Greenberg Traurig's Global Anti-Corruption Group is a multi-disciplinary team of global governance, compliance, economic crime, securities, and corporate lawyers with extensive experience in evaluating, designing, enhancing, monitoring and defending global corporations’ anti-corruption compliance programs based on international laws and standards, including the Foreign Corrupt Practices Act (FCPA). The team’s experience also includes conducting corruption-related M&A due diligence, internal investigations (frequently multi-jurisdictional), risk assessments, compliance assessments and program implementation efforts (such as training) both in the U.S. and abroad. We also represent clients before the U.S. Department of Justice (DOJ), the U.S. Securities and Exchange Commission (SEC), and non-U.S. enforcement agencies, as well as World Bank, and regional Development Banks in enforcement actions. The Group consists of numerous well-qualified professionals, including many with local language and law knowledge in various countries. The Group members frequently collaborate, enabling us to staff matters both effectively and efficiently to the benefit of our clients. We are able to tailor a team to best address a project’s and client’s needs, whether that means a handful of qualified attorneys or dozens in multiple jurisdictions.
GT offers a unique combination of capabilities, specifically handling and advising on:
- Anti-corruption investigations and enforcement matters
- Anti-corruption laws, regulations and compliance programs
- World Bank compliance matters
Key features of our practice include:
- Expertise - Unique combination of litigation and compliance professionals who work seamlessly together to achieve meaningful results for clients.
- Proven results in cutting edge cases - We make every effort to assist clients to prevent violations, and when violations do occur, to resolve them with minimal financial or reputational harm. Many of our biggest successes are not publicized, because they involve declinations or other dispositions without charges or formal settlements with enforcement agencies.
- International legal and language knowledge - We have local professionals experienced in advising on local anticorruption laws, as well as language skills in high risk markets, such as Mexico and China.
- Capacity – We have a significant number of well-qualified professionals, which allows us to take on large, multijurisdictional matters.
Effective Anti-Corruption Compliance Programs
Designing, implementing, and monitoring an anticorruption compliance program requires a sophisticated analysis of the corruption risks that arise in the company’s business environment. Among other factors, compliance policies and procedures must take into account the size of the organization, countries of operation, the nature of the client’s business and business objectives, existing business processes, and the requirements of both local and foreign governments’ expectations regarding compliance. GT works with clients to plan compliance projects, appropriately taking these considerations into account. A meaningful, risk-based anti-corruption compliance program must also be implemented based on both sound legal judgment and common sense, which GT's lawyers bring to each engagement.
In the current enforcement environment, companies operating internationally should have an effective anti-corruption compliance program that tracks the requirements of the U.S. Department of Justice (DOJ) Sentencing Guidelines, the U.S. DOJ and the U.S. Securities and Exchange Commission (SEC) Resource Guide and the Organisation for Economic Co-operation and Development (OECD) Good Practice Guidance on Internal Controls, Ethics and Compliance (2010). GT has significant experience assessing and enhancing compliance programs consistent with these standards.
Maintaining an effective compliance program is important for several reasons. Primarily, implementation of an effective compliance program allows a company to operate in compliance with the law by preventing and detecting corrupt activity. Furthermore, the effectiveness of a company’s compliance program is a critical element of an enforcement agency’s decision whether to bring an enforcement case. For example, enforcement agencies have declined prosecutions for companies with a “robust compliance program” (extensive compliance organization, thorough training of employees, financial controls, and due diligence on business partners, among other elements). Additionally, in the event that an enforcement action is initiated, the existence of an effective program can significantly reduce the ultimate penalties imposed. Finally, adherence to an effective compliance program enhances an organization’s international business opportunities by preventing (or rescinding) debarment and suspension measures, and demonstrating to potential partners a commitment to high standards of ethical and legal conduct.
Defending FCPA and Corruption-Related Allegations
Most countries’ laws prohibit bribery of local government officials, as well as bribery of foreign government officials. The most heavily-enforced of these is the FCPA, which broadly prohibits bribery of non-U.S. government officials by U.S. issuers, domestic concerns and certain other persons. The FCPA anti-bribery provisions prohibit not only monetary payments, but any offer, promise, or gift of anything of value, whether tangible or intangible. Thus, the FCPA can be violated even if nothing is actually given or paid to a government official. Furthermore, the FCPA provides no de minimis exception for the value promised or conferred. The FCPA also requires U.S. issuers to maintain accurate books and records and reasonable accounting controls. Failure to do so, can subject a company to significant penalties.
Violations of the FCPA can lead to both criminal and civil penalties (including disgorgement of profits), with dual enforcement jurisdiction vested in the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC). U.S. authorities have become increasingly active in FCPA enforcement. In the most recent series of high-profile cases, including enforcement actions, the DOJ and the SEC have imposed penalties running to the hundreds of millions of dollars. Penalties in excess of $100 million have become almost commonplace.
The FCPA has significant extraterritorial reach. It applies to any company that either has a class of securities registered pursuant to section 12 of the Securities Exchange Act of 1934 or that is required to file reports with the SEC pursuant to section 15(d) of the Exchange Act, including non-U.S. companies that have securities listed on U.S. exchanges. In addition, the FCPA not only applies to the company, but also to any stockholder, officer, director, employee, or agent acting on its behalf. As is the case with U.S. companies, enforcement actions against non-U.S. entities and individuals have increased dramatically in recent years. Although the FCPA generally does not apply to a non-U.S. subsidiary of an issuer or domestic concern, the U.S. parent company, under certain circumstances, can be held responsible for bribery by its subsidiary. Issuers are also responsible for ensuring that their non-U.S. subsidiaries comply with the FCPA books and records provisions.
GT has significant experience both in investigating allegations of corruption and defending allegations before the relevant enforcement agencies. Many of our most significant representations have resulted in declinations—meaning no prosecution or penalties were imposed.
The Global Anti-Corruption Team includes attorneys with deep international trade experience. Our attorneys are familiar with import and export laws and regulations, and generally how international commerce and logistics function. Accordingly, we bring extensive practical expertise to examinations of FCPA and anti-corruption allegations. Governmental touch-points, corruption risks and other regulatory concerns converge in international commercial activities, such as the clearance of goods through customs, use of local agents to bid on government procurement projects, and U.S. government reporting requirements for disclosure of commission payments to agents used in sale and export of defense articles and services. We are able to adeptly spot these issues in investigations, risk assessments, compliance assessments and due diligence matters.
We have significant experience working with companies under a DOJ or court-ordered monitor (domestic kickback, fraud or other allegations). Furthermore, we have worked with various clients in enforcement proceedings before the DOJ, where we have simultaneously worked to enhance and implement the companies’ compliance programs. In so doing, we have assisted the companies to successfully enhance their programs, and communicate the enhancements to the DOJ such that the DOJ refrains from imposing a monitor. We have a solid understanding of not only a monitor’s obligations, but also the government expectations for both a monitor and a company acting under a monitor. Moreover, we have stellar experience and judgment in coordinating communications between a company and its monitor, as well as between a company and the enforcement agencies.
Our lawyers have handled matters in the following countries, among others:
United Arab Emirates