Our firm’s FCPA Practice Group resides within our Special Matters and Government Investigations Team. There are over 60 attorneys on this broader team, including more than a dozen former federal prosecutors and other enforcement officials, as well as lawyers who have devoted their entire careers to white-collar criminal defense. The attorneys on this team have a wealth of experience in successfully representing corporations and individuals in complex federal and state criminal investigations, internal investigations and Congressional investigations, as well as in related civil and regulatory proceedings. Our bench is deep and wide, with significant investigations experience below the partner level.
The FCPA Practice Group is concentrated in our offices in Washington, New York, Atlanta, Houston and San Francisco. Additional attorneys throughout our firm – both members of the broader Special Matters & Government Investigations Team and attorneys in other practice groups (e.g., our International Trade Group) – have significant expertise and experience with FCPA matters, as well. Our FCPA Practice Group is led by Chris Wray, who recently served as the 33rd Assistant Attorney General in charge of the Justice Department’s Criminal Division. Other members of the Group include a former Acting Deputy Attorney General, a former Acting Assistant Attorney General, a former Assistant Chief of the Justice Department’s FCPA Unit, two former U.S. Attorneys, two former Associate Deputy Attorneys General, a former Chief Assistant U.S. Attorney, a former Trial Attorney on the Enron Task Force and numerous former Assistant U.S. Attorneys.
FCPA issues are often intertwined with a range of other legal concerns. In addition to our anti-corruption counseling and investigations practice, King & Spalding attorneys command an array of supporting legal and policy disciplines to address those overlapping concerns. We are routinely involved in cross-border investigations regarding not only corruption issues, but trade sanctions, money laundering, tax enforcement, securities fraud, immigration control and many other issues. From this wealth of experience, we have successfully managed the cross-disciplinary nuances of information sharing and data privacy, foreign secrecy laws and Mutual Legal Assistance Treaties, treaty extradition, and cooperation among U.S. and foreign enforcement authorities. On the last point, in coordination with local counsel, we have navigated clients through parallel investigations involving a variety of anti-corruption and related matters pursued by the U.K.’s Serious Fraud Office and Financial Services Authority, the Polish Anti-Corruption Bureau and several regional prosecutor’s offices, the Swiss Financial Market Supervisory Authority (FINMA), and others.
We continuously assist clients in a wide variety of industries with every aspect of FCPA counseling and representation, and we do so in every region of the world. We devise, implement and update comprehensive FCPA compliance programs that reflect the rapidly-evolving expectations of enforcement authorities; we design and conduct FCPA training tailored to particular groups of people, business models and geographies; we provide legal opinions on day-to-day as well as broader issues and transactions; we directly handle all aspects of FCPA compliance for certain clients (including vetting of all prospective agents and contracts); we provide rigorous FCPA due diligence in connection with mergers, acquisitions and other business transactions; we conduct internal investigations ranging from surgical scrutiny of discrete issues to comprehensive, multi-national projects; we counsel clients regarding decisions to disclose potential FCPA violations; and we represent clients in investigations and proceedings brought by FCPA enforcement authorities and their counterparts in other countries.
Geographically, we have addressed FCPA issues arising in every part of the world. For example, we have conducted investigations involving: Angola, Australia, Azerbaijan, Bangladesh, Brazil, Brunei, Bulgaria, Canada, China, Colombia, Czech Republic, the Dominican Republic, Ecuador, Egypt, Germany, Greece, Hungary, India, Indonesia, Iraq, Italy, Kazakhstan, Liberia, Macedonia, Malaysia, Mexico, Montenegro, Netherlands, Nigeria, Poland, Russia, Saudi Arabia, Singapore, Switzerland, Thailand, Turkey, the United Kingdom, Venezuela and Vietnam.
Our FCPA expertise and experience can be summarized as follows:
Provision of Legal Opinions on Day-to-Day Sensitive Transactions
We provide legal opinions of this type on a continuous basis for many clients. Some examples of the issues that arise most often in this category include: risks associated with engaging particular agents, requests from foreign officials for travel, donations, and other benefits, issues concerning facilitating payments, concerns about the jurisdictional scope of the FCPA, and questions about indirect and successor liability. Set out below are example of each.
