Anti-Corruption and the Foreign Corrupt Practices Act (FCPA)
Straight Talk on Anti-Corruption and the FCPA
Global anti-corruption laws, the Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act are here to stay, and compliance with their provisions is an ever-expanding concern as companies operate in the increasingly global marketplace. In this climate of increased regulation, the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) are aggressively enforcing the FCPA, and more government resources are being devoted to investigating and prosecuting FCPA violations. Other governments are also enforcing their anti-corruption laws, and some are working together with the DOJ and SEC to coordinate and enhance enforcement efforts.
We Have the Experience to Navigate Anti-Corruption and the FCPA
The Andrews Kurth team has the experience to assist its clients in navigating through the pitfalls of anti-corruption laws and the FCPA. We have a veteran team, consisting of several former prosecutors and lawyers from the SEC, DOJ and US Attorneys’ Office, experienced FCPA practitioners and seasoned trial lawyers. We assist clients in establishing state-of-the art policies, procedures, training and internal controls to minimize the potential for any violation before it occurs. We also advise our clients on the legality of proposed transactions, conduct pre-acquisition due diligence, conduct due diligence on partners, agents and counter-parties and advise on how to properly respond to potential violations, including whether to self-report such potential violations to the SEC and DOJ to lessen the likelihood of any enforcement action. Of course, when necessary, we vigorously defend clients against governmental investigations and enforcement actions.
We Understand the Inside View of the Government Enforcement Process
Dealing with the SEC and the DOJ, as well as other civil and criminal authorities, both domestically and abroad, requires experience and judgment. Our inside view of government enforcement delivers proven advantages for our clients. For example, we recently assisted an oilfield services client in a three-year FCPA industry-wide investigation into the use of a customs clearing agent in West Africa, which resulted in no fines, penalties or other enforcement action by either the SEC or the DOJ, an extraordinary result in the current enforcement environment, especially when others in the industry have paid hundreds of millions of dollars in fines. Although no client can be assured of a similar result, we know the steps to take to reach a fair resolution of anti-corruption issues with government agencies.
We Advise Clients on the Full Range of Anti-Corruption Issues
Recognizing that an ounce of prevention in the anti-corruption arena can be worth many millions of dollars in savings on investigative costs and sanctions, Andrews Kurth employs a practical approach to assist its clients in having the right tools in place before a problem arises. Our team has the knowledge and experience to provide clients with the full range of representation in connection with anti-corruption laws, including:
- Counseling on appropriate anti-corruption policies and procedures, including policies on “facilitation payments,” entertaining foreign officials, use of foreign agents and other high-risk problems
- Drafting employee anti-corruption policy acknowledgments and annual anti-corruption certifications
- Assisting with anti-corruption training, including preparation of training materials as well as conducting on-site training of employees across the world
- Counseling on development of effective anti-corruption compliance programs that can prevent and remediate misconduct and lessen sanctions if a violation is uncovered
- Assisting with the review of internal accounting and other controls designed to detect potential anti-corruption violations
- Assisting with compliance audits, including assessing internal controls
- Counseling on self-reporting of potential FCPA issues to the SEC and DOJ
- Responding to FCPA inquiries from the SEC and DOJ
- Conducting internal investigations, either in advance of a government inquiry or in conjunction with one
- Serving as independent counsel to audit committees and other special committees of boards of directors in oversight of independent anti-corruption investigations
- Advising on temporary controls while an investigation is ongoing, including advising on legal requirements of document preservation
- Advising companies on operations and arrangements with agents and joint venture partners in countries with a heightened risk of anti-corruption concerns, including assisting with due diligence on agents and joint venture partners, advising on the appropriate anti-corruption provisions in agent and joint venture agreements and assisting with periodic audits of agents for anti-corruption issues
- Assisting companies on anti-corruption due diligence in connection with proposed mergers and acquisitions
- Providing ongoing advice on compliance, “red flags,” and potential violation issues as they arise
- Advising on the DOJ Opinion Procedure for FCPA issues, including assisting in requesting opinions
- Representing executives and others in need of independent counsel in connection with investigations of or by a company
- Negotiating resolution of anti-corruption issues with the SEC and DOJ
- Advising on post-resolution enhanced controls
