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Anti-Corruption & Foreign Corrupt Practices Act (FCPA)

With over 30 years of active practice in the area of anti-corruption, Shearman & Sterling’s experience is broad and deep. In 1976, pursuant to a consent decree, the SEC appointed our chief of litigation as Special Counsel to investigate and report on Lockheed Aircraft Corporation’s foreign marketing practices. Since that engagement, Shearman & Sterling has been involved with many of the largest, most complex, and far-reaching anti-corruption cases subject to the oversight of the DOJ, SEC and international governmental authorities.

Our depth of experience enables us to provide a wide range of anti-corruption services to clients internationally, including:

  • Conducting compliance reviews and internal investigations
  • Representing corporate and individual interests in government investigations
  • Developing and implementing anti-corruption compliance programs
  • Monitoring entities’ compliance programs pursuant to agreements entered into with the government

With the intense focus on abating corruption worldwide only increasing—and countries pushing the limits of their laws’ jurisdictional reach and actively assisting with one another’s prosecutions—Shearman & Sterling’s experience allows us to provide comprehensive counsel to companies and executives as they face the challenges of anti-corruption compliance throughout the world.

An Integrated, Global Approach

Shearman & Sterling’s multinational Anti-Corruption & Foreign Corrupt Practices Act (FCPA) Group responds promptly, effectively and efficiently to clients’ multi-jurisdictional needs. Our Anti-Corruption practice draws on attorneys, many of whom are former government prosecutors and regulators, and resources located in our offices around the world. For instance, in two recent cases for European clients, Shearman & Sterling conducted corruption investigations that reached across Europe, Asia, Africa, the Middle East, and Central and South America. Our lawyers from Washington, DC, New York, San Francisco, London, Germany, Italy and China participated in the investigations, and further relied on staff in local offices for support.

Some of our recent representations involving global compliance issues include:

  • Norsk Hydro in connection with an investigation arising out of the merger of its oil and gas activities with Statoil Hydro
  • Nokia Oy in a multi-jurisdictional compliance review involving Siemens AG, Nokia’s joint venture partner in Nokia Siemens Networks
  • Volvo Group in SEC and DOJ proceedings arising from the “Oil for Food” investigation
  • ABB Ltd. and its upstream oil and gas subsidiaries in SEC and U.S. criminal investigations in connection with the subsidiaries’ marketing practices in 103 countries
  • Various parties in the SEC and DOJ investigations of Titan Corporation, Daimler AG, the Bonny Island Nigeria matter, Faro Technologies, Inc., Oil States International, Inc. and a number of confidential engagements

Compliance Programs and M&A Due Diligence

In 1981, on behalf of the Bechtel Corporation, we obtained the Department of Justice’s Foreign Corrupt Practices Act (FCPA) review release 81-1, which first established procedures for due diligence in retaining third-party representatives and agents. This so-called “Bechtel Procedures Release” has evolved over the years to the current learning on effective compliance programs. Our practice in the area of compliance has evolved accordingly.

Our in-depth knowledge of the actual facts relating to the proceedings mentioned above, and others, provides an unparalleled perspective from which to interpret the publicly available compliance standards which government procurement agencies, international financial institutions, and international business partners, as well, of course, as US and non-US law enforcement and market regulators, are increasingly requiring companies to meet. This wealth of experience enables us to help our clients develop practical, cost-effective, and risk-based programs to fulfill their compliance obligations. This advice takes the form of prospectively aiding clients in the design, improvement, and implementation of effective anti-corruption programs, providing training and updates on anti-corruption enforcement trends, and advising on third party due diligence.

In recognition of Shearman & Sterling’s experience in effective Foreign Corrupt Practices Act (FCPA) compliance programs, the US government has appointed our partners Independent Monitors in two government actions—Baker Hughes and York International—pursuant to DOJ deferred prosecution agreements and SEC consent orders mandating reviews of each company’s compliance programs.

In addition to the many clients we represent directly on Foreign Corrupt Practices Act (FCPA) matters, our Anti-Corruption group is an integral participant in due diligence reviews for the firm’s extensive M&A and Capital Markets practices. Our lawyers regularly advise on risk-based due diligence and assist in negotiating contractual terms to protect our clients from the risks of successor liability and tainted assets. Services in this area may range, depending on the risks and circumstances, from data room reviews to interviews of foreign agents to focused inquiries concerning discrete allegations to full-blown global compliance reviews.

Some of our recent representative engagements include:

  • Providing anti-corruption training for the Norwegian oil company, Statoil and the Crown Prince’s Court for the Emirate of Abu Dhabi. We have provided similar training for other clients in a variety of locations, including India, Brazil, Hong Kong, Italy and the Philippines, in addition to many US locations.
  • Developing and implementing, including the secondment of a partner as the Corporate Compliance Officer, Nokia Siemens Networks’ global anti-corruption compliance program.
  • Developing on behalf of a fast-growing Middle East-based company, PWC Logistics, a comprehensive compliance program including anti-corruption matters.
  • Conducting a targeted compliance review of a subsidiary of a large multinational defense and logistics company.

Foreign Corrupt Practices Act (FCPA) Database

We maintain a comprehensive database of enforcement proceedings under the FCPA’s anti-bribery provisions, and periodically publish a digest of that information. This unique resource provides us unparalleled knowledge of the actual enforcement activity under the Foreign Corrupt Practices Act (FCPA).

The subjects covered in the digest are:

  • Recent Trends and Patterns in Foreign Corrupt Practices Act (FCPA) Enforcement
  • Foreign Bribery Criminal Prosecutions Under the Foreign Corrupt Practices Act (FCPA)
  • Foreign Bribery Civil Actions Instituted by the Department of Justice Under the Foreign Corrupt Practices Act (FCPA)
  • SEC Actions Relating to Foreign Bribery
  • Department of Justice Foreign Corrupt Practices Act (FCPA) Opinion Procedure Releases
  • Ongoing Investigations Under the Foreign Corrupt Practices Act (FCPA)
  • Pre-FCPA Prosecutions

The US government recognized the unique value of this digest by providing it to the OECD Phase II evaluation team which was reviewing the United States’ compliance with the OECD Treaty. The OECD evaluation team in turn used our digest for an Annex to its report on the United States. Shearman & Sterling's FCPA Digest is regularly cited in professional journals and public media and is a valuable resource to our clients and the general public.

FCPA InsightsUrofsky Interviewed by FCPA Compliance & Ethics Podcast on 2017 FCPA Digest

Philip Urofsky, partner in the firm’s Litigation Group, was interviewed by the FCPA Compliance & Ethics blog on the 2017 FCPA Digest -- Shearman & Sterling’s annual report and insightful analysis of recent enforcement trends and patterns in the US, the UK and elsewhere, with helpful guidance on emerging best practices in FCPA and global anti-corruption compliance programs. 

Urofsky discusses how recent cases may reflect new expansions of regulators’ views as to the scope of the term “anything of value” in FCPA bribery cases; the SEC’s novel theory on its jurisdiction to enforce the FCPA; and his thoughts on the Pilot Program and whether the Embraer and Odebrecht cases portend greater global anti-corruption enforcement. Listen to podcast here >

For a more detailed look into FCPA-related developments, read the Recent Trends and Patterns in FCPA Enforcement Report and the 2017 FCPA Digest.  Read more >

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