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FCPA Report Shows Companies Shelling Out to Avoid Nasty Prosecution
Corporate Counsel
November 05, 2009
With the number of foreign bribery cases soaring, corporations -- and their general counsel -- in mergers or acquisitions are spending more time and legal resources making sure they don't acquire a nasty prosecution along with the new business.
That's one of the findings in Shearman and Sterling's semiannual report on the Foreign Corrupt Practices Act, entitled "Recent Trends and Patterns in FCPA Enforcement." The report is part of the law firm's FCPA Digest.
The increased risk of enforcement has directly impacted how companies approach M&A due diligence and other business transactions, according to Danforth Newcomb, the New York-based founder of Shearman & Sterling's FCPA practice and currently of counsel with the firm. That means general counsel must pay increased attention to anti-corruption controls and compliance programs, Newcomb indicates.
The report says FCPA prosecutions in the United States, and globally, are rising. So far in 2009, 66 corporations have disclosed investigations, according to the report. Meanwhile the Department of Justice has said that at least 120 companies are under investigation -- up from 100 at the end of last year.
Philip Urofsky, a Washington-based partner at Shearman and one of the leaders of the firm's FCPA practice, notes that U.S. authorities are increasingly cooperating with a growing number of other countries on enforcement. "What is particularly significant is that, rather than going it alone, prosecutors around the world are partnering and sharing resources ... in the pursuit of investigations, gathering of evidence and apprehension of charged individuals," Urofsky says.
Another trend is how the size of FCPA fines continues to multiply dramatically. In the past year, the U.S. government levied record penalties of $800 million against Siemens AG, the Munich-based engineering company; and $579 million against Halliburton/KBR. The previous record was a measly $44 million in 2007.
The report also predicts that the government will continue to emphasize going after individuals. In the past most FCPA investigations targeted corporations, but now U.S. authorities are increasingly charging individual employees. The Securities and Exchange Commission especially is looking at charging individuals "in control" whether or not they were directly involved in wrongdoing.
The report suggests that this strategy will be tested in the courts. It states, "There will likely be a number of judicial opinions that will bring greater clarity to interpretation of the FCPA on topics such as the level of intent and knowledge the government must prove to sustain a conviction."
In the first 10 months of this year, the report states, 16 individuals have been newly charged, 4 convicted at trial, and 7 pleaded guilty or settled charges. There are another 8 individuals with trials scheduled to start in 2009.
