The U.S. Department of Justice recently publicized its second Foreign Corrupt Practices Act Opinion Procedure Release of 2014. In the Release, the DOJ reiterated that an acquiring company may not inherit FCPA liability when the DOJ did not have jurisdiction over the target company's prior corrupt activities.
The DOJ has repeatedly asserted that, through principles of successor liability, an acquiring company in an M&A transaction may assume FCPA liability for the pre-acquisition bribes paid by the target to foreign government officials. Out of concern for this potential avenue of liability, a U.S.-based consumer products company recently sought guidance from the DOJ on whether it would bring an enforcement action for the pre-acquisition corrupt activities of a wholly-foreign target company. The U.S. company sought this guidance by exercising a unique statutory procedure whereby companies can request a DOJ opinion on the FCPA enforcement ramifications of proposed conduct. See 15 U.S.C. §§ 78dd-1(e), -2(f).
According to the Release, the U.S. company intends to acquire all shares of a company listed on a foreign stock exchange. The target company's operations are confined to a foreign country and reportedly lack a nexus to the U.S. During the course of pre-acquisition due diligence, the acquiring company discovered over $100,000 in potentially improper transactions, ranging from payments to foreign government officials associated with the target company's permits and licenses, to payments made to the state-controlled media to minimize negative publicity. The acquiring company also found significant recordkeeping deficiencies, and that the target company lacked an anti-corruption policy and program. The acquiring company proposed integrating the target company into its own compliance structure within a year of closing.
The DOJ stated that it would not take any enforcement action based on the target company's pre-acquisition conduct (subject to the caveats ordinarily includes in Opinion Procedure Releases). Consistent with past comments, the DOJ explained that although successor liability for FCPA violations may be conferred when integrating a target company into an acquirer's operations through a stock purchase, it does not exist where, as here, the pre-acquisition payments to foreign officials did not occur in the U.S. or involve a U.S. person or entity. In other words, the acquisition of a company does not create jurisdiction over prior corrupt activities otherwise beyond the DOJ's reach.
Companies engaged in the escalating number of international M&A transactions would be wise to employ robust pre-acquisition anti-corruption due diligence. Of course, no due diligence process can guarantee it will identify every risk. But a combination of anti-corruption representations in acquisition contracts and a tailored remediation plan will help companies minimize the risk of FCPA liability from any pre- and post-acquisition corrupt activities.
DOJ Releases Second FCPA Opinion Of 2014
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