As evidenced by total fines and penalties exceeding the billion-dollar mark and by increasing numbers of executives named, arrested, convicted, and jailed, the upward trajectory of Foreign Corrupt Practices Act (FCPA) enforcement is continuing without pause. This is facilitated by increased prosecutorial resources, including specialized FCPA units at the U.S. Department of Justice (DOJ) Fraud Section and U.S. Securities and Exchange Commission (SEC) Enforcement Division, dedicated agents at the FBI, and new sources and leads provided by bounty-seeking whistleblowers. Indeed, the SEC has approved more than $100 million in such awards. New incentives have been employed to assure company self-reporting, including the DOJ’s pilot program for self-reporting and the cooperation credit “all or nothing” approach of the Yates memo. All these factors ensure the reality that FCPA enforcement will continue at a brisk pace. When complemented by recent enforcement actions of foreign authorities, and even broader anti-corruption statutes like the U.K. Bribery Act of 2011, that reality is even more obvious.
Given the risks inherent in this environment, obtaining advice and counsel from experienced anti-corruption practitioners is critical. At Crowell & Moring, we provide a full range of services to clients confronting potential FCPA issues: compliance counseling, internal investigations, or even the defense of a high-stakes government investigation and litigation, including parallel civil litigation. We strike the right balance between lifelong defense lawyers, former prosecutors, and former enforcement attorneys, assembling an efficient and experienced group of professionals able to assist in any scenario. Our team was named an “FCPA Powerhouse” by Law360, and our lawyers are consistently ranked as leaders in their field by Chambers USA and The Best Lawyers in America. Our team has successfully represented clients for decades in more than 80 countries spanning six continents. We have negotiated multiple declinations and an unprecedented dual non-prosecution agreement from DOJ and SEC on behalf of our corporate clients. On behalf of a corporate executive we obtained a dismissal with prejudice in one of the few FCPA criminal cases to go to verdict. We also obtained dismissals of civil litigation claims, in both class actions and derivative actions, on behalf of our corporate and individual clients.
In addition to our success with government and private plaintiffs, we also have extensive experience with other stakeholders often present in these matters. Whether that includes the board, the audit committee, a special litigation/investigation committee, management, external auditors, lenders, major investors, or a corporate monitor, we understand and appreciate the different interests that exist during these types of matters. We also have a wealth of experience navigating what are often competing demands for information, mitigation, and resolution.
Simply put, when the stakes are highest, we are counsel of choice for numerous multinational corporations and their executives.
- Unprecedented Dual Non-Prosecution Agreement (NPA)
We conducted an internal investigation of FCPA issues for Ralph Lauren Corporation in Argentina. We self-reported the matter to both SEC and DOJ and orchestrated all remediation efforts, including risk assessments, compliance and training review, and implementation. We successfully negotiated unprecedented dual NPAs with both agencies, which included substantially discounted monetary penalties, and we convinced both the DOJ and SEC not to impose a corporate monitor. Finally, we drafted and presented annual NPA compliance reports to both agencies over the course of a two-year reporting term, which concluded in April 2015.
- Dismissal with Prejudice for CFO
After a criminal trial lasting more than five weeks in federal court, we obtained a dismissal with prejudice, based on prosecutorial misconduct, of all charges against our client, the CFO of a private manufacturer. This was one of the few FCPA cases to go to verdict and included allegations of improper payments to government officials in Mexico.
- Deferred Prosecution Agreement (DPA) for Magyar Telekom
We represented Magyar Telekom, a former NYSE-listed company based in Hungary, during internal, DOJ/SEC, and multiple foreign investigations over the course of six years. Our work included revamping the client’s anti-corruption/ethics program and procurement controls for operations throughout Eastern Europe, and providing regular reports to the board of directors. We successfully negotiated a two-year DPA with DOJ, drafted and presented annual DPA compliance reports to DOJ and SEC, and ultimately secured dismissal with prejudice of the criminal information upon the successful conclusion of the DPA.
- Declination for Aviation Company
We conducted an internal investigation, self-reported, and negotiated a full declination with DOJ on behalf of a domestic aviation company. The matter involved FCPA issues with a Kuwaiti government customer.
- Declination for Fortune 100 Company
We represented a Fortune 100 company in a DOJ and SEC investigation of potential FCPA violations in India. Following an extensive investigation that included witness interviews, document collection and review, a forensic accounting review, in-depth analysis of legal consequences, and briefings to corporate management, we convinced both agencies to decline charging our client. Notably, SEC filed a settled enforcement action against another entity involved in the same transactions.
- NPA/Declination for Freight Forwarding Company and CEO
We represented an international freight forwarding company and its CEO in connection with FCPA allegations related to business activities in West Africa. We successfully negotiated a private non-prosecution agreement with no financial penalty from DOJ and a declination from SEC for both clients.
- Princeling Cases for Senior Executives
We represent current and former senior executives of three major global financial institutions in connection with internal investigations and related criminal and regulatory inquiries by DOJ, SEC, and Federal Reserve Bank of New York, as well as by the Hong Kong Independent Commission Against Corruption and the Hong Kong Monetary Authority into alleged bribery and FCPA violations arising from the banks’ hiring practices in Asia.
- Representation of Monitor for Multinational Corporation
We represented the DOJ/SEC-appointed monitor of a multinational corporation under a three-year DPA, and assisted with annual world-wide risk and control assessments, including forensic audits at multiple world-wide sites, and drafting annual monitor reports to both agencies.
- Drafting of Policies and Procedures for Multiple Clients
We have drafted anti-corruption and related policies for multiple clients, including a medical device manufacturer, a telecommunications company, a major retailer, and an energy company. These include anti-corruption compliance policies and procedures, local compliance officer handbooks, and third-party due diligence materials.
- Pre- and Post-Acquisition Due Diligence in Peru and Chile
We assisted a client during its pre-acquisition due diligence and are conducting post-acquisition due diligence of a target business’s operations in Peru and Chile. The diligence has included in-country interviews, document collection and review, assessments of compliance policies, coordination with local counsel, interactions with the target’s counsel, direction of forensic accounting support, coordination with the client in conducting a post-acquisition risk assessment and compliance program implementation, and ongoing advice to the client’s general counsel and other senior officers regarding the results of the review and related risk mitigation.
Among the most exceptional attributes of our FCPA practice are the depth of experience and credibility of our anti-corruption lawyers. Our lawyers have been honored for their work in leading industry publications, including The National Law Journal and Los Angeles Daily Journal, and they are regularly recognized by clients and peers in publications such as Chambers USA and The Best Lawyers in America, as well as many others. Our team also includes Fellows of the American College of Trial Lawyers.
With a team that includes many former officials in federal law enforcement and regulatory agencies, we understand the government’s priorities and strategies in enforcing the FCPA and related laws. Our lawyers have held key leadership roles in the following agencies, among others:
- The Department of Justice, including a former assistant chief of the Criminal Division, Fraud Section and one of the original prosecutors on the Enron Task Force, a former Acting U.S. Attorney, and numerous former assistant U.S. attorneys and local prosecutors
- The Securities and Exchange Commission, including a former Branch Chief, several former counsel, and a senior counsel in the Enforcement Division
- The U.S. Office of the Independent Counsel, including a former senior associate independent counsel