My practice is specialized in providing consulting and legal services related to the Foreign Corrupt Practices Act and international anti-corruption. Work which I do for your company can be covered by the attorney client privilege and protected from disclosure as attorney work product. This is important because you may not want data such as the contents of risk assessments, the discussions of your priorities when developing your compliance program, and the details of investigations to be subject to discovery.
Types of Services:
1. Policy Review. Review your company's current anti-corruption policies and programs and consult on improvements to ensure your program is compliant with current best practices. Rewrite your policy and programs based on your company's risk assessment, priorities and resources.
2. Dedicated Subject Matter Expert. You can use me as your company's dedicated subject matter expert for FCPA and international anti-corruption matters. Your company's anti-corruption compliance program will be stronger if it includes an experienced international lawyer with in depth FCPA expertise. Your budget may not allow you to hire a full or part time subject matter expert or to properly train one of your current team to fill that role. I can become a part of your virtual team and provide that expertise in a very cost effective manner.
3. Risk Assessment. Conduct an assessment of your company's specific risk of becoming involved in corruption in its foreign operations. Your anti-corruption compliance program should be "risk based." Many companies have never systematically examined the risk of corruption in their international operations. Management may believe they have a clean company and ethical employees. This positive bias is understandable, but can lead the organization to ignore even obvious Red Flags that corruption is occurring. Recognizing and prioritizing the risks which exist in your business is a prerequisite for determining where to spend your scarce compliance budget and use your human resources for maximum impact.
4. Program Development. Companies doing international business must have an appropriate anti-corruption compliance program in place. Above all the company needs a clearly articulated Anti-corruption Policy which all employees, managers and relevant third parties can easily understand. Underneath that Policy there will be a group of detailed Programs which are appropriate for your company's business. The Policy and Programs cover the specific actions the government would order your company to put in place if it were involved in a formal investigation. You will be much better off if you set up your Policy and Programs on your own terms in advance of trouble. The usual Programs are:
A. Training Program. Training should be tailored to the company's specific risks and can be customized for specific groups:
- Board of Directors
B. Gifts, Meals, Entertainment and Travel Approval Program. These are trip-wire Red Flags for corruption. Many companies have found themselves in trouble because of inattention to how gifts, entertainment and travel expenses were used and recorded on the company's books. Your company's records are accurate or they are not. This is the easiest place for the government to make an airtight case against your company and one of the first places they will look. It is also one of the easiest for you to keep under control.
C. Third Party Due Diligence and Monitoring Program. Third Parties representing your company in foreign business are the most significant source of FCPA liability for your company. You need to know who you are allowing to represent your company and know how they are doing it. This means exercising due diligence before you enter into a contract with any intermediary and monitoring their work during the course of the relationship. The due diligence investigations you perform have to be a real effort to collect and evaluate information on your third parties, not just an exercise to check boxes and make sure you have something to create a file. Meaningful background investigations can be done in a cost effective manner.
Due diligence is not all defensive. There is a significant business benefit to your company when you know more about the background and business reputation of the companies (and their owners) which represent your company in business in other countries. Likewise, reasonably monitoring the ongoing work of your resellers, agents another intermediaries makes good business sense and may improve your relationships with them as well as your business and profits.
D. System of Financial Controls. Your Finance team may have never considered the company's FCPA risk and have taken no steps to set up controls which would detect some of the highest risk activity. Also your Finance team may not be aware of common FCPA Red Flags or the unethical practices which frequently occur in your industry or the countries where you do business. Activities which may be FCPA violations may not be "material" and so will stay below Finance's radar. FCPA liability is not limited by materiality. The most common FCPA violation is having false or inaccurate corporate books and records. The penalties for a books and records violation are substantially higher than the penalties for bribery - and the proof is much easier. Finance needs to play a key role in your company's anti-corruption effort.
Financial Controls includes your Internal Audit team. You may have an excellent audit system, but your auditors may not understand or be looking for FCPA Red Flags. Training your auditors and building FCPA compliance elements into your existing audit process is a very cost effective way to deter and detect violations of your anti-corruption policy.
E. Company Awareness Program. The SEC and DOJ make it clear they expect companies to create "tone at the top." I can work with you to establish a corporate awareness program which your senior management can execute. Sincere and regular involvement by senior management is the single most effective element of an anti-corruption program. If active promulgation of a tone at the top does not exist in a manner that can be observed by employees and objectively measured, the rest of your program will be much more expensive and less effective.
F. Discipline Program. Discipline needs to be more than having the ability to terminate your employees and business partners. Termination is the nuclear option for employment and business relationships. Relying on termination as your only remedy can lead to unforeseen and expensive consequences. What actions short of termination are available and what will work to motivate your employees and third parties?
G. Contractual Language. Anti-corruption terms, including audit and termination provisions, need to be drafted and included in all contracts used in international business. The amount of detail varies depending on the subject matter and relationship being created. I have many years experience establishing commercial relationships around the world and can advise your team on what language is needed and will work in practice. Failure to include well considered anti-corruption provisions in your contracts can be very costly.
H. Program Testing. Periodic testing of your Anti-corruption Compliance Program is needed to ensure all elements are working as intended. Formal Program reviews need to be performed at determined intervals. Program testing can include a formal presentation and defense of your complete FCPA program by your own staff to me in the role of a DOJ prosecutor.
5. Investigations. I have experience conducting FCPA investigations in many countries. I can be engaged to work on my own or with your internal or external team to determine the scope, develop the investigation plan and conduct an investigation of suspicious activity in a cost effective manner. Many times you will have reports of Red Flags which you do not have the internal competence to investigate. Also you may not want your "business partner" in-house attorneys investigating their clients. You will want investigations to be covered by the attorney client privilege. Keep in mind that the government will have a difficult time believing that an investigation done solely by company employees was objective. Very often there are explanations for the Red Flags which do not involve corruption or violations of the law. You need to find out quickly and confidentially whether there is any fire to go with the smoke. A large law firm may come at this type of investigation in a very heavy and expensive way.
I can also be engaged to manage an investigation which will be done by your outside law firm or to be a participant in an investigation being conducted by your outside law firm and work with them. This can result in very substantial savings for your company.
6. Training I have done extensive in-person FCPA training for a large variety of groups. In February 2011, I prepared and presented a 2 day, nearly 14 hour, FCPA Compliance Intensive Course to a group of corporate compliance attorneys. I can prepare specific training for clients and revise existing training to make it more effective. I also can develop and present effective FCPA compliace "road shows" for clients who need in person training for their foreign operations. Finally I can train your trainers so they are well versed in the subject matter.
Fee and Retainer Agreements. My work will generally be done on an hourly fee basis. Alternative fee arrangements and monthly programs can be discussed.
FCPA Compliance Program Fixed Price Services. Various fixed price services with specific deliverables can be arranged to meet your company's needs. Sample fixed price services available on request.
Team Approach. I am a solo practitioner, but I have relationships with other FCPA experts, investigators and service providers around the USA and the world. A team can be structured and assembled to meet your needs.