Overview
The Foreign Corrupt Practices Act ("FCPA") imposes a variety of restrictions on U.S. citizens, companies and issuers, including their affiliates and subsidiaries, in connection with their business activities outside the United States; as well as, foreign companies and persons that may transact foreign business through U.S. territory, mail, wires and/or financial institutions. Among those restrictions, the "anti-bribery" provisions of the FCPA prohibit corruptly promising or providing, directly or indirectly, anything of value to a foreign government official in order to obtain or retain business or an improper advantage. The FCPA, along with the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ("OECD") and local law prohibitions, affect a company's government bid and tender process, the ability to engage in transactions with government officials and other categories of individuals in their private capacity, the selection and retention of consultants, agents and other third parties, and impose obligations regarding the current and future conduct of business partners.
Kirkland has extensive experience in all areas of FCPA including defense, compliance and monitoring, due diligence review, counseling and internal investigations.
Defense
Our lawyers are highly-trained advocates who represent clients at trial, as well as before the Department of Justice, and the U.S. Securities and Exchange Commission. We are a full-service firm, offering first rate criminal defense, as well as litigators concentrating in potential parallel risks such as government contracts (debarment/exclusion), securities litigation (derivative actions), and civil litigation (contract, civil RICO, etc.).
Kirkland lawyers with extensive experience in this practice area include:
- Former Acting Deputy Assistant Attorney General and Former Chief of the Fraud Section for the U.S. Department of Justice's Criminal Division, who is nationally recognized for his FCPA expertise;
- Former United States Attorney for the Southern District of New York;
- Former Assistant Director at the Securities and Exchange Commission, Division of Enforcement, who supervised the Commission's investigation into Enron Corporation; and Former Managing Vice President and Chief Counsel of Litigation for a major financial and credit services institution;
- Former Deputy Chief of the General Crimes Division of Chicago's United States Attorney's Office;
- Former Deputy Chief in the United States Attorney's Office for the Eastern District of New York; and
- Eight Former Assistant United States Attorneys.
Recent Representations
In recent years, Kirkland has been involved in numerous FCPA matters including:
- Representing ABB, one of the largest engineering companies in the world, with an annual revenue of more than $27B and operations in more than 100 countries;
- Representing Accenture, a top global management consulting, technology services and outsourcing company in connection with FCPA compliance matters;
- Representing Tyson Foods, the world's largest food processor and marketer in beef and poultry; and Chiquita, a leading international marketer and distributor of fresh and processed food products in connection with on-going FCPA compliance matters;
- Representing a global fuel specialties and additives manufacturer in connection with on-going FCPA compliance matters;
- Representing Bell South, an international telecommunications company with on-going FCPA compliance matters;
- Representing a senior executive of a major offshore drilling contractor;
- Representing a leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting with FCPA compliance and review;
- Representing a worldwide designer and manufacturer of products for the orthopedic, sports medicine, biologic, craniomaxillofacial and dental markets in connection with a seven-foreign country review;
- Representing a leading independent global PR firm related to potential FCPA violations committed by certain individuals and entities, in connection with public relations work for an organization responsible for the promotion of a foreign country's tourism;
- Representing a global PR firm in connection with the purchase of a Russian PR agency;
- Representing a top executive at one of the world's leading leaf tobacco merchants and processors;
- Representing top level executives at major U.S. defense contractors, including a Chief Executive Officer and Chairman, a Former Executive Vice President, and a Country Manager;
- Representing an Executive Vice President of a global telecommunications company;
- Representing a Japanese business executive and current Fortune 500 Company employee, in connection with the U.S. Department of Justice's marine hose and marine fender FCPA and Sherman Act investigations; and
- Representing an individual in connection with alleged FCPA and antitrust violations in the freight forwarding industry.
Compliance & Monitoring
Establishing a successful compliance program is critical to prevent FCPA violations and mitigate its potential effects. Kirkland lawyers have extensive experience in creating and designing compliance programs to reduce the risks of such violations, including policies and procedures, educational and training materials and programs, contract provisions and due diligence protocols. We implement and work with in-house counsel and compliance vendors to execute compliance policies and training programs tailored to the client's business structure and the market conditions in the client's target countries. We do this while coordinating with local counsel to incorporate the growing international reach of anti-corruption enforcement. Our practice includes former senior U.S. government officials at both the Department of Justice and the Securities and Exchange Commission, some of whom have been invited lecturers at the U.S. government's own FCPA training programs, and are fully equipped to serve as FCPA Compliance Consultants and Monitors.
Due Diligence Review
Kirkland's practice teams have plans tailored to our client's needs in order to provide fulsome and risk-focused FCPA due diligence protocols. In addition, the Firm executes work plans for reviews of third-parties, business partners and transactions. Our lawyers assist clients to identify FCPA risks associated with transaction structure, and implement precautions to support future compliance by acquisitions, business partners and affiliates.
Counseling & Internal Investigation
Our teams advise businesses regarding the scope and applicability of the FCPA, potential consequences, and risk mitigation. We also have fully staffed internal investigation teams ready to implement individually drafted investigation work plans tailored to our client's business model and potential allegations. Whether it is a purely internal investigation or a cooperative effort with U.S. enforcement authorities, our team has the experience to execute an effective and efficient investigation. With the growing globalization of enforcement, Kirkland attorneys rely on their experience in coordinating with a network of local legal advisors to comply with foreign law including Data Protection and Privacy legislation, and assist in the coordination, in the event of local law enforcement interest or voluntary disclosure.