We perform all facets of agent vetting for certain clients, and assist others as needed. Specifically, we coordinate directly with the prospective agents as well as the client’s business personnel who are seeking the engagement. We have developed numerous tailored questionnaires in order to expedite this process. Then, based on an evaluation of risk associated with the engagement of a particular agent, we assist the client in conducting “reputational vetting.” This often consists of helping the client to identify the commercial vendor best equipped to provide the reputational vetting at issue. We identify and then seek to resolve all “red flags” (as defined by the enforcement authorities) that surface about the agent. At the conclusion of this process, we advise the client of any risks associated with engaging the agent, and we help to mitigate these risks through contract provisions, certifications, affidavits and other means.
We handle such a high volume of these agent vetting projects that we can move through them with considerable speed and corresponding efficiency.
Requests from Foreign Officials
We regularly help clients to field requests from foreign officials for sponsored travel, meals, gifts, sponsorships, campaign contributions, donations, site visits (under the affirmative defense provision), and other accommodations. For example, during March-April of each year, our clients with operations in China typically begin receiving requests from Chinese officials for “site visits” to the U.S. during the summer months. Chinese officials are quickly adapting to the FCPA-driven concerns being raised by most U.S. companies, so the requests no longer seek clearly prohibited items (e.g., sponsorship of spouses); rather, they are pushing for business-class travel, upscale hotels, side trips and the like, and the groups of requesting officials are getting larger.
To offer another example, we advise an international insurance brokerage firm on frequent requests to fund the travel of Indonesian oil company officials to participate in industry conferences abroad. To date, we have reviewed so many diverse requests from foreign officials that issues of first impression for us under the FCPA are increasingly rare. The attendant local law issues, however, remain unavoidably challenging because local laws, rules, practices, and enforcement climates vary so widely. This is important because an interaction with a foreign official that is permitted under the FCPA may be prohibited under local law, and vice versa.
Clients often ask for opinions concerning application of the FCPA’s facilitating payments exception. Typically, we encourage (and help) clients to draft detailed operating procedures for use in circumstances where they are considering making such payments. Facilitating payment issues are complicated because the FCPA authorities continue to narrow their interpretation of this exception, and because of the widely divergent treatment of such payments under local law. Nonetheless, we recently helped a large freight-forwarding company to design a procedure whereby certain nominal facilitating payments could be made to customs officials in Indonesia. In another example, we counseled an international financial services firm on paying expediting fees to obtain emergency visas to Russia.
We also receive numerous requests for analysis of jurisdictional issues under the FCPA. These questions usually involve clarifications regarding FCPA jurisdiction over current employees, business components, third-party representatives, etc. For example, companies headquartered outside the U.S. often have questions regarding FCPA jurisdiction over subsidiaries, affiliates and employees based in the U.S. Increasingly, we are confronting questions concerning FCPA jurisdiction in the context of existing financial investments involving the U.S., as well.
Questions about Indirect and Successor Liability
Also, we are regularly contacted for opinions concerning indirect exposure under the FCPA. Clients are understandably focused on the circumstances under which they may face FCPA exposure for the conduct of their agents, consultants, distributors, dealers, joint venture partners and other third-party representatives and business partners. They are also concerned about potential exposure and disclosure obligations when they learn – sometimes long after an acquisition – about historical FCPA concerns involving an acquired subsidiary or division. We try to find the right balance of due diligence, training, certifications, and contractual protections for each situation, and counsel our clients accordingly.
Provision of Legal Opinions on Larger Sensitive Transactions
Our work in this category is focused on major prospective transactions such as mergers, acquisitions, and formation of joint ventures. Occasionally, we are also engaged to provide legal analysis and guidance with respect to an especially complicated or risky relationship between a company and a particular consultant, distributor or other business partner.
