Resolving corruption problems found during international mergers and acquisitions should be more certain in the New Year. Potential problems under the Foreign Corrupt Practices Act (FCPA) can be handled in light of guidance provided by the Department of Justice (the DOJ).
Deputy Assistant Attorney General Matthew S. Miner of the Criminal Division announced that the DOJ will apply its FCPA corporate enforcement policy to successor companies that discover corruption issues before, during, and after the merger and acquisition process. Miner stated that “while [the DOJ] has made great strides . . . relating to the Department’s approach to corporate enforcement, and the FCPA in particular, one area where [the DOJ] would like to do better is with regard to mergers and acquisitions.” This announcement is another in a string of policy changes pertaining to corporate enforcement by the DOJ. Miner hopes that applying the FCPA to mergers and acquisitions will “foster a climate in which companies are fairly and predictably treated when they report misconduct . . . to increase self-reporting and individual accountability.”
Prior to Miner’s news, the resource guide for the FCPA and corporate enforcement provided little assistance for how companies should proceed if they uncovered misconduct by a business they were in the process of acquiring or had already acquired. Additionally, the previous guidance noted merely that the DOJ had only taken action against successor companies in limited circumstances. Therefore, Miner’s announcement sheds light on an otherwise dark area pertaining to the disclosure of FCPA violations after an acquisition.
Disclose, Remediate, Cooperate
While there is great emphasis placed on reporting corrupt behavior unearthed before an acquisition or during due diligence, Miner noted that the DOJ recognizes that in some instances the acquiring company does not have complete access to a target company’s data and records. Thus, the DOJ will still reward disclosures of wrongdoing that are made subsequent to the acquisition. The DOJ wants company advisors and management to feel comfortable disclosing misconduct whenever it is discovered. Additionally, in order to incentivize companies to willingly disclose, Miner noted that “the DOJ . . . will give meaningful credit to companies who undertake these actions, and, in appropriate circumstances, DOJ . . . may consequently decline to bring enforcement actions.” Companies that adhere to the DOJ’s tried and true trio of activities—promptly report misconduct, fully cooperate with the DOJ, and enact and enforce remedial measures—will be “presumed eligible for a declination of prosecution.” While a company may be eligible for a declination of prosecution, any gains from illicit conduct must be forfeited.
Liability for Individuals
While the DOJ will look favorably upon companies that disclose misconduct even after an acquisition, companies should be aware that past wrongdoers will not be off the hook for corrupt behavior. The DOJ will continue to focus on individual accountability and prosecute those responsible for concealment of past wrongdoing.
Application of the FCPA to successor companies must be considered during mergers and acquisitions. With the announcement of the DOJ’s policy for handling disclosure of misconduct found after an acquisition, companies have a roadmap for disclosing any problems despite due diligence and self-reporting any misconduct.