Foreign Corrupt Practices Act & Global Anti-Corruption

For decades, Pillsbury has successfully helped clients navigate the complex legal and regulatory issues involved in doing business abroad.  In the 21st century, doing business abroad requires a global approach to anti-corruption compliance.  While increased enforcement under the U.S. Foreign Corrupt Practices Act ("FCPA"), and the stiff fines attendant to violations, have been well documented, U.S. law is not the only source of compliance risk.  Other countries, such as the United Kingdom and Germany, are increasing their focus on prosecuting their own and foreign nationals for corruption activities.  In addition, many developing countries are under heightened pressure from international organizations (such as the World Bank) to devote enforcement resources to punishing domestic bribery.  Against this backdrop, companies doing business in high-risk areas are turning to Pillsbury’s multidisciplinary FCPA & Global Anti-Corruption team for guidance on compliance and investigations.

Recently, several factors have led to a marked increase in global anti-bribery investigations.  These factors include a special focus on anti-corruption cases by enforcement officials in both the U.S. Department of Justice and the Securities and Exchange Commission; the adoption of the UK Bribery Act in 2010 and the issuance of enforcement guidance by the UK Serious Fraud Office ("SFO"); an increased focus on enforcement of anti-bribery laws by the United Nations, the Organization for Economic Cooperation and Development ("OECD"), and various regional organizations; and global cooperation between regulators investigating bribery cases.  In addition, investigators have increasingly targeted entire industries, casting a broad net.  Finally, under the recently enacted Dodd-Frank law in the United States, putative whistleblowers—and their plaintiffs' bar allies—have considerable financial incentives to "blow the whistle" against real or imagined acts of bribery.

Companies doing business in high-risk countries need a legal team that can provide the full range of services related to anti-corruption laws, from general compliance and advice on specific transactions, to investigations and aggressive representation before government agencies when potential issues are uncovered. 

Mitigating Risk
As part of Pillsbury’s front-end risk management services, our International Trade lawyers provide a resource for executives and corporate counsel to better understand the practical implications of the anti-corruption laws and all aspects of compliance and enforcement, such as:

• Assisting companies with preparing and implementing global anti-corruption programs.

• Advising companies on sensitive transactions.
• Drafting contract clauses for agreements with foreign representatives and agents to ensure the client has maximum protection.
• Advising on permitted sales and marketing activities involving government officials as well as commercial parties.
• Assisting with due diligence review of merger and acquisition targets to validate compliance programs and assess potential risks.
• Coordinating with foreign counsel to determine whether specific activities are lawful in the foreign jurisdiction.
  

Investigating and Resolving Potential Problems
Even when a business has a robust and effective compliance program in place, potential violations of the FCPA and other anti-corruption laws can arise.  When they do, they need to be addressed quickly and efficiently. 

This is where Pillsbury’s extensive experience in internal investigations and white-collar defense—working in combination with our international trade group—comes into play. Our anti-corruption team includes a number of former federal prosecutors and regulators who focus upon DOJ and SEC enforcement actions and have frequently been called upon to:

• Advise companies and Board committees on FCPA and other anti-corruption issues and conduct investigations on their behalf.
• Represent companies and individuals under investigation or charged with FCPA and other anti-corruption violations in civil, criminal and regulatory proceedings.
  

About our FCPA and Global Anti-Corruption Team

Global Reach
With offices in the United States, United Kingdom, Japan, China and the United Arab Emirates, and coordinating relationships with law firms in other countries, we are able to advise clients on the anti-corruption issues they may face from a global perspective.  With extensive legal and subject matter knowledge around the world, we are well positioned to assist our clients with responding quickly and efficiently to their compliance needs wherever they may arise. 

Decades of Experience
Our team members have represented Fortune 100 companies, foreign companies, smaller companies and individuals in FCPA and other anti-corruption compliance matters and investigations. We have assisted clients around the world, in virtually every high-risk jurisdiction, involving activities in industry targets including energy, telecommunications, healthcare, aerospace, defense and financial services.  Our extensive anti-corruption experience includes compliance counseling and investigative work relating to activities in China, Taiwan, South Korea, Vietnam, Malaysia, Indonesia, Thailand, Australia, Russia, Ukraine, Georgia, Poland, Slovenia, Serbia, Cyprus, Greece, Italy, Portugal, Spain, Switzerland, Egypt, Saudi Arabia, Iraq, Afghanistan, the United Arab Emirates, Algeria, Libya, Nigeria, Gabon, Kenya, Tanzania, South Africa, British Virgin Islands, Panama, Mexico, Brazil, Argentina, Uruguay and Venezuela. 

Anticipating Trends
As a multidisciplinary team, we have members monitoring U.S. and UK court decisions, the terms of DOJ, SEC and SFO settlements, and policy statements of enforcement officials and regulators. We discuss issues with enforcement officials and provide clients with advice on best practices. We regularly issue client alerts on new initiatives or developments so that our clients are always up to date on the most recent compliance and enforcement trends.

