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One of the clearest trends in Foreign Corrupt Practices Act (FCPA) enforcement today is increased cooperation between the authorities of the United States and those of other nations � and the consequent rise of multijurisdictional investigations. The U.S. Department of Justice is more than ever before reaching out to its counterparts, particularly in Western Europe, to share evidence and theories and obtain access to witnesses. The parallel investigations of Siemens A.G. in Germany and the United States provide one recent example of the phenomenon (see Mike Esterl, “Corruption Probes Threaten Germany’s Image: Siemens, DaimlerChrysler Get Caught Up in Inquiries,” Wall Street Journal, Nov. 24, 2006, at A3), as does a recent plea agreement by Statoil ASA. This Norwegian energy company became the subject of the first criminal FCPA enforcement action against a non-U.S. company over a plan to bribe an Iranian government official in exchange for oil and gas development contracts. The guilty plea announced in October specifically mentioned that the Norwegian authorities conducted their own investigation and, to underscore the point about multinational cooperation, the $21 million penalty imposed in the United States was reduced by the amount of the penalty levied by the Norwegians. U.S. v. Statoil ASA, No. 1:06-cr-00960-RJH (S.D.N.Y. 2006); see also SEC Release No. 54599 (Oct. 13, 2006). Justice Department successes like the Statoil case suggest that cross-border cooperation and multijurisdictional investigations are likely to increase in the future � which will in turn create new difficulties for counsel representing companies in FCPA investigations. The first type of difficulty a lawyer is likely to encounter is in obtaining information. When news of a government investigation comes in, the first thing a lawyer will want to do is to determine whether things are still getting worse and to stop the bleeding: Have documents been seized? Have employees been interviewed? Have accounts been frozen or offices closed? Then the lawyer will need to get oriented to the facts surrounding the investigation: What are the authorities looking at? How broadly are they looking? Are other entities involved and will ongoing business activities be interrupted? When an investigation is occurring in the United States, it is relatively easy to obtain accurate and timely answers to these questions. That is not always the case, however, when an investigation is occurring six or more time zones away. A related difficulty is understanding the pace, rhythm and trajectory of an investigation in a non-U.S. jurisdiction. In the United States, the context is familiar and the motivations and methods of the prosecutors are generally understandable. In foreign jurisdictions, by contrast, these baseline understandings and shared contexts do not necessarily apply. What are one’s client’s rights in limiting the government’s request for documents? What would constitute grounds for challenging a search warrant or a request for employee testimony? Will they attempt to take the employee into custody? How much may one push back on the investigators’ requests? Navigating those hazards can be disorienting for counsel and risky for clients. On the substantive side, there will be similar problems in obtaining information about a client’s rights and obligations in non-U.S. jurisdictions. For example, what are the laws that apply, including jurisdictional and procedural laws? How far back in time does the anti-bribery law reach? In France, for example, the law implementing the Organisation for Economic Co-operation and Development’s Anti-Bribery Convention only goes back to 2000, but conduct prior to that time could be subject to other laws prohibiting the waste of corporate assets. It is also important to understand law enforcement policies and perceptions in the foreign jurisdiction. In some jurisdictions, for example, conducting an internal investigation may be considered just a step away from coaching witnesses or obstruction. In others, certain data or documents relating to witnesses could be protected by law from disclosure. Questions of cooperation The second set of issues raised by multijurisdictional investigations involves response and coordination. In U.S. bribery investigations, the client’s decision about how to respond to evidence of wrongdoing � cooperate or not? self-report or sit tight? � can be difficult but will at least be guided by certain familiar parameters. Cooperation and self-reporting result in leniency, which in certain circumstances can take the form of a nonprosecution agreement or deferred prosecution agreement, as was the case in investigations involving InVision Technologies Inc., Micrus Corp., and Schnitzer Steel Industries Inc. See, e.g., Letter Agreement re General Electric Company and InVision Technologies, Inc., U.S. Dept. of Justice Criminal Division, Dec. 3, 2004; see also http://www.usdoj.gov/opa/pr/2004/December/04_crm_780.htm. For a company deciding not to self-report, implementing appropriate remedial measures can help soften the blow if the government ever discovers the conduct on its own. Even within these parameters, the factual circumstances can sometimes make such decisions difficult for U.S. companies. The involvement of a foreign jurisdiction only compounds the variables affecting these decisions. Does the foreign jurisdiction reward cooperation? Or will cooperation only make things worse? These questions raise what could be the most significant decision point for companies facing a multijurisdictional investigation: whether to maintain a consistent posture with respect to cooperation and self-reporting in all jurisdictions. In the United States, cooperation has come to mean more than simply complying with government requests. It means reporting to the government in real time what the company itself is learning. It means sharing facts, theories, plans and strategies. At least until the McNulty Memorandum, Deputy Attorney General Paul J. McNulty, “Principles of Federal Prosecution of Business Organizations,” (available at http://www.usdoj.gov/dag/speech/2006/mcnulty_memo.pdf), it often meant waiving attorney-client privilege. In short, it can look very much like helping the government build a case against one’s client. Depending on the facts and circumstances of the case, and the law and practices governing the foreign jurisdiction, it may be in the client’s interest not to go down that road in a non-U.S. investigation. The more a country’s law and procedure mirror U.S. law and procedure, the more reason there will be for adopting the same posture in each jurisdiction � especially if the overseas authorities are sharing information with those in the United States. Where a client might consider different responses is where the law and procedure of the foreign jurisdiction diverge from those of the United States. A foreign jurisdiction may not reward cooperation or self-reporting to the same extent as U.S. authorities do, for example, or it may be that the non- U.S. authorities have a different jurisdictional reach. It may be the case that a foreign jurisdiction’s anti-bribery law does not reach as far back in time as the FCPA does, and that any conduct prior to that time would not constitute an offense. The foreign authorities may not have the same means of obtaining access to evidence as the U.S. authorities have � or their powers may be greater. It may simply be that the practices and procedures in the particular country are not well-developed and judgments cannot be made with much certainty. Any company considering asymmetrical responses needs to consider the limits of its ability to maintain control over those different responses. As the U.S. authorities become more comfortable seeking and sharing information with their counterparts in Europe and elsewhere, it will be harder for U.S. companies to maintain a noncooperative posture in foreign investigations. There are many ways for the U.S. authorities to obtain information from abroad; the procedures available under mutual legal assistance treaties and letters rogatory are only the formal ones. The Justice Department appears to be developing informal contacts with its European counterparts as well, which suggests the possibility of information exchange through less procedure-bound channels. All of these things reduce a company’s ability to compartmentalize separate investigations. Another consideration is how the U.S. authorities might view a company’s lack of cooperation with foreign investigations. The Justice Department wants to know that U.S. companies involved in FCPA investigations “get it” � that when faced with evidence of a violation, they are candid about the facts and coopoerate fully with the government. If a company maintains a defense-minded posture with foreign authorities, the U.S. government could view that as a lack of cooperation and as a failure to “get it.” Of course, the risks presented by sharing facts and theories with a non-U.S. investigation could outweigh the government’s displeasure about the level of cooperation. Cross-pollination is another significant issue. There is always the possibility that differences in jurisdictional reach or substantive law could push a foreign investigation into areas that were not the focus of the investigation in the United States. In a worst-case scenario, this could result in the discovery of evidence that would not otherwise come to light or that could ultimately broaden the focus of the U.S. investigators. While it may not be possible to avoid this scenario, counsel must at least anticipate such issues and become aware of them before the government does. What counsel should do There are several steps U.S. companies can take to address the issues raised in multijurisdictional investigations. First, all FCPA-related investigations should be coordinated through the same counsel. A company should not try to compartmentalize related investigations just because they happen to occur on opposite sides of an ocean. Although a client may ultimately decide that different responses are called for in different jurisdictions, those responses still should be centrally coordinated � preferably through U.S. counsel, because U.S. investigations are likely to present the greatest risks. The U.S. legal team needs to stay informed in real time about developments abroad. There are simply too many ways for the U.S. authorities to learn about what is occurring in other jurisdictions, and it is important for U.S. counsel to stay a step ahead of the Justice Department � if only to gain increased cooperation credit for the client. One of the important coordination decisions to be made early on in the process is whether to maintain the same posture regarding cooperation and self-reporting in the various jurisdictions. Other issues include decisions about how to respond to requests for documents and employee testimony. Should the company produce documents maintained in countries other than the one conducting the investigation? Does the client have a right to challenge the scope of those requests? Similar questions will have to be asked about making employees available for interviews, especially if those employees are not nationals or residents of the foreign jurisdiction. Second, counsel needs to consider whether other non-U.S. companies are involved in the foreign investigation and what that could mean. Is it possible under foreign law or practice to coordinate with those companies? Would that be consistent with the company’s cooperation with the U.S. authorities? Even if the U.S. authorities believe that joint defense arrangements are inconsistent with cooperation, will it be possible to persuade them to relax that stricture if the client can persuade the non-U.S. company to cooperate in the United States? If the decision is to work with the other companies, counsel should make sure that any information-sharing goes both ways, and be alert to the possibility that any coordination with other companies could violate the foreign jurisdiction’s laws or practices regarding obstruction. Counsel should also consider the ways in which those non-U.S. companies may be able to put the client at risk � through sharing documents with the authorities or making witnesses available. Lawyering up on both fronts Third, counsel should find experienced and knowledgeable local counsel and work closely with those lawyers � both in the initial strategy calls discussed above, and as the investigations unfold. U.S. counsel needs to stay fully apprised of any developments abroad, and there is no better way than to have lawyers in country who are able to interpret those developments in the context of foreign law. Counsel should think carefully about what information or documents to give to local counsel, however. In other jurisdictions, the attorney-client privilege may not be as strong as it is here, and governmental investigators in the foreign jurisdiction may be able to obtain access to the files of local lawyers. It may also be the case that there are foreign legal restrictions on sharing information received from the non-U.S. lawyers. Only time will tell how the increase in multijurisdictional investigations will ultimately change FCPA practice in the United States, but all indicators are that it will. The more comfortable the Justice Department becomes in working with its counterparts abroad, the more such cooperation is likely to result in multilateral efforts. Nations across the spectrum are now conducting their own bribery investigations. See Remarks of Assistant Attorney General Alice S. Fisher at the ABA National Institute on the Foreign Corrupt Practices Act, Oct. 16, 2006, at 2. Lawyers in the United States would do well to be prepared when more than one country comes knocking at the door.

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