One element of our work in this category involves FCPA due diligence. We regularly assist clients in evaluating potential FCPA exposure arising from large transactions. Our due diligence work ranges from acquisitions of small, localized businesses to transactions on behalf of multinational companies involving myriad assets and complicated business structures on both sides. For example, we recently assisted a Fortune50 company concerning the potential acquisition of one of its largest competitors abroad. We advised a financial services firm on FCPA-related risks associated with a potential joint venture with an international bank. We have counseled an international insurance firm on whether to exit a joint venture with an Indian partner that potentially engaged in corrupt practices; whether its Indonesian subsidiary should terminate an agreement with a third-party introducer of government business; and whether its Mexican affiliate should continue to employ a high-ranking official as a consultant. On the other end of the spectrum, we are advising a major professional sports franchise team regarding a lease arrangement with the government of a Latin American country.
This due diligence invariably requires difficult judgments based on imperfect information. The records made available during the diligence stage are often voluminous but far from complete. We have identified the categories of documents that generally prove most useful for FCPA diligence, and as a result we are able to quickly focus our document searches and requests accordingly. Similarly, we have compiled comprehensive lists of key questions for rapid adaptation when needed. These engagements often require conversations with counterparties or their counsel who are quite guarded, so we often have to extract meaning from highly-nuanced representations.
Also in this category, we assist the firm’s transactional attorneys in drafting contract provisions that will best protect our clients under the unique facts and circumstances of the deals. We have considerable experience with identifying and quantifying FCPA risks for purposes of establishing escrows and contingencies.
We have conducted numerous FCPA internal investigations, frequently working alongside in-house counsel. These investigations have spanned the globe, involving Angola, Australia, Azerbaijan, Bangladesh, Brazil, Brunei, Canada, China, Czech Republic, the Dominican Republic, Egypt, Germany, Greece, India, Indonesia, Italy, Kazakhstan, Liberia, Macedonia, Malaysia, Montenegro, Netherlands, Nigeria, Poland, Russia, Saudi Arabia, Singapore, Switzerland, Thailand, Turkey, the United Kingdom, Venezuela and Vietnam.
We are experienced in performing internal investigations of every shape and size from a review involving two attorneys tasked to address discrete issues in a single country, to far-ranging investigations involving multiple teams of attorneys (King & Spalding and in-house counsel), accountants (external forensic accountants and internal auditors), and other third-party experts simultaneously reviewing a wide variety of issues across multiple geographies. While we have conducted the lion’s share of these investigations on behalf of the companies themselves, we have also done so on behalf of independent audit or special committees of boards of directors; furthermore, we have represented individual executives in FCPA internal investigations conducted by other law firms and in parallel government investigations. Especially when combined with the FCPA experience that our former Justice Department and former SEC team members acquired while serving in government, our varied practice has given our team a wide range of perspectives on which to consult and rely.
In short, we have the necessary breadth and depth in our FCPA Practice Group to effectively handle any kind of internal investigation. Moreover, we have the experience to recognize where investigative lines may be appropriately drawn, as well as a high level of credibility with the FCPA enforcement authorities – typically the Fraud Section of the Justice Department and the SEC Enforcement Division – and with the independent audit firms that will fly-speck the investigative work of a company’s outside counsel. Given the paucity of legal authority in this area and the expansive discretion of enforcement officials, our experience and credibility can translate into important concessions in situations where the FCPA authorities get involved. In particular, the authorities have enormous discretion when scoping FCPA issues and investigations; their confidence in our investigative judgments, findings and representations can be crucial when they are weighing decisions about expanding active investigations to include additional individuals, practices, business units or geographies.
We have also helped numerous clients handle internal investigations in cooperation with the FCPA enforcement authorities. We have done so both in situations where our clients voluntarily disclosed potential FCPA violations as well as in matters where the enforcement authorities themselves initiated the inquiries. Some recent examples of our internal investigative work include:
- We represented aFortune 10 company in a far-ranging internal investigation involving China, the Philippines, Indonesia, Singapore, Bangladesh, India and the Dominican Republic. We worked closely with the company’s in-house attorneys and internal auditors (as well as outside forensic auditors) in the course of this investigation. Then, we collaborated with the company to design and implement robust remedial measures; in this particular instance, we guided the company through a significant overhaul of its FCPA compliance program. Finally, we assisted the company in self-disclosing the findings from the investigation to the SEC and Justice Department. No action was taken by the authorities.
