Roundtable: Compliance and Litigation Issues As Foreign Corrupt Practices Act Enforcement Is On The Rise

by The Metropolitan Corporate Counsel, November 2nd, 2010.

The fight against corruption and bribery has intensified. As a service to our readers, we present a roundtable discussing the implications for corporations consisting of the following partners of Akin Gump Strauss Hauer & Feld LLP: Paul W. Butler, Mark J. MacDougall, Edward L. Rubinoff, Wynn H. Segall and Thomas McCarthy, Jr. , in Washington, D.C.

Editor: Ed, please kick off the discussion.

Rubinoff : Wynn and I are regulatory compliance lawyers, and Paul and Tom are white collar litigators. Mark’s areas include investigations, cross-border litigation, reputational recovery, and white collar defense. We have a multi-disciplinary, cross-departmental approach to dealing with FCPA and anti-corruption. Wynn and I focus mostly on the compliance and counseling side – helping people understand how these laws apply, developing programs to keep companies compliant, and conducting due diligence in transactions. Paul and Tom focus mostly on investigations and enforcement, so we’ll try to keep our answers divided up that way as much as possible.

From my perspective, the key take-away is that, with recent trends in increased enforcement, escalating fines, extensions of the FCPA to non-U.S. persons, increased focus on individual liability and a new whistle-blower provision, there has been a broad expansion of the FCPA.

Coupled with the internationalization of anti-corruption laws, these trends add up to one critical message for companies – not just U.S. companies – but companies around the world – that they must become familiar with the various anti-corruption laws of the jurisdictions in which they operate.

Companies need good advice on how these laws apply to their operations and how to develop effective policies and procedures to comply with them. The consequences of non-compliance are enormous in terms of financial impact, reputational harm and the ability to do business around the world.

Editor: Are the DOJ and SEC perceived as good guys by virtue of their vigorous enforcement of the FCPA?

Rubinoff: That depends on who you ask or if you’ve been subjected to one of their investigations. Insofar as the DOJ and the SEC have been very aggressive and proactive in enforcing these laws against non-U.S. persons, it could be said that they are helping to create a level playing field for U.S. companies competing around the world. To the extent that companies outside the U.S. now are subject to the FCPA and other national laws, perhaps U.S. companies are enjoying the benefits of a greater degree of fairness in international business dealings. (continue reading… )

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