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Foreign Corrupt Practices Act (FCPA)
Corporations creating or expanding their global footprints depend on BakerHostetler to manage sensitive issues stemming from overseas operations that could create exposure for the companies and their employees under U.S. law.
The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) continue to focus on enforcement of the Foreign Corrupt Practices Act (FCPA), making compliance more important than ever. In addition, U.S. companies and their foreign subsidiaries face significant risk due to recent enactment of similar anticorruption laws by foreign countries, strengthened export control laws and heightened scrutiny of cross-border transactions.
BakerHostetler’s FCPA team members draw upon their significant experience to help companies manage risk. We partner with clients to conduct assessments of their internal controls, develop workable risk management processes, implement effective "best practices" compliance programs and proactively spot and investigate possible instances of illegal conduct. We also vigorously and creatively defend our clients in enforcement proceedings should such proceedings arise.
Our attorneys serve as key members of project teams helping clients defend against and avoid FCPA liability.
BakerHostetler clients benefit from:
Our strong relationships within the DOJ and the SEC.
Our relationships with the Serious Fraud Office, the United Nations and other foreign regulators.
The firm’s track record of reaching successful resolutions to complex investigations.
The insight of former top DOJ prosecutors, veteran civil trial attorneys and former enforcement officials from various federal agencies, from the Department of Energy to the SEC and the National Association of Securities Dealers (now the Financial Industry Regulatory Authority).
The unique expertise of former Congressman
Michael G. Oxley
, co-author of the Sarbanes-Oxley Act of 2002, who is now an attorney with our firm, and serves as an invaluable resource for clients.
The team works closely with our international trade practice, which has significant experience with U.S. export control laws and regulations, anti-boycott regulations and related compliance issues. With complementary strengths in technology transactions and antitrust, the BakerHostetler team helps clients navigate all aspects of doing business internationally.
Compliance and Audit Programs
When dealing with FCPA issues, we typically take the “ounce of prevention” approach. BakerHostetler's FCPA team advises clients on the design and implementation of FCPA compliance and internal audit programs. We work with general counsels and compliance officers to customize policies and processes that enhance a company’s risk management efforts while minimizing operational disruption. Our guidance is comprehensive: evaluating current processes, developing training programs, drafting compliance certification materials and providing ongoing maintenance/adjustment of policies as the company matures.
International Business Transactions
We represent corporate clients of all sizes on business transactions in more than 100 countries. Every year, our lawyers handle billions of dollars in business combinations and financing transactions having global components. We understand both the art of the deal and the special international considerations involved, including FCPA compliance.
We work with clients at every phase of the transaction, ensuring that the deal structure and all contractual agreements are in compliance with FCPA regulations. We also advise companies on engaging foreign consultants and agents, and we frequently help clients perform due diligence with potential international joint venture partners.
If necessary, we represent clients in seeking advisory opinions from the DOJ when the transaction terms or a target company’s compliance track record could pose a potential challenge.
Our attorneys also counsel companies after an international transaction, ensuring that compliance policies and procedures continue to be followed by the resulting entity.
Conducting Internal Investigations
Few firms have BakerHostetler’s level of experience advising clients on internal investigations. Over the last several years, BakerHostetler has been selected on multiple occasions by the DOJ and other governmental entities to serve as independent Monitor or Examiner to major corporations, including Merrill Lynch and the Bank of New York and Mellon Bank. In each of these engagements, BakerHostetler has conducted interviews, assessed compliance programs, tested systems and provided detailed written reports of its observations to the government. We also possess strong knowledge of forensic investigative techniques that may be used during internal corporate investigations.
When combined with our team members’ prior experience as government attorneys responsible for corporate investigations, the result is a highly knowledgeable team adept at helping clients navigate the often complex internal investigations process.
Our attorneys partner with general counsel, internal and independent auditors, forensic accountants, foreign counsel and outside investigators as necessary to identify breaches in a company’s international operations and potential areas of exposure. Along the way, the team conducts thorough interviews with all relevant parties, evaluates existing compliance programs, tests control systems and processes, reviews crucial corporate documents and determines the likelihood that enforcement proceedings will commence. We emphasize the importance of electronic discovery and document retention issues at this stage. And we provide well-supported, thorough reports to management and directors, ensuring they are fully versed on the findings, as well as potential next steps.
Representing Clients in Enforcement Proceedings
When an action by the SEC or DOJ is likely, we prepare our clients for the proceedings and work with them every step of the way. Our considerable experience within the government sector affords us a high level of familiarity with the enforcement process. We often can negotiate the terms of the investigation with regulatory officials, helping to more accurately focus its scope and the company’s requirements. Our team of experienced trial attorneys vigorously advocates for our clients during settlement proceedings, and we represent clients during any government prosecution, civil suit or private litigation that stems from the FCPA action.
Represented a market-leading energy company when the due diligence surrounding an anticipated acquisition brought concerns of possible FCPA violations committed by a former foreign agent of a successor entity. We verified the integrity of the client’s operations and made recommendations to enhance the company’s controls as the transaction moved forward.
Represented a multi-national company in an acquisition of foreign subsidiaries with pre-existing FCPA violations. In addition to advice concerning the legal ramifications of the transaction, the team investigated and analyzed the economic impact of improperly obtained contracts on the current and future financial performance of the acquired subsidiaries.
Conducted an investigation involving a major financial services institution concerning poor accounting practices for expenditures relating to overseas sponsorships.
Advised a Swiss-based manufacturer on FCPA risks associated with a contemplated initial public offering in the U.S., in light of the Company’s past history of making improper payments to government agents.
Advised a private aviation services provider on the risks attendant to maintaining a subsidiary and doing business in India.
Advised a major American energy company regarding the FCPA risks and requirements associated with doing business with the Nigerian National Petroleum Corporation.
Advised a U.S.-based hedge fund in connection with FCPA issues in Central Asia.
Advised a U.S. bus manufacturer on avoiding FCPA problems in business transactions with Angola and other oil-producing nations.
John J. Carney
George A. Stamboulidis
Contacts by Office
2012 Foreign Corrupt Practices Act Year-End Update
2012 Foreign Corrupt Practices Act Mid-Year Update
FCPA Practice Team
© 2013 Baker & Hostetler LLP