Foreign Corrupt Practices Act & Anti-Corruption
BuckleySandler’s FCPA & Anti-Corruption practice offers a wide range of FCPA and anti-corruption related representations, including criminal and civil enforcement defense, internal investigations, compliance program development, and daily counseling support on complex compliance questions. Our lawyers have litigated criminal and civil FCPA enforcement matters in US courts, conducted internal investigations involving countries in Europe, Asia, Africa, and the Middle East, collaborated with local counsel on anti-corruption compliance matters in over a dozen non-US jurisdictions, served as on-call compliance counsel for our client’s most challenging compliance matters, implemented corruption risk due diligence programs in a number of countries, and conducted numerous top-to-bottom reviews of corporate compliance programs.
Working closely with our White Collar Defense practice, BuckleySandler’s FCPA & Anti-Corruption practice leverages the experience gained from many criminal trials. Legal 500 describes BuckleySandler’s White Collar Defense group as “lawyers of the highest integrity” who are “extremely bright and on top of changes in the law and government enforcement priorities” and are “respected and trusted by government prosecutors.” Our lawyers have been a part of some of the most significant criminal and civil FCPA cases of recent years, including the successful four-month criminal trial representation of a defendant in the FCPA Sting trials, and the currently pending contested SEC civil lawsuit against executives of Noble Corporation.
The hallmark of our counseling practice is a sharp focus on understanding the details of our clients’ businesses to bring sound and practical advice to any counseling circumstance. We know anti-corruption doctrine and best practices, and work with clients to ensure these principles remain sound while getting business done. This integrated approach pays dividends if an enforcement matter arises and our enforcement work guides our counseling to ensure risks are mitigated.
Our team includes several former government enforcement officials, including both a 20-year veteran of the SEC’s Enforcement Division who investigated numerous high-profile FCPA actions and later served as Chief of the Office of Market Intelligence, where he founded and oversaw the Commission’s whistleblower program and a long-time Assistant United States Attorney from the District of Columbia, who has tried dozens of criminal trials. Our direct knowledge and experience of government enforcement priorities, methods and techniques is a significant benefit to clients facing FCPA enforcement actions or looking to overhaul existing compliance programs with an eye toward risk mitigation.
Members of the FCPA team are currently/have recently worked on the following matters:
FEATURED TRIALS, ENFORCEMENT ACTIONS & INTERNAL INVESTIGATIONS:
- Executive in Military and Law Enforcement Products Industry/Sting Case: We represented an individual (John Mushriqui) indicted as part of the “FCPA Sting” case, the largest FCPA criminal enforcement proceeding against individuals ever brought by the DOJ, following the only modern use by the FBI in an FCPA case of tactics such as a sting, an informant, undercover agents, and mass use of audio-visual surveillance. We defended Mushriqui in a four-month trial in which the Judge dismissed numerous counts against Mr. Mushriqui, including conspiracy to violate the FCPA and two of five substantive charges of violating the FCPA. The Judge declared a mistrial on all remaining counts after the jury failed to reach a unanimous verdict. Prior to a re-trial, DOJ dismissed all remaining charges, resulting in a complete victory for the client.
- Former Executive of Noble Corp.: We represent Mark Jackson, former CEO/CFO of an oilfield services company, in an SEC enforcement action being litigated in Houston federal court. In late 2012, the judge granted our Motion to Dismiss and dismissed the Complaint without prejudice; the SEC then filed an Amended Complaint and we are now taking extensive discovery. The case is in the midst of deposition discovery with up to 50 witnesses expected, and is scheduled for trial in April 2014. This litigation is the only contested litigation to arise out of the SEC and DOJ’s broad FCPA investigation into oil and gas drillers in Nigeria, and is one of only a handful of contested civil enforcement actions ever brought by the SEC under the FCPA.
- Dow Chemical Company: We represented The Dow Chemical Company in an FCPA case involving a fifth-tier subsidiary in India, resulting in a settled, no-admission action with the SEC, which agreed not to impose a compliance monitor. As reported in settlement papers, this representation involved an international internal investigation conducted in conjunction with a major accounting firm, and a comprehensive review and modification of the company’s FCPA compliance program and internal controls. Subsequent to the US-based enforcement action, we have coordinated with company and Indian counsel on their defense against an investigation by the Government of India, including a response to letters rogatory from the Government of India.
- Former Chief Executive Officer. Representation of individual in FCPA multi-jurisdictional investigation by United States Department of Justice, Prevention of Corruption Act investigation by United Kingdom Serious Fraud Office and related actions in the U.S. The individual client was charged by the Serious Fraud Office and client is represented by British counsel in that proceeding.
