MoFo’s FCPA + Global Anti-Corruption Capabilities

Our clients face daily challenges in navigating the complicated anti-corruption landscape as they conduct business around the globe. Morrison & Foerster has a deep bench and global footprint that allows us to provide seamless service across continents and time zones. We assist clients with cross-border investigations and remediation, government enforcement actions, day-to-day anti-corruption counseling, global risk assessments, M&A due diligence, training and establishing, implementing, benchmarking, and testing compliance programs to minimize risk effectively and efficiently.

 

  • We have a global team, with members in our U.S. offices, our five Asia-Pacific offices and three European offices. Many of our team members focus almost exclusively on FCPA, anti-corruption and cross-border investigations.
  • We have conducted scores of investigations spanning across continents and entire companies. Just in the last year, the firm's investigations have involved India, Russia, Mexico, Brazil, Saudi Arabia, Chile, Venezuela, Mexico, Colombia, Tunisia, Algeria, China, Japan, Czech Republic, Sweden, Finland, Italy, Singapore, Malaysia, Indonesia, Thailand and several countries in Eastern Europe.

Meet Chuck Duross

Charles DurossChuck Duross has joined the firm's Litigation Department as a partner to head its global anti-corruption practice, resident in the Washington, D.C. office. He most recently served as Deputy Chief of the Fraud Section in the Criminal Division of the U.S. Department of Justice, in charge of all of the DOJ's FCPA investigations, prosecutions and resolutions in the United States. Under his leadership, the FCPA Unit resolved more than 40 corporate cases, which included about two-thirds of the top 25 biggest corporate resolutions ever, resulting in approximately $1.9 billion in monetary penalties, and secured convictions of more than two dozen business executives and money launderers.

What attracted you to Morrison & Foerster?

Morrison & Foerster is a world-class firm with a strong global presence and a robust white-collar practice with high-quality lawyers, including a deep bench of attorneys with FCPA, compliance and internal investigation expertise. The firm's attorneys have well-deserved reputations for excellence, integrity and collegiality. I was also impressed by the firm's representation of many of the world's most successful and innovative technology companies, as well as its Asia footprint. I look forward to working closely with my new colleagues to build on the firm's success in helping clients manage the risks and challenges associated with conducting business against the backdrop of an increasingly complicated and global anti-corruption enforcement landscape.

What do you consider some of the highlights of your tenure at DOJ?

My term included efforts to make FCPA enforcement more transparent and compliance with the statute more understandable to the business community. For example, working closely with my counterparts at the U.S. Securities and Exchange Commission, I was a principal author of the DOJ and SEC joint publication "A Resource Guide to the U.S. Foreign Corrupt Practices Act," which followed a series of consultations with business and compliance leaders.

The firm is well-known for its global platform, particularly its deep roots in Asia. How does your experience benefit clients in this region?

At the DOJ, I saw that a large percentage of the issues companies faced involved Asia. MoFo has five offices and more than 200 lawyers in this region. Having lawyers with anti-corruption expertise on the ground allows MoFo to meet the needs of our clients in real time and with a real understanding of the issues clients face. My experience has given me insight into not only the U.S. government enforcement mindset, but also the enforcement atmosphere abroad, including in Asia. This will enhance the firm's considerable capacity to assist global companies facing cross-border anti-corruption compliance and enforcement issues. In fact, the firm's presence and reputation in Asia (MoFo is widely recognized as the leading international firm in Japan) were key drivers in my decision to join the firm. But keep in mind, corruption risk exists everywhere. For example, Eastern Europe has also recently seen its fair share of corruption issues. MoFo's presence in Europe positions us well to handle issues throughout the region and across the globe.

Why is the firm expanding its FCPA capabilities?

The firm already has substantial FCPA and global anti-corruption capabilities. But, put simply, enforcement agencies in the United States and around the world are increasing their own resources in their efforts to aggressively investigate and prosecute foreign bribery cases, and MoFo is simply doing likewise, recognizing that concerns over corruption and bribery weigh heavily on all companies that do business globally, across regions and across industries. Adding someone like me to the team provides: useful insights into agencies' approaches to anti-corruption enforcement, deep experience in investigating international corruption cases, a network of contacts around the globe, and, maybe most importantly, comfort to board members and senior managers that want to get it right. This is true on the front end, where I understand the importance of compliance programs and due diligence to prevent and detect problems, including which programs are truly best in class, and on the back end, where a problem has been discovered and must be investigated and remediated, including potentially representation before enforcement agencies. FCPA and other anti-corruption enforcement actions can have serious impact on companies, from massive monetary penalties to disgorgement of profits, convictions to debarment and potentially severe reputational damage. As a result, companies want practical guidance as to how they can do business in a way that minimizes risks and complies with the laws, and, if a problem does arise, companies want experienced and determined counsel, who can immediately and effectively address those issues internally and, if necessary, with enforcement agencies. I think I am uniquely qualified to do so, and thus, my addition to the firm's existing resources is a force multiplier.

If you had to identify the biggest areas of anti-corruption concern for companies and their executives, what issues stand out?

I would pick two issues: the first is third parties. Companies need to know their business partners because outsourcing your business to consultants or distributors places your reputation in the hands of others while not necessarily limiting potential liability. The cases that the DOJ and SEC have resolved over the years have repeatedly used the FCPA's willful blindness standard to hold companies liable even where actual knowledge may not have existed, as the bribes were being paid by third parties on behalf of the company. The UK Bribery Act, in fact, holds companies liable for failing to prevent bribery. As such, third parties will continue to be a significant area of risk.

And the second issue is growth through acquisitions. Companies need to know what they are buying and understand the potential risks associated with such acquisitions. As an initial matter, it is simply good business in today's environment to understand, as a matter of fair market valuation, whether there are potential corruption issues and how those issues may impact the value of such an acquisition. There have been a number of cases in which the acquisition ended up becoming valueless after corruption problems were found, penalties were paid and lucrative contracts were voided because of corruption. Beyond valuation, thoughtful due diligence and planning can help structure a particular transaction in order to minimize risk and potentially avoid successor liability issues. Finally, there are important post-acquisition steps that should be taken to successfully integrate a newly acquired company into existing compliance regimes, including implementing proper procedures and adequate training, and to properly review any risk areas to discover and remediate any existing issues and prevent future ones.

 

For more information, please contact:

Charles E. Duross
Washington, D.C.
(202) 887-1500
cduross@mofo.com

