Miller & Chevalier is recognized as having one of the country’s preeminent Foreign Corrupt Practices Act (FCPA) and anti-corruption practices.  The group has advised and assisted dozens of corporations with their FCPA issues and compliance programs.  Although this practice dates back over 20 years, in the past three years alone, Miller & Chevalier lawyers made more than 50 visits to 25 different countries on five continents, including China, Russia, and several countries in Africa, Latin America, the Middle East and South East Asia, in connection with FCPA investigations and compliance assessments.  In that same time period, Miller & Chevalier lawyers have helped design more than 25 corporate compliance programs and counseled dozens of corporations on hundreds of issues arising around the globe. 

Our FCPA work has included defending companies in enforcement actions by the Department of Justice and the SEC, formal legal opinions, internal investigations and FCPA due diligence, screening and negotiating with foreign partners, and the Justice Department opinion procedure.  We have experience with foreign agents, whistleblowers, government procurement, commercial litigation that raised improper payments issues, and negotiations with U.S. and foreign enforcement officials.  We also advise clients regarding issues arising under the FCPA’s accounting and internal control requirements, an area that has seen a substantial increase in enforcement actions during the last two years.  Finally, we also assist clients with issues arising under related regulatory regimes, such as money laundering rules and restrictions enacted by the USA Patriot Act and other anti-terrorism legislation.

Global Compliance and Internal Investigations

The depth of the firm’s substantive expertise in counseling and representing clients in connection with regulatory regimes affecting international businesses is an important asset in designing compliance programs and providing compliance advice in those areas.  This expertise is enhanced by experience gained in leadership positions in various bar and non-governmental organizations, from the insights of our members who have served in high-level positions in the U.S. government agencies enforcing these laws, and from having worked with clients in a wide variety of industries, and the various risk profiles they reflect.   In the FCPA area, we have also served in the role of government-approved Independent Compliance Monitor and have assisted clients in selecting and working with Monitors, whose responsibilities are to evaluate and recommend enhancements to the FCPA compliance programs of the companies that retain them.

In addition to having conducted numerous internal investigations for clients --either at their own initiative or in the context of a government investigation or inquiry -- we also have conducted various types of compliance audits and reviews designed to test compliance program effectiveness.   Similarly, we have conducted pre-merger or pre-acquisition FCPA due diligence reviews, which are designed to test the compliance of a company to be acquired and prepare for its integration into the compliance program of the acquiring company.  For each of these types of investigations or reviews, we have the advantage being able to combine criminal and civil investigative experience with substantive regulatory expertise, and to do so on short notice when circumstances so require.

Counseling

Every lawyer engaged in this practice is experienced in dealing with practical and legal problems arising in an endless variety of cultures, legal systems, and business settings.   In seeking to reduce legal and business risks, often on an urgent basis, firm lawyers are able to draw on an experience base developed since the advent of the FCPA through relationships with scores of clients operating in a range of industries around the world.   In dealing with client issues involving foreign agents and business partners, whistleblowers, procurement and export licensing officials, litigants, and enforcement officials, we seek to combine substantive expertise, business knowledge, and creative problem-solving.

Enforcement Actions

Our extensive dealings with enforcement authorities have occurred in the context of both voluntary disclosures and government enforcement actions, as well as informally.    We have represented clients -- U.S. corporations, foreign companies, and individuals -- in investigations by the Securities and Exchange Commission, the Department of Justice, U.S. Attorneys offices, international financial institutions, and grand juries.  We are one of three preferred providers assisting the World Bank in its investigations of corruption, fraud, and collusion. 

Additionally, our services include the complete range of remedies offered by:

