As the annual ABA White Collar Crime Conference wrapped up in New Orleans last Friday night, the Department of Justice released the latest updates to its FCPA Corporate Enforcement Policy. The key changes to the policy include new guidance regarding: (1) mergers and acquisitions and legacy liability as a result of misconduct prior to the acquisition; (2) DOJ’s interactions with company counsel and requests that company counsel refrain from taking investigative steps; and (3) the scope of disclosure and remediation required in order to be eligible for a declination under the policy. Although DOJ chose to release the amendments with little fanfare, corporate executives, boards of directors, special committee members and practitioners alike will feel the effect immediately.
I. MERGERS & ACQUISITIONS GUIDANCE -
It has long been known that companies that discover evidence of misconduct while conducting pre-acquisition due diligence can engage with DOJ to address potential successor liability issues. But exactly what acquiring companies could expect to receive through that process was never quite clear. The Corporate Enforcement Policy now provides explicit guidance for mergers and acquisitions...
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