Foreign Corrupt Practices Act and Anti-Corruption LITIGATION/CONTROVERSY

WilmerHale has an award-winning team that has been involved in FCPA and related anti-corruption issues since the enactment of the statute and the government investigations that triggered its passage.


With more than 40 experienced anti-corruption lawyers, WilmerHale’s Foreign Corrupt Practices Act (FCPA) and Anti-Corruption Group offers extensive knowledge in all aspects of the field—government and internal investigations, risk assessments, M&A and strategic transactions, and ad hoc counseling. Our practice and approach to client service repeatedly earns recognition—most recently in April 2013 as the “Practice Group of the Year” by Main Justice and in June 2013 as an “FCPA Powerhouse” by Law360.

We have been involved in some of the most notable public cases, as well as numerous non-public cases and key developments related to FCPA and anti-corruption issues. From our offices in the United States, Europe and Asia, we regularly counsel more than 65 public and other companies and individuals domestically and abroad. We currently have approximately 25 FCPA matters pending with the Department of Justice (DOJ), Securities and Exchange Commission (SEC) or World Bank. Our lawyers regularly speak and write on anti-corruption matters and also have authored the leading treatise in the field. Complying with the Foreign Corrupt Practices Act is now in its 8th edition.

Contacts

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Parker, Kimberly A.

Kimberly A. Parker

Co-Chair, Pro Bono and Community Service Committee

+1 202 663 6987 (t)

kimberly.parker@wilmerhale.com

Cahn_Mark

Mark D. Cahn

Partner

+1 202 663 6349 (t)

mark.cahn@wilmerhale.com

Green, Karen F.

Karen F. Green

Partner

+1 617 526 6207 (t)

karen.green@wilmerhale.com

Holtmeier, Jay

Jay Holtmeier

Partner

+1 212 295 6413 (t)

jay.holtmeier@wilmerhale.com

Johnson_Boyd.jpg

Boyd M. Johnson III

Partner

+1 212 230 8862 (t)

boyd.johnson@wilmerhale.com

Lee, Randall R.

Randall R. Lee

Partner

+1 213 443 5301 (t)

randall.lee@wilmerhale.com

Mugmon, Michael

Michael Mugmon

Partner

+1 650 858 6103 (t)

michael.mugmon@wilmerhale.com

Experience

Our work in the FCPA arena spans a vast range of industries, including financial and professional services; energy, oil and gas; pharmaceutical, medical devices and health care; media; technology; defense and aerospace; and manufacturing. These are some examples, among many others, of recent significant FCPA matters we have handled or are handling:

  • We represented a US aircraft maintenance provider and its foreign parent in their 2012 settlements with the DOJ of FCPA issues relating to payments to government officials in Mexico and elsewhere. 
  • We represented Armor Holdings, now a subsidiary of BAE Systems, Inc., in its July 2011 FCPA settlement with the DOJ and SEC relating to the actions of a former employee of the company who later went on to become the informant in the DOJ’s 22-defendant FCPA sting case.
  • We represent several financial institutions in connection with the SEC’s “sweep” relating to interactions by financial institutions with sovereign wealth funds, and a number of oil companies in connection with the SEC’s “sweep” relating to business dealings in Libya.
  • We represented the former chief executive officer of a public company in an investigation by the DOJ and SEC of violations of the FCPA and US sanctions laws.
  • We represented oil driller Helmerich & Payne in its July 2009 settlement with the DOJ and the SEC of FCPA matters involving payments to customs officials in Argentina and Venezuela.
  • We currently are, and have been in the past, involved in dozens of internal investigations and investigations conducted by the DOJ, SEC and other authorities. Some of these matters involve voluntary disclosures to the government, while others do not. We have obtained several declinations of prosecution from the enforcement authorities for our clients.
  • We have recently advised—and continue to advise—companies in connection with mergers and acquisitions and other strategic transactions, including the conduct and evaluation of pre-transaction due diligence and the implementation of post-transaction compliance programs for acquired and affiliated entities.
  • We have assisted clients in successfully obtaining DOJ clearance under the FCPA’s advisory opinion program.
  • We have assisted dozens of companies in conducting anti-corruption risk assessments and other compliance reviews and audits and have helped to design and implement dozens of compliance programs.

Recognition

WilmerHale’s FCPA and anti-corruption practice, as well as its individual attorneys, are routinely recognized as leaders in the field.

  • WilmerHale was named one of 10 “FCPA Powerhouse” firms nationwide by Law360 in 2013.
  • Main Justice presented WilmerHale with its “Practice Group of the Year” award, its most prestigious honor, identifying the firm’s FCPA and Anti-Corruption Practice as the best in 2012. In addition, Main Justice also honored Senior Counsel Roger Witten with its “Foreign Corrupt Practices Act Master” award.
  • Senior Counsel Roger Witten and Partner Kimberly Parker were individually recognized as “FCPA Experts” in the 2013 edition of Chambers USA: America’s Leading Lawyers in Business.
  • Senior Counsel Roger Witten has received numerous individual accolades, including being named one of the “Best FCPA Lawyers Outside the Beltway” by Main Justice; recognized as an FCPA expert in the 2012 and 2013 editions of Chambers Global, and continuously selected as a “New York Super Lawyer” by Super Lawyers.
  • Partner Jay Holtmeier and Senior Counsel Roger Witten were individually recognized among the 2013 Best Lawyers in America for their work in the criminal defense: white-collar field.
  • Partner Kimberly Parker was named one of the 45 leading women lawyers under 45 years of age in the January 2011 issue of The American Lawyer.