• Formal Opinions.   Clients regularly request formal legal opinions from Miller & Chevalier on issues of first impression, conflicts with stated government enforcement policy, close questions of law, or transactional disputes.  An alternative source of guidance with which we are quite familiar is the ever-available, but infrequently-used formal Justice Department Opinion process.  In a number of situations we have also supervised the development of legal opinions on foreign law, sometimes in multiple foreign jurisdictions, and where appropriate, we have also obtained opinions from anti-corruption NGOs or officials of multilateral organizations.    
• Litigation.   Although litigation of FCPA issues has been uncommon historically, we have represented clients in litigation in the United States and in international arbitration that presented FCPA or corruption issues.  Such issues have included the legal relevance of the public policy embodied in the FCPA, potential FCPA liability as an affirmative defense to breach of contract, and the effect of FCPA issues in contractual disputes with terminated consultants or third parties.  We have also designed a fast-track dispute settlement for contractual claims in a context of FCPA red flags and have developed expert witness testimony for use at trial.
• Related Laws.   Increasingly, effective FCPA advice involves analysis of the local law of one or more foreign countries and the expanding complex of international conventions.  Corruption issues also not infrequently present issues under related regulatory regimes, such as anti-money laundering requirements, financial restrictions enacted by the USA PATRIOT Act, Sarbanes-Oxley obligations, or anti-terrorism legislation.
• Policy Development.   In connection with proposed amendments to the FCPA, the drafting of international conventions, the OECD monitoring process, and the policy initiatives of organizations such as Transparency International, we have been called upon to provide informal advice to policy makers and expert testimony to Congress and the OECD.  One of our members had related government responsibilities at the time the FCPA was enacted by Congress.   One member is part of the Anti-Corruption Task Force of the International Law Section of the ABA.  Another member chaired the American Bar Association’s 2007 Rule of Law Anti-Corruption Task Force.  And two are the chair and secretary of the International Bar Association’s Anti-Corruption Committee that is providing comments on the OECD Anti-Corruption Convention.

Representative FCPA Engagements

• We served as the Independent Compliance Consultant in the Titan Corporation case, one of the largest FCPA enforcement actions to date.  Our mandate was to review and evaluate Titan’s FCPA compliance program, make recommendations for enhancing the company’s compliance program in light of past violations, current risk profiles, and compliance best practices, and submit a comprehensive report to both the company and the Securities and Exchange Commission (“SEC”).
• We regularly advise the World Bank’s Department of Institutional Integrity (“INT”) in its efforts to investigate fraud and corruption in World Bank projects. Specifically, we assisted in the preparation of the Bank’s 2006-2007 Detailed Implementation Review of the India Health Sector, a comprehensive (600 page) report identifying “significant indicators” of corruption, substandard project results, and “failures” of Bank controls in five health projects in India that involved more than $500 million in Bank funds.   We also regularly assist INT in the preparation of sanctions proceedings for staff misconduct and consultant/contractor violations of the Bank’s anti-fraud and corruption policies.
• We represented a client that, faced with a voluntary disclosure following an internal investigation the company asked us to undertake, developed a comprehensive new FCPA compliance program to address the weaknesses in its global compliance program that had led to the violations disclosed.   As a result of its voluntary disclosure, the company was required to retain an Independent Compliance Monitor.   We participated in the selection of the monitor and served as the company’s primary interface with the monitor.   Subsequent activities included pre-acquisition, on-the-ground due diligence of a company with operations in Asia, southern Africa, the Middle East, and South America.
• Following a request by a client for us to evaluate and/or investigate approximately 150 possible FCPA violations, we proposed a plan of action, which the company provided to the SEC, for investigating a selected number of these instances and for dealing with the remainder on a systemic basis through enhancements to the company’s FCPA compliance program.  This engagement has required the presence of M&C lawyers in approximately a dozen different countries, including countries in Europe, Africa, Central Asia, and the Far East.
• We have conducted an internal investigation of a client’s operations in Nigeria and other locations in response to an inquiry from the U.S. Department of Justice (DOJ) and SEC.  The investigation involved sending teams to Nigeria and other locations to collect documents and electronic data and interview employees.  M&C presented findings to DOJ and SEC and will assist the company in resolving issues with the agencies.
• We performed a comprehensive FCPA compliance program review for a company subject to an SEC investigation by virtue of its acquisition of a company that had operations in a “red flag country.”  Our client’s compliance program and compliance ethic were the basis of a presentation we and the client made to enforcement officials to urge that our client be dropped from the government’s ongoing investigation.  Our client has since received no further investigative document requests or subpoenas. We continue to conduct an annual review of the company’s FCPA compliance program.
• Conducting intensive reviews and compliance audits of company operations in India and China as part of a global compliance assessment program being implemented by the company.
• We have conducted FCPA training for dozens of clients.  This has included training for Audit Committee or Board members, senior management, legal departments, compliance personnel, financial auditors, other “gatekeepers,” sales personnel, third parties, government officials, and various combinations of the above.  This has most commonly been live training, but has also included global training that is Web-based, by video conference, and by conference call.  We have a host of training materials, including materials developed primarily for foreign nationals for whom English is a second language, a wide variety of written materials and handouts, and a video training program entitled “Comply but Compete” that we produced for clients.
• An increasingly important aspect of our practice involves coordination of the FCPA and relevant local anti-corruption laws, to ensure that risks in both areas are sufficiently addressed.  We have worked with a network of local firms in certain key jurisdictions on addressing the balance between FCPA and local law compliance, as well as advice on relevant business culture.