- We represented a large, publicly-traded oilfield services company in an internal investigation involving potential bribes and recordkeeping violations in India, Russia, Kazakhstan, Malaysia, and Brunei. We worked closely with in-house counsel throughout this investigation. Ultimately, based on our advice and counsel, the company decided not to self-disclose. No government investigation ensued.
- We conducted an FCPA internal investigation on behalf of the audit committee of an NYSE-listed telecommunications company involving alleged bribery of Chinese government officials, and with the client’s authorization we self-reported the results to the SEC and Justice Department. In the course of the investigation we successfully resolved numerous delicate issues involving the role of in-house counsel in both the underlying transactions and in the resulting investigation. Neither the company nor any individuals were charged with wrongdoing.
- We represented the Audit Committee of a company that issues publicly-traded bonds concerning payments to government officials in China. After counseling the company regarding our findings, a decision was reached not to self-disclose. No investigation ensued.
- We represent a large energy company in an internal investigation involving anti-bribery issues Kazakhstan.
- We represent a global life sciences company in an internal investigation involving potential bribes and recordkeeping violations in Russia, China, Canada, and Bulgaria.
Responding to Inquiries from Government Authorities
Our team has significant experience in responding to both formal and informal inquiries from government authorities. We note the latter category – informal inquiries – because that is a growing practice on the government’s part. Informal inquiries are particularly difficult to address because, unlike a formal matter involving subpoenas, the obligations flowing from an informal inquiry can appear ambiguous. In most cases, this appearance is deceiving.
We note preliminarily that members of our FCPA practice group brought with them to King & Spalding valuable practical experience conducting and supervising FCPA investigations gained through their government service. For example, in his capacity as then-Assistant Attorney General in charge of the Justice Department’s Criminal Division, our FCPA practice group leader Chris Wray supervised the DOJ unit that is primarily responsible for the investigation and prosecution of nearly all criminal FCPA cases worldwide. Thus, he personally oversaw, for example, the landmark FCPA prosecutions of ABB Vetco Gray, Monsanto Company, Micrus Corporation, and InVision Technologies, Inc. Likewise, as a former Assistant Chief of the FCPA Unit in the Justice Department, Jason Jones personally supervised some of the Justice Department’s most important bribery investigations and prosecutions in recent years, involving recent corruption “hot spots” like the Middle East, Africa, China, and Russia; he was also a contributor to the seminal joint publication by DOJ/SEC on this topic, A Resource Guide to the U.S. Foreign Corrupt Practices Act.
Other team members with significant experience in the Justice Department include: Zack Harmon, who served as a Special Assistant U.S. Attorney, as Trial Attorney in DOJ’s Tax Division, and as Trial Attorney on the Enron Task Force. Drew Hruska served as Chief Assistant U.S. Attorney for the Eastern District of New York and as an Assistant District Attorney in Manhattan. (Both Zack and Drew served in the Deputy Attorney General’s office at DOJ where they oversaw national criminal enforcement and policy issues.) Gary Grindler recently returned to the Firm from DOJ, where he served as Acting Deputy Attorney General, Chief of Staff to the Attorney General, and Deputy Assistant Attorney General for the Criminal Division. Paul Murphy served as the U.S. Attorney for the Southern District of Georgia, as Associate Deputy Attorney General and as an Assistant U.S. Attorney. John Richter served as Acting Assistant Attorney General for DOJ’s Criminal Division and as U.S. Attorney for the Western District of Oklahoma. Cathy O’Neil also served as Associate Deputy Attorney General and as an Assistant U.S. Attorney, and Wick Sollers, after a number of years as an Assistant U.S. Attorney, has worked on FCPA investigations dating back to the significant Lockheed Corporation Egypt matter in the early 1990s.
Director for the Northeast Region – the largest region, covering 14 states and the District of Columbia. Dixie Johnson, a nationally-acclaimed SEC and regulatory specialist, is routinely listed as one of the top SEC enforcement lawyers in the U.S. by publications like Chambers USA and Securities Docket; she also served as the Chair of the Business Law Section of the American Bar Association in 2013. William (Bill) Johnson served as Senior Counsel in the SEC’s Division of Enforcement, following prior service within the SEC’s Office of the General Counsel. (Bill eventually joined the U.S. Attorney’s Office for the Southern District of New York, where he became Chief of the Securities and Commodities Fraud Task Force.)
