Our work addresses both the antibribery provisions and the accounting provisions of the FCPA as they apply to domestic and foreign issuers of securities in the United States and to non-issuers. The legal services provided by the Foreign Corrupt Practices Act Practice generally fall within five categories:
Instituting Corporate Compliance Programs
We advise clients on developing and implementing internal compliance programs to reduce the risks of FCPA violations. We conduct compliance assessments to identify strengths and weaknesses in existing compliance programs. We help general counsel and compliance officers to formulate compliance policies, address specific implementation issues in the context of particular corporate cultures and multinational operations, prepare training and other educational materials, draft compliance certification instruments, and counsel internal auditors on evaluations of FCPA compliance programs. Instituting effective compliance programs is crucial to a company's ability to prevent violations from occurring and to mitigate potential penalties in the event that a violation occurs.
Reviewing Prospective Transactions
We help clients to assess prospective transactions with respect to FCPA compliance, and we advise on structuring transactions so as to satisfy the requirements of the FCPA. We help clients engage in effective due diligence with respect to the engagement of foreign agents, consultants, representatives, and joint-venture partners, and we counsel on appropriate contractual provisions to address FCPA compliance. Because of the complexity of the FCPA regime, it is frequently the case that transactions that appear not to raise FCPA issues actually do present serious concerns, while transactions that appear to pose problems actually fall within a specific exception to the rules. In addition to advising on particular international transactions, we also counsel clients on acquisitions of companies engaged in international businesses. Effective due diligence of target companies with respect to their record of compliance with the FCPA and their internal compliance systems may identify potential risks or even liabilities for the acquiring company. Such due diligence may also facilitate the post-acquisition integration of the compliance systems of the target and the acquiring companies.
Handling Internal Investigations
We have extensive experience in handling internal corporate investigations, including ones regarding possible violations of the books-and-records, internal controls, and anti-bribery provisions of the FCPA. We have worked with inside counsel, internal auditors, and external auditors to assemble and review documents, interview directors and current and former employees, and advise boards of directors and audit committees on the results of investigations. We are alert to issues of attorney-client privilege, document retention, and electronic discovery, all of which may be crucial in the event of any government enforcement proceeding. We are familiar with the complexities of multinational investigations and have considerable experience in coordinating the work of foreign counsel in such investigations.
Defending against Enforcement Proceedings
We assist clients in anticipating and preparing for possible FCPA enforcement proceedings by the Department of Justice and the Securities and Exchange Commission, and we represent clients in such proceedings. Our experience includes negotiating the scope of enforcement proceedings, responding to requests for documents, advocating client positions in submissions to and in meetings with DOJ and SEC officials, defending against prosecutions or civil actions, and reaching settlements. We are also experienced in representing clients in private litigation in which allegations of FCPA violations are made; not infrequently, such litigation is initiated by parties that have employment or contractual disputes with our clients and seek to use the FCPA as leverage. A number of our lawyers have served in the DOJ or the SEC prior to their tenure at the Firm and are not only familiar with the enforcement staffs but also have first-hand insights into the considerations that affect prosecutorial discretion in the enforcement of the FCPA.
Taking an Integrated Approach to FCPA Compliance
We are mindful that the FCPA is only one of the US legal constraints that apply to the conduct of international business. One of our strengths is our attention to the panoply of laws that must be considered in tandem with the FCPA. Chief among these are the embargo laws and the export control laws, which may impinge on a particular transaction even though it may otherwise be compliant with the FCPA. We frequently assist clients in taking an integrated approach to FCPA compliance, which considers both the export control laws and the embargo laws in assessing business plans and compliance programs. We also are experienced in the US anti-boycott laws, which may need to be addressed depending on the type of international business that a client conducts and the geographical areas in which it is conducted. Finally, we and our colleagues throughout the Firm have considerable experience in addressing a wide range of other legal issues that may be encountered by businesses that face FCPA issues, such as foreign market access, intellectual property protection, countertrade, international antitrust law, transfers of technology, joint ventures, customs regulations, restrictions on international investment, and compliance with international trade agreements.