Treatise

In connection with their ongoing work at the forefront of issues relating to the US Foreign Corrupt Practices Act (FCPA) and other anti-corruption laws, WilmerHale Senior Counsel Roger Witten and Partners Kimberly Parker and Jay Holtmeier recently published the 8th edition of Complying with the Foreign Corrupt Practices Act. The treatise serves as an up-to-date resource for those seeking to navigate their way through the requirements of the FCPA and other similar laws in an environment of active enforcement by the US Department of Justice (DOJ) and Securities and Exchange Commission (SEC), as well as other law enforcement authorities around the world. Among other things, the recent edition focuses on guidance published by the DOJ and SEC in November 2012.

Lawyers in the firm began producing the treatise long before the FCPA became well known, and the treatise has become even more useful as enforcement efforts (and corresponding compliance efforts) have skyrocketed in the last decade. The treatise serves as a guide to understanding the basics of the FCPA, many of the nuances in its interpretation and enforcement (particularly when decided cases by US courts are still rare), and fast-changing developments in the law. WilmerHale Partner Erin Sloane, Special Counsel Lillian Potter and Counsel Thomas Koffer and Saniya O’Brien, along with numerous others, also contributed to the new edition.

Complying with the Foreign Corrupt Practices Act is comprised of 13 substantive chapters and contains resource materials, statutes, advisory opinions, treaties and model forms for use in internal compliance programs, along with additional resources. Among the topics covered are the FCPA’s historical background; its anti-bribery and accounting provisions; issues relating to risks associated with the use of agents, joint ventures and other third parties; issues in mergers and acquisitions; hypothetical situations illustrating frequent real-world FCPA issues and strategies for responding to them; developments and trends in the enforcement arena; and key elements of an effective anti-corruption compliance program.

Complying with the Foreign Corrupt Practices Act is published by Matthew Bender & Company, a member of the LexisNexis Group.

Publications & News

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July 2, 2014

DC Circuit Issues Major Ruling Affirming Broad Applicability of Attorney-Client Privilege to Corporate Internal Investigations

On June 27, 2014, the US Court of Appeals for the DC Circuit issued a major decision clarifying the scope of the attorney-client privilege as applied to corporate internal investigations.

May 23, 2014

Chambers USA Ranks Top WilmerHale Lawyers and Practices in 2014 Edition

We are pleased to announce the names of the individuals and practice areas that are ranked in the 2014 edition of Chambers USA: America's Leading Lawyers for Business.

May 22, 2014

Eleventh Circuit Adopts Broad Definition of Government "Instrumentality" Under FCPA

On May 16, 2014, the Eleventh Circuit, in the first appellate decision on the issue, affirmed a broad definition of “instrumentality” of a foreign government within the meaning of the FCPA, providing important guidance in determining who should be considered a "foreign official" under the statute.

May 20, 2014

Cross-Border Investigations and Compliance

It is often said that corporations are not criminally liable under German law. As we explain in this alert, whilst technically accurate, such a statement should be tempered by two important considerations.

May 14, 2014

FCPA Considerations in M&A Transactions

Here is an excerpt from WilmerHale's 2014 M&A Report, which was released on May 6, 2014. This excerpt summarizes the FCPA risks for purchasers and sellers in M&A transactions and suggests affirmative steps companies can take to manage those risks both pre- and post-closing.

April 1, 2014

First EU Anti-Corruption Report: What it Means for Business

EU Member States have in place most of the necessary legal instruments to prevent and fight corruption. However, the enforcement results are not always satisfactory. With its recently published first EU Anti-Corruption Report, the EU Commission provides a detailed analysis of the status of corruption for each of the 28 Member States. It specifies for each of them problems in dealing with corruption but also lists good practices which might serve as models for other Member States. Although the Report is primarily addressed to the Member States, it is also of significant relevance for business. Any company doing business in Europe is well advised to review its compliance program and policies in light of the findings and recommendations of this Report.

March 14, 2014

Chambers & Partners Recognizes WilmerHale in its 2014 Global Edition

Thirty-one WilmerHale lawyers have been named among the “World’s Leading Lawyers for Business” in the 2014 edition of Chambers Global. In addition to these individual accolades, 13 of the firm’s practice areas were also recognized.

March 11, 2014

US Supreme Court Upholds Broad Scope of Sarbanes-Oxley Act Whistleblower Protection

Last week, the US Supreme Court issued an important decision addressing whether Section 806 of the Sarbanes-Oxley Act of 2002 (SOX) (codified at 18 U.S.C. § 1514A) limits protection from retaliation to the employees of public companies, or if it also covers employees of contractors to a public company.

February 5, 2014

Global Anti-Bribery Year-in-Review: 2013 Developments and Predictions for 2014

The year 2013 witnessed several notable developments in the enforcement of the Foreign Corrupt Practices Act (FCPA). In 'Global Anti-Bribery Year-in-Review: 2013 Developments and Predictions for 2014', WilmerHale Partners Roger M. Witten, Kimberly A. Parker, Jay Holtmeier and Erin G.H. Sloane discuss notable trends and developments in 2013 corporate settlements and individual prosecutions, key FCPA legal developments, notable collateral litigation developments, and significant developments in international anti-corruption law.

January 9, 2014

China’s New Anti-Corruption Policies in the Health Care Industry

Current Developments