Companies involved in international business face risks resulting from improper payments to foreign government personnel, which are prohibited by laws such as the U.S. Foreign Corrupt Practices Act (FCPA), the U.K.’s recently amended Bribery Act, and similar laws enacted by member states of the Organization for Economic Cooperation and Development (OECD). Some of these laws, including the U.K. Bribery Act, also criminalize corrupt payments in business transactions between private parties. Enforcement of these laws has increased sharply, both in terms of the number of cases brought and the severity of sanctions imposed. U.S. officials describe FCPA enforcement as one of their top priorities, and have suggested that corrupt payments may be linked to international terrorism. Recently, law enforcement authorities have started to use tactics previously reserved for matters involving organized crime.
More than 30 K&L Gates lawyers have extensive experience handling FCPA matters, and many have handled these issues for two or three decades, in some cases back to the inception of the FCPA in 1977. Our team includes former high-ranking officials of the U.S. Securities and Exchange Commission and the U.S. Department of Justice, including Dick Thornburgh, who served as Attorney General of the United States. Our experience extends to every area in which FCPA and anticorruption issues typically arise.
Our clients range from Fortune 100 companies to smaller public and private entities, and they operate in a wide range of industries, including natural resources, energy, pharmaceuticals, defense, transportation and logistics, power generation, and financial services. We have handled matters in Africa, Latin America, the Middle East, Europe, South Asia, and East Asia and, with offices in close proximity to virtually all of the world’s major commercial centers, we can serve client needs promptly and efficiently, wherever they arise.
Compliance policies and procedures can reduce the risk that an improper payment will occur in the first place. An effective corporate compliance program can also result in lower levels of sanctions if a violation does occur and under the U.K.’s Bribery Act, can insulate a company from liability entirely. We work with clients to help them design and implement appropriate policies, procedures and controls. We also help clients develop and present training programs tailored to their specific needs. For example, we recently conducted training for client employees in Russia, China, Japan, Southeast Asia, and Southern Africa.
Mergers, acquisitions, and joint ventures can carry FCPA and other anticorruption liabilities for prior violations by a counterparty. We help clients to identify and assess these risks, both through due diligence prior to a transaction, and through contractual allocations of risks among the counterparties.
Agents, representatives, and consultants can create FCPA liability for a company that employs them, even if such payments were not authorized and not known to the company. These risks can be addressed by careful selection and retention of such intermediaries. We help clients conduct and assess the results of due diligence on potential intermediaries, and counsel on appropriate agreements for the retention of these third parties.
Internal corporate investigations permit companies to responsibly address indications of potential wrongdoing and, where necessary, take appropriate remedial actions to prevent future violations. We frequently conduct such investigations on behalf of management, audit committees, and other board committees. These investigations often require substantial resources and unique skills, including the ability to conduct a broad inquiry in a foreign country within a short time frame, and to address issues with broader legal implications, such as data protection laws and the preservation of applicable privileges. We also help clients assess whether information should be voluntarily disclosed to law enforcement authorities.
Law enforcement authorities are increasingly active in investigating potentially improper payments and seeking to sanction those who may have violated the law. K&L Gates has one of the largest and most experienced Government Enforcement practices of any law firm. Many of our FCPA lawyers practice in our Government Enforcement group and are routinely involved in helping clients respond to government inquiries and, as necessary, vigorously defending them before the SEC and DOJ.