Within the FCPA context, some recent examples of our experience responding to government inquiries include:
- We represented a Fortune 200 medical device company in a significant multinational investigation in Europe, Asia and Latin America. This investigation was part of a broader “sweep” by the SEC and Justice Department of the medical device industry, and we navigated the company through a host of self-disclosure issues and numerous government meetings. We worked closely with the company’s in-house attorneys and a team of outside forensic auditors, and at the close of this extensive investigation, both the SEC and Justice Department declined charging the company.
- In response to parallel U.S. and U.K. anti-corruption investigations, we conducted an internal investigation of an international insurance firm’s operations in Indonesia and the U.S. and we represented the firm before the Justice Department, SEC, and the U.K. Financial Services Authority. We worked cooperatively with each of those regulators and supervising forensic investigative audits in Russia, Mexico, Colombia and India. At the close of this investigation, we negotiated and received declinations from the authorities on behalf of our client.
- In connection with an anonymous email allegation, we are representing a large oilfield services company in an investigation involving Angola and Iraq. We are cooperating closely with Justice Department and the SEC in connection with this matter.
- We represented a former executive of the Polish subsidiary of a major U.S. pharmaceutical company in an SEC investigation of suspected FCPA violations involving charitable contributions by several companies in Poland. The client was not charged.
- We represented the former CEO of a Dutch corporation in a Justice Department investigation of suspected FCPA violations involving Panama.
- We represented the former CEO of an NYSE-listed producer of military aircraft and energy equipment in an SEC investigation of suspected FCPA violations involving payments to Egyptian government officials. The client was not charged.
- We represented an individual in an investigation brought by the U.S. Attorney’s Office for the Eastern District of Virginia as well as Justice Department’s Fraud Section into suspected FCPA violations in Eastern Europe.
- We currently represent individual executives of an NYSE-listed European telecommunications company and its Macedonian subsidiary in Justice Department and SEC investigations of suspected FCPA violations involving the company’s contracts in Macedonia and Montenegro, as well as in a related company internal investigation.
Other Relevant Experience
King & Spalding regularly provides compliance counseling on a range of other international enforcement issues for global corporations in industries including manufacturing, energy, financial services, and life sciences. Along with these compliance counseling activities, King & Spalding frequently reviews, designs and implements compliance training programs at all levels and in many countries.
Furthermore, King & Spalding handles a wide variety of other non-FCPA international enforcement and investigations matters. For example, in conjunction with attorneys in our International Trade Group, we have defended companies from government enforcement actions and conducted internal investigations related to dual-use export control and technology transfer matters, defense trade under the International Traffic in Arms Regulations, and U.S. economic sanctions matters. As an example of this cooperation, we recently assisted a non-U.S. oilfield equipment supplier in settling criminal charges brought by the Justice Department and a companion administrative enforcement case initiated by the Bureau of Industry and Security of the U.S. Department of Commerce related to the procurement of U.S. equipment that the supplier transshipped to Iran. Attorneys in the firm also have experience with U.K. export control and sanctions matters.
We also have recently handled extensive investigations in Europe, Asia, Africa and throughout the Americas concerning allegations of violations of U.S. trade sanctions, U.S. international tax treaties, U.S. antitrust laws, and U.S. securities regulations. In addition, we have represented clients in response to foreign government investigations, including defense of a U.S. energy industry executive under indictment in Russia.
Our firm also boasts leading subject matter experts in a number of related areas, including many former government officials from the Commerce, Treasury, State, and Defense Departments, as well as the United States Congress. And our bench includes significant investigations experience below the partner level.
King & Spalding has a strong international presence geared to provide advice on international transactions to companies on six continents from offices in the United Kingdom, Paris, Germany, Switzerland, Singapore and the Middle East, with offices in Dubai, Abu Dhabi and Riyadh. The King & Spalding Special Matters & Government Investigations Team leverages the broad strength of our international colleagues, our numerous in-house foreign-trained consultants, and our eight U.S. offices throughout our highly-integrated firm to bring a diverse variety of expertise to bear on the often multi-layered legal concerns that surround investigations and enforcement issues.