FCPA & International Anti-Corruption

The Expanding Reach of the FCPA

The Foreign Corrupt Practices Act (FCPA) has become one of the most important laws for companies doing business internationally. The number of FCPA enforcement actions continues to rise -- with over a hundred cases currently under investigation -- and the amount of the fines can be massive. Notably, in December 2008, in the largest FCPA matter to date, the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) levied penalties totaling $800 million against Siemens Aktiengesellschaft, a sum nearly 20 times higher than the prior record FCPA penalty. The combined total that Siemens will pay under U.S. and German enforcement actions resolved to date now exceeds $1.6 billion in fines, penalties, and disgorgement of profits.

A new FBI unit dedicated exclusively to FCPA enforcement is the most recent example of the U.S. federal government’s commitment to pursuing corruption under the FCPA. Other governments, too, are increasingly flexing their enforcement muscles, with U.S. enforcement officials both encouraging and benefiting from international investigations.

Miller & Chevalier is recognized as having one of the pre-eminent FCPA and international anti-corruption practices in the United States. For more than 20 years, our team has advised U.S. and non-U.S. businesses in every aspect of anti-corruption and FCPA issues. Since 2006, Miller & Chevalier lawyers have made more than 100 visits to over 35 different countries on five continents, including China, Russia, and several countries each in Africa, Latin America, the Middle East, and South East Asia, in connection with FCPA investigations and compliance assessments. During that time, we helped design more than 25 corporate compliance programs and counseled dozens of corporations on hundreds of issues arising around the globe.

The members of our team are among the most experienced and knowledgeable lawyers in the FCPA and international anti-corruption arena. They include a former senior official with related responsibilities at the time the FCPA was enacted by Congress; the chair and secretary of the IBA’s Anti-Corruption Committee; a former vice-chair of the International Anti-Corruption Committee of the American Bar Association’s International Law Section; and the former chair of the American Bar Association’s 2007 Rule of Law Anti-Corruption Task Force.

Experienced Counsel in the Full Range of FCPA and International Anti-Corruption Matters

• Enforcement Actions and Internal Investigations: We have advised clients, including U.S. corporations, non-U.S. companies, and individuals, in voluntary disclosures and government enforcement actions. We have represented them in investigations by the SEC, the DOJ, U.S. Attorneys’ offices, international financial institutions (such as the World Bank), and grand juries, from the inception of allegations through final resolution. We also represent clients facing the complicated challenges presented by parallel criminal, civil, and/or administrative actions. Miller & Chevalier is one of three preferred providers assisting the World Bank in its investigations of corruption, fraud, and collusion.
   
• Global Compliance Programs and Training: Our FCPA and international anti-corruption team has designed dozens of compliance programs for a wide range of companies across many industries. We regularly perform risk assessments; develop customized policies and systems to ensure regulatory compliance; conduct FCPA due diligence in advance of mergers and acquisitions; train senior management and key personnel; and advise management and boards of directors on best practices. We also evaluate teaming, joint venture, and investment arrangements in growing markets for FCPA compliance.
   
• Independent Monitors: We have served as a government-approved FCPA Independent Compliance Monitor and have helped clients select and work with such Monitors.
   
• Counseling: We have been helping clients around the world resolve the practical and legal issues of doing business across cultures, legal systems, and commercial settings since the advent of the FCPA. Our lawyers bring a powerful mix of substantive experience, business knowledge, and creative problem solving to issues involving foreign agents and business partners; whistleblowers; procurement, customs, and export licensing officials; litigants; and enforcement officials.
   
• Formal Opinions: Clients regularly request formal legal opinions from Miller & Chevalier on issues of first impression, conflicts with government enforcement policy, close questions of law, or transactional disputes. We are familiar with the infrequently used -- but ever-available -- formal Justice Department Opinion process. We also have supervised the development of legal opinions on non-U.S. anti-corruption laws in multiple foreign jurisdictions and, where appropriate, have obtained opinions from anti-corruption non-governmental organizations (NGOs) or officials of multilateral organizations.
   
• Related Laws: Coordinating the FCPA and relevant local anti-corruption laws to ensure that risks in both areas are sufficiently addressed is an increasingly important aspect of our practice; therefore, we work with a trusted network of local firms in key jurisdictions to address the balance between FCPA and local law compliance, as well as secure advice on relevant business culture. We are also well-versed on related laws and issues, including anti-money laundering requirements, financial restrictions of the USA PATRIOT Act, Sarbanes-Oxley obligations, domestic bribery laws, and anti-terrorism legislation.
   
• Litigation: Although civil litigation of FCPA issues is uncommon, we have represented clients in matters that involved FCPA or corruption issues, both in United States courts and in international arbitration. These issues include the legal relevance of the public policy embodied in the FCPA, potential FCPA liability as an affirmative defense to breach of contract, and the effect of FCPA issues in contractual disputes with terminated consultants or third parties. We also have designed fast-track dispute settlement for contractual claims in the context of FCPA red flags and have developed expert witness testimony for trial.

Creating Resources for Our Clients

To complement our capabilities, we survey foreign markets to bring to light issues that affect our clients. Recently, Miller & Chevalier joined with six law firms in Latin America to measure the current perspectives of leading corporate executives on corruption in the region. In addition, Miller & Chevalier has been significantly involved in a publication considered a “go to” resource in the international corruption area: Getting the Deal Through: Anti-Corruption Regulation. Now in its third iteration, the publication provides information on anti-corruption law and policy in dozens of countries.

Because of our reputation as authorities in FCPA and international anti-corruption issues, we are regularly invited to lead and participate in major forums and events and have chaired or co-chaired more than 30 FCPA and anti-corruption conferences in the U.S and overseas, including the largest FCPA conference in the U.S. and the annual anti-corruption conference organized by the International Bar Association in Europe. Our lawyers are published widely in major trade and business publications and produce a quarterly newsletter that informs clients of domestic and international anti-corruption developments.