- Executives of Oil Services Companies: We have represented numerous executives of oil services companies in DOJ/SEC and internal investigations involving allegations of FCPA violations in a former Soviet republic and Middle Eastern country.
- Chiquita Brands Executive: We represented a former senior executive of Chiquita Brands in DOJ and SEC investigations involving allegations of FCPA violations and payments to a Foreign Terrorist Organization, and remain involved on collateral issues.
- International Company: Have conducted numerous internal investigations for a global company involving China and India.
ANTI-CORRUPTION COMPLIANCE COUNSELING
Control of Third Parties
- Working with a global company (100+ countries) on their third party diligence processes. Designed the process for conducting diligence of all vendors, including initial OFAC screening, relevant on-boarding processes, threshold-level diligence for publicly-available reputation information, and follow-on diligence for high-risk circumstances. In the process of phasing this in with the client, and are evaluating with them in real time the information that comes from these enhanced procedures.
- For a company that was under criminal investigation in the US and the UK, designed and implemented their third-party risk assessment and diligence processes. This involved seconding an associate to the company site and daily interactions to vet and onboard the third parties.
- On spot issues, helping clients evaluate specific risks and compliance controls, including assessment and control of joint ventures, joint venture partners, and distributors, some involving extremely challenging conflict zones.
Audit, Testing & Monitoring
- As part of an independent compliance monitorship imposed on a medical device manufacturer pursuant to a deferred prosecution agreement under U.S. law, a member of our team prepared an investigation plan and interview outlines; participated in interviews of the senior-most executives of the company, including on-site interviews with the heads of foreign offices; evaluated policies, procedures, audit plans, training programs and compliance certifications; and prepared the final monitor’s report.
- Developed audit protocols to be implemented in conjunction with routine audits, or implemented as standalone compliance reviews, and have supported clients’ implementation and evaluation of the results, including remedial controls.
- Working with two clients on their audit and risk assessment procedures, helping them to design/implement protocols and evaluate results.
Policies, Procedures & Compliance Programs
- Currently revising two clients’ codes of conduct, FCPA policies, and a number of ancillary policies and procedures.
- Developed or enhanced policies and procedures for companies in the financial services, retail, insurance, manufacturing, pharmaceutical, real estate, logistics, and chemicals sectors. Part of this work has involved coordinating the anti-corruption policies to integrate local law issues, including local law issues from the United Kingdom, France, Germany, Russia, India, China, Brazil, Korea, Turkey, and other countries.
- Worked with numerous companies on global data protection and privacy policies, an important component of an overall compliance program.
Transactional Diligence & Compliance Integration
- Supporting a client’s acquisition-related diligence of a $500+ million East Asia-based company; helping the client impress its compliance controls onto acquisition’s controls environment.
- Assisted with pre-acquisition diligence project on a Middle Eastern company; have supported a client’s assessment (and declination) of a potential acquisition in India.
- Conducted on-site training sessions for clients in multiple sectors, tailoring the various sessions to the different disciplines at issue (real estate, legal, logistics, commercial, etc.). Conducted training for the full range of employees and management, from the CEO and other C-suite executives to line-level employees in high-risk non-US jurisdictions.
- Supported a client’s assessment of company-wide training program, including enhancements to the delivery and recordkeeping systems, and updates of the content.
- Prepared law and compliance departments to train-the-trainers, and conduct multiple training sessions at global meetings.
- Represented clients in the following sectors: financial services (fund management, hedge funds, insurance, investment banking, retail banking); engineering, pharmaceutical; oil and gas; petrochemical; technology; retail food service; heavy manufacturing; logistics; real estate; energy; and power generation.
- Represented clients on matters involving China, India, Japan, Philippines, Indonesia, Vietnam, Pakistan, Afghanistan, Iraq, Nigeria, Egypt, Jordan, Kuwait, Lebanon, United Arab Emirates, Yemen, Saudi Arabia, Bahrain, Mexico, Nicaragua, Colombia, Peru, Ecuador, Venezuela, Brazil, Argentina, Turkey, Russia, Ukraine, and Kazakhstan.
Attorneys in the firm’s practice are active writers and speakers on FCPA and anti-corruption topics and have recently made in-person presentations in Tokyo, New Delhi, Singapore, Dubai, Abu Dhabi, Milan, Geneva, Shanghai, Seoul, London, Brussels, and Vancouver, as well as numerous US cities.