibly provided free products and otheritems to doctors at public hospitals in Spain.19
68 FCPA investigations started between 2005 and 2007 were the result of voluntary disclosuresby the company to the SEC or DOJ.86The enactment of the SOX has served as a stimulus for corporate officials to realize thatthe government is serious about combating bribery and ensuring that corporations are engagingin accurate accounting methods.87 Although executives (as well as the corporations they workfor) can still face penalties under the SOX, it seems as though they would rather face an FCPAinvestigation on their own terms, instead of waiting for their bad acts to be discovered by theSEC or DOJ. Further, they may face harsher and increased monetary penalties for violating theaccounting and record-keeping provisions under the SOX.88 Companies hope that by timelyreporting of potential FCPA violations, the DOJ and SEC will be kinder when imposingpenalties and sanctions. As such, they are more likely to expose their FCPA violations and hopethat they can “get a break” from the government after the DOJ or SEC conducts theirinvestigation.89 A company that voluntarily discloses a potential violation and continues tocooperate through the investigation is more likely to receive favorable treatment when theinvestigation is completed and penalties are imposed.90 A significant number of cases brought bythe DOJ are resolved through plea agreements and very few cases go to trial. Through self-86See Danforth Newcomb & Phillip Urofsky, FCPA Digest of Cases and Review Releases Relating to the Bribery ofForeign Officials Under the Foreign Corrupt Practices Act of 1977, 1665 PLI/Corp 367 (2008).