Representation in Key Industries Targeted by Enforcement Officials

Aerospace

• Represented a senior executive of a leading international provider of intercontinental air and ocean freight forwarding and logistics services in a DOJ investigation of that company’s business practices in Nigeria, Saudi Arabia, and other countries, and whether such practices violated the FCPA.
• Represented a major U.S. aerospace company in connection with an internal investigation of possible FCPA violations in China, Greece, Spain, Argentina, Saudi Arabia and Indonesia.
• Assisted a foreign-based aircraft manufacturer in preparing its anti-bribery policy, and advised it on the scope of the FCPA.
• Advised an aircraft repair company on anti-corruption law issues arising from the hiring of a sales representative in the Middle East.
• Performed FCPA due diligence for an acquisition of U.S. airplane component companies by a foreign airplane component company.
  

Defense

• Represented a publicly traded U.S. defense contractor in connection with the DOJ "SHOT Show" criminal FCPA investigation, the first time the DOJ sought to use traditional law enforcement techniques (i.e., informants, wiretaps, etc.) to pursue an FCPA investigation.
• Conducted FCPA due diligence for private equity firm’s potential acquisition of a division of a major defense contractor.
• Trained U.S. government contractors on FCPA compliance related to their foreign projects.
• Represented private equity firm in FCPA due diligence of potential sales to Middle East governments through required local country partners.
  

Energy

• Represented Special Committee of Halliburton Inc., regarding allegations of inadequate internal controls, criminal conduct, and breach of fiduciary duties by officers and directors arising from the DOJ/SEC investigations of the Bonny Island, Nigeria liquefied natural gas facility.
• Represented a Fortune 100 petroleum and natural gas engineering company in high-profile parallel SEC/DOJ FCPA investigations of business activity in Nigeria, in which we successfully persuaded both agencies to decline criminal and civil enforcement actions.
• Represented a foreign multinational energy and transportation company regarding a comprehensive DOJ international criminal investigation.
• Provided regular training sessions to staff of a global nuclear services company and assisted the company with preparation of a standardized anti-corruption due diligence checklist.
• Defended a major international petroleum company in grand jury investigation related to alleged improper payments, resulting in no adverse findings for the company.
• Assisted an international energy company in an internal investigation into whether the entertainment of employees from oil companies owned by Venezuelan and Brazilian governments was a violation of the FCPA.
• Represented an oil field services company in connection with Justice Department and SEC investigations into alleged FCPA violations.
• Counseled a mineral assets holding company regarding allowable gift and entertainment expenses for government officials.
  

Finance

• Drafted and assisted with the implementation, including training, of a corporate anti-bribery policy for a U.S. international bank.
• Advised a private equity firm on anti-bribery and other implications of foreign investment including sovereign wealth fund investment in connection with the acquisition of a government contractor.
  

Healthcare

• Represented a former senior executive of a Fortune 50 company in connection with an internal investigation of potential FCPA issues; obtained declination from government agencies in relation to subsequent SEC administrative and DOJ criminal inquiries.
• Counseled a medical services company on special FCPA and anti-corruption law risk factors relating to doing business in China.
• Advised a medical device company on hiring and screening potential distributors in the Middle East.
• Advised a NASDAQ-listed Chinese healthcare company on compliance with FCPA in relation to its business activities in China.
  

Technology

• Represented the special committee of a publicly traded materials processing company in an internal investigation relating to sales activities in China under the FCPA and UK Bribery Act.
• Conducted an internal investigation on behalf of a Fortune 200 industrial products company relating to the use of sales and marketing consultants in Eastern Europe and Russia.  
• Assisted a technology company with operations in Latin America in establishing a compliance program, training materials, and agreements with in-country sales representatives.
• Advised a technology company on a proposal to host foreign government officials to demonstrate their products. 
• Counseled an information technology government contractor on the FCPA pitfalls of using agents in the Middle East.
• Advised an Israeli technology company on FCPA compliance related to hiring government employees to assist with research and development.
• Assisted a software company upon its purchase of a UK subsidiary with adapting and updating its FCPA anti-corruption policy for compliance with the UK Bribery Act 2010.
  

Telecommunications

• Advised a telecommunications company on questionable payments made by an affiliate in Saudi Arabia, working in conjunction with Saudi counsel.
• Performed FCPA due diligence for an acquisition of a U.S. telecommunications company by a foreign telecommunications company.
• Prepared FCPA compliance guidance for use by a telecommunications company in educating its employees.
• Advised a satellite services company on the structuring of its relations with radio spectrum coordination and oversight consultants in Russia to avoid potential FCPA concerns.
• Advised a telecommunications information company on compliance with FCPA in China and the Middle East in relation to complex ownership structures and local regulatory requirements.