Multinational businesses now confront the most rigorous anti-corruption environment in recent memory. In the United States, unprecedented numbers of prosecutions and investigations of both domestic- and foreign-based companies and their executives are now proceeding under the Foreign Corrupt Practices Act (FCPA) and the Travel Act. Reaching well beyond U.S. borders, several of the highest settlements obtained by the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have been related to conduct by foreign companies with limited connection to the United States. Meanwhile, foreign regulators have substantially increased their own anti-corruption enforcement efforts.
The consequences of violating the FCPA, and of failing to implement effective policies and practices to guard against corrupt practices wherever a company does business, also have never been higher. Recently, companies in many industries have been compelled to pay record-setting multimillion-dollar penalties; senior level executives have been prosecuted and fired; boards of directors have come under attack for failing to avoid or detect violations; and an increasing number of businesses have found that offers and payments to foreign officials can expose them to extensive risk at home and abroad.
In this environment, our FCPA and Anti-Corruption practice offers significant value to multinational businesses on many fronts. Our highly experienced team represents companies and individuals in many sensitive FCPA matters. The team’s knowledge of the legal landscape and of the public officials responsible for shaping it enables us to provide reliable insight and advice on all aspects of a company’s anti-corruption efforts, from compliance controls and internal investigations to dealing with regulators.
Our team helps clients from a variety of industries: biotechnology, computer technology, defense, energy, pharmaceutical, aerospace, telecommunications, hospitality, medical device, franchise and others. We help manage sensitive anti-corruption challenges in a variety of contexts, which are described below.
Preventing problems
Compliance
A well-designed anti-bribery compliance program provides tangible benefits for a company, including the avoidance of enforcement actions, a reduction in the fines or penalties sought by regulators (including the imposition of an outside monitor), and the establishment of credibility within an industry. Our team has broad experience in designing and implementing comprehensive compliance programs to prevent and detect potential anti-corruption risks. We work with clients to conduct tailored risk assessments designed to uncover risks specific to a region, industry, operation or business enterprise. We develop compliance policies and training programs that reflect the market conditions and laws in the specific countries where our clients conduct business. In addition, we draft and review contracts with agents, distributors and other third parties to ensure they include appropriate provisions requiring adherence to applicable anti-corruption standards and provide clients the ability to monitor compliance.
Due Diligence
Increased FCPA enforcement activity by both the DOJ and the SEC means that companies considering an acquisition or merger must carefully consider the ramifications of potential FCPA violations on transaction valuations and deal execution. Undiscovered illegal conduct may create liability for successors, potentially damaging their reputations and putting them at risk of prosecution. Our team supports clients engaged in all types of transactions by evaluating the potential corruption and FCPA risks and providing early strategic guidance, which can help avert later problems.
Counseling Corporations
Our team has a depth of experience counseling clients concerning potential compliance risks. Our clients regularly call on us to review the details of proposed transactions and contracts or discuss contemplated relationships to determine whether they pose an undue FCPA or corruption risk. We provide real-time advice, allowing clients to maintain their competitive edge while ensuring they are adequately protected.
When you have a problem
Investigations
When allegations of wrongdoing surface, a well-designed internal investigation becomes the highest priority. Any company that fails to identify and immediately halt improper conduct risks a hostile reception from regulators as well as challenges from shareholders and others about the adequacy of its corporate governance. Our team has conducted numerous investigations on behalf of public issuers and privately held firms, obtaining the facts while deftly managing the myriad of issues to which investigations like this can give rise. Issues may include attorney-client privilege, privacy restrictions, local legal considerations, preservation of electronic data, and the distinct roles of in-house counsel, senior management and the board of directors, including audit or special committees of the board. We work closely with our clients in determining whether it is in their best interests to disclose the results of an investigation to regulators.
Representation before the DOJ and SEC
When clients face potential prosecution or regulatory action, we assess their exposure and develop strategies for resolving the matter. Our team, including a former high-level supervisor from a United States Attorney’s Office, fully understands the inner workings of prosecutorial and regulatory agencies. In addition to providing significant credibility before regulators, our experience enables us to advocate more effectively on our clients’ behalf.
Representative Engagements
Given the nature of our work, we regard details of our client matters as highly confidential. However, as an indication of the scope of our experience in FCPA matters please review the following:
- Representing companies before the DOJ and the SEC. Representation includes conducting internal investigations, implementing remedial measures and negotiating resolutions.
- Assisting top executives and general counsel in verifying that their worldwide organizations are compliant with best practices and the U.S. Federal Sentencing Guidelines Manual.
- Implementing risk-monitoring processes to detect and prevent misconduct for global businesses.
- Representing international hotels and restaurant companies regarding FCPA issues, including a review and revision of their FCPA policies and training materials.
- Represented a major international pharmaceutical company providing FCPA advice and conducted internal investigations into allegations of FCPA violations in Asia, South America and Europe.
- Represented a major international food manufacturer by providing advice on FCPA issues and reviewed its business model to assess and address FCPA risks.
- Represented a worldwide financial services company to implement FCPA compliance plans responsive to concerns raised by an independent monitor, provided advice on FCPA issues and assisted on an internal investigation in South America.
- Represented a major international pharmaceutical company by providing FCPA advice and conducted a review of a significant proposal regarding payments to South American physicians who were employed by state-owned hospitals and engaging in clinical trials.
- Represented a corporate officer in a multi-country FCPA investigation.