Ropes & Gray LLP: Foreign Corrupt Practices Act

Foreign Corrupt Practices Act

Overview

Prosecutions under the Foreign Corrupt Practices Act (FCPA) have increased dramatically in recent years, many involving some of the world's largest and most respected companies, and this trend is likely to continue. Companies and individuals involved with international business transactions must understand and comply with the provisions of FCPA or face the risk of investigation and prosecution by the U.S. government—from both the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC). Ropes & Gray offers a top-tier team of attorneys who advise clients on all aspects of the FCPA—from the development of compliance programs to the defense of criminal and civil claims.

Drawing on the extensive experience of practitioners in Ropes & Gray's Government Enforcement and Securities Litigation practice groups, along with colleagues from across the firm in our Life Sciences, FDA, Tax and International practices, we provide valuable services to clients with international business. Our attorneys, many of whom served as federal prosecutors and enforcement officers at U.S. Attorneys' Offices, the DOJ, and the SEC, regularly advise and assist clients with respect to:

Establishment and implementation of FCPA compliance programs
Analysis of FCPA risks involved in multi-national transactions
Investigations involving suspected violations of the FCPA
Defense against allegations of FCPA violations

Our attorneys regularly guide U.S. and multi-national corporations in meeting their obligations under an ever-growing list of related statutes, including federal anti-boycott regulations, criminal antitrust laws, and export control laws. We understand our clients' industries, businesses and operations, and have global experience in Europe, Asia, the Middle East and South America.

Compliance and Risk Management

In light of the penalties imposed by the FCPA, companies must maintain robust and well-documented FCPA compliance programs. We work with clients to create comprehensive compliance programs designed to identify, remediate, and deter possible FCPA violations, including client-specific risk assessment materials to evaluate potential vulnerabilities.

We routinely counsel clients on the scope, meaning, and application of the FCPA, including: analyzing activities and relationships with agents, distributors, and joint venture partners that pose FCPA risks; devising effective methods for monitoring and oversight; designing and providing FCPA training to educate domestic and foreign personnel; and drafting compliance certification instruments.

Recent Representative Engagements:

Represented major construction conglomerate with FCPA compliance issues, including potential FCPA investigation in Algeria.
Developed a global FCPA compliance program for a major multi-national medical device manufacturer with operations in 70 countries.
Developed a detailed FCPA risk assessment and compliance program, and related anti-corruption training program for a multi-national corporation headquartered in France with more than 25,000 employees.
Assisted with revisions and updates to FCPA-related policies and procedures for a major footwear manufacturer.
Developed a gifts and entertainment policy and a compliance program for a U.S. private equity firm active in Asia.
Developed a comprehensive FCPA program for the South American subsidiary of a U.S. public company, including protocols for scrutinizing potential agents and distributors, as well as securing certifications and audit rights.
Guided a publicly traded U.S. biotech company in promulgating policies and procedures for dealing with agents and consultants in Russia and Eastern Europe.
Provided FCPA training to the employees of a U.S. company’s Indian joint venture.
Developed a food and travel compliance policy for a pharmaceutical company to provide guidance for doctors coming to the United States from Russia.
Provided FCPA related risk-assessment for client considering entering into a joint venture with an Indian concern.

Counseling and Transactional Due Diligence

FCPA issues can frequently disrupt a transaction if not handled properly. Our attorneys assist clients in conducting pre-closing merger and acquisition due diligence to discover and resolve potential threats. When evaluating these FCPA liability risks, we work closely with the deal team to provide guidance concerning the appropriate contractual language to address compliance issues, as well as strategic advice to avoid potential post-merger violations.

Recent Representative Engagements:

Advising major medical center on business relationships with foreign governments and foreign officials.
Representing major medical device manufacturer in assessing FCPA issues as part of due diligence in connection with potential acquisitions.
Advising manufacturer of aircraft parts with extensive foreign sales on FCPA issues and export control issues.
Coordinating pre-investment diligence for a U.S. private equity firm’s investment in a Chinese company.
Customizing FCPA certifications obtained from third parties for particular situations.

Internal Investigations & Defense of Enforcement Actions

Serving clients in a multitude of industries, our attorneys conduct internal FCPA investigations, including analyses of potential violations of the anti-bribery, books and records, and internal controls provisions of the FCPA. We work with clients to assemble and review documents, interview employees, and advise boards of directors on the results of investigations. Having gathered evidence from countries around the globe, we understand the complexities of complying with the data privacy laws of jurisdictions outside the U.S.

We regularly guide clients through criminal and regulatory enforcement inquiries, and defend them against FCPA enforcement proceedings brought by the DOJ and the SEC. We are also well-versed in handling private civil litigation when allegations of FCPA violations are advanced.

Recent Representative Engagements:

Representing a major multi-national biomedical device developer in an internal investigation and presentation to the DOJ regarding allegations of improper payments to foreign officials under the Foreign Corrupt Practices Act in multiple countries, including Brazil, Argentina, Germany, Poland, Turkey, Italy, Greece, Spain, the Czech Republic, the Netherlands, and China.
Defended a medical device manufacturer alleged by the DOJ and the SEC to have paid bribes to foreign officials.
Successfully convinced the DOJ that payment allegedly made to a "member of the royal family" of the U.A.E. by investment management firm was not a bribe.
Conducted an internal investigation into travel and lodging provided to Chinese government and party officials.
Conducted an internal investigation into possible FCPA books and records violations by a U.S. public company arising from an Indian joint venture’s payment of suspect “commissions.”
Conducted an internal investigation into payments made by a U.S. public company to a sales agent in the Middle East.
Conducted an internal investigation into alleged payments to local revenue officials to resolve a large tax assessment against a Fortune 50 Company.
Conducted an internal investigation into alleged payments by overseas personnel of multi-national company to foreign agents to help secure business in China, India, Indonesia, and Mexico.
Defended a company accused of making payments to a member of the government of Trinidad and Tobago.
Defended an executive of a Fortune 500 company in an SEC investigation into the Company’s payments to officials in China.

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