Foreign Corrupt Practices Act (FCPA)

Doing business internationally can be very profitable, but it can also present some interesting challenges and legal risks. When conducting international business, many companies confront issues such as language and cultural differences, as well as different philosophies on handling business transactions. These differences may lead to legal problems, including allegations of bribery and corruption costing companies millions of dollars.

Bribing foreign officials is illegal in the U.S. as well as in most countries. The U.S. Department of Justice and the Securities and Exchange Commission (SEC) prosecute bribery cases under the Foreign Corrupt Practices Act (FCPA). In the past several years, the number of criminal and civil FCPA prosecutions has increased significantly, and the Department of Justice has vowed to seek longer jail sentences for individuals in its war against corruption. Criminal and civil penalties imposed on corporations are increasingly severe. Thus, companies doing business internationally must understand the FCPA and employ tools to avoid violation of the Act. Our White Collar Defense group, along with our International Law Practice Group, assist companies in preventing and defending allegations of foreign corrupt practices. Our attorneys routinely assist companies by:

  • Developing anti-bribery compliance policies in conformity with the FCPA;
  • Drafting and successfully implementing an effective FCPA compliance program, including FCPA training;
  • Assisting in performing due diligence on potential employees, third-party agents, joint ventures, partners and affiliates;
  • Drafting and reviewing contracts between corporations and third-party agents, joint ventures, partners and affiliates;
  • Developing methods of internal reporting of potential FCPA violations;
  • Conducting internal investigations into FCPA allegations; and
  • Defending individuals and corporations against allegations of FCPA violations;

Representative Experience
Examples of recent matters handled by our White Collar/Compliance attorneys include:

  • Led a complex internal investigation into FCPA and compliance issues in Beijing, China, on behalf of an international corporation involved in a joint venture with the Chinese government.
  • Served as a corporate monitor of a publicly-traded corporation in a healthcare fraud matter where responsibilities included, among other things, the establishment of an entire compliance department, program, policies and procedures.
  • Represented the CFO of an industrial corporation in a $46 million FCPA action.
  • Represented a multi-billion dollar domestic corporation under investigation for money laundering which resulted in a declination of prosecution.
  • Implemented web-based compliance training program (LRN) required of more than 100,000 employees.

Experience

Represented a U.S. distributor of chemicals for criminal violations of the provisions of the Montreal Protocol on Substances that Deplete the Ozone Layer
Represented a class of claimants regarding currency seized under bulk cash smuggling provisions of the U.S.A. Patriot Act
Counsel to the administrative agent and lead arranger with respect to approximately $160,000,000 in senior secured credit facilities consisting of first lien, second lien and fully subordinated tranches as well as letter of credit and working cash sub-facilities for a specialized manufacturing company with U.S. and Canadian operations. The credit facilities provided for the recapitalization of and working capital for the loan parties and are secured by liens on substantially all of such parties' real and personal U.S. and Canadian assets.
Represented the Agent with respect to a $75,000,000 asset based credit facility involving borrowers in the steel industry, one of which is located in the United Kingdom. The credit facility was secured by assets located in the United States and the United Kingdom. TR&A also provided counsel as to the transaction structure including analysis as to deemed dividend, withholding tax and pension liability issues.