The more than 50 FBI agents who investigate cases of foreign corruption involving companies with U.S. ties have increasingly built partnerships with their foreign counterparts, leading to more shared global investigations.
FBI Supervisory Special Agent Leslie Backschies spoke to dozens of lawyers about enforcement of the Foreign Corrupt Practices Act at the fifth annual ALM-Akerman U.S. Latin America Legal Summit in Miami on Friday. Jacqueline M. Arango, a partner and chair of the white-collar crime and government investigations practice at Akerman, interviewed Backschies before an audience at the conference.
Increased global enforcement has led to more and increasingly complex investigations. It also has led to greater awareness on the part of companies that they need to establish anti-bribery and compliance programs. This has translated into increased work at law firms related to the FCPA and to related money laundering.
Arango said that six years ago a large client asked her to discuss FCPA with his company’s board of directors, only because he had happened to hear about it at a conference.
“I got that work because of awareness,” Arango said. “I definitely see much more awareness, and that brings business.”
She said about a quarter of her practice now is dedicated to FCPA investigations and compliance. She is currently handling investigations in Brazil, Peru, Ecuador and Djibouti, Africa.
FCPA compliance programs are based on the concept that voluntarily investigating and submitting discovered information to federal investigators about a bribery abroad will allow companies to receive leniency in fines and in some cases avoid negative publicity. Agents speak at panels emphasizing that companies that cooperate fully will get better treatment.
The FCPA actually turns 40 years old this month, but resources for its enforcement and creating awareness about voluntary disclosure have grown over the last few years, as has the concept that bribery and corruption contribute to fueling radical movements abroad.
Two and a half years ago, the FBI formed an international corruption squad to investigate companies and business people for bribery that is unlawful under the act.
“We have to turn down cases,” Backschies said. “My agents are completely overworked. They travel all over the world. They are in total dedication to this work.”
Not only has that enforcement prompted companies to hire lawyers to create compliance programs to guide internal investigations, but legal hiring within those investigations has grown as well.
When the Department of Justice announced that to get leniency companies would have to turn over their internal investigations and emphasized naming those responsible for possible criminal charges, corporate boards took notice of what it meant for them individually.
“How do you get your executives or high-level managers to cooperate in an internal investigation if they know that the company generally can’t get leniency credit unless the company turns over the results of the investigation, as well as the names of high ranking individuals who may have been involved or had knowledge of the wrongdoing?” asked Marcia Narine Weldon, a professor of legal writing and compliance at the University of Miami School of Law, who attended the discussion.
“They’re not going to want to talk to me,” Arango agreed. “That’s going to be difficult for my internal investigation.”
But the investigation can continue, she said.
Executives often speak with a lawyer before participating in the investigation, even if they didn’t do anything wrong, Narine Weldon said. And sometimes the company even pays the executive’s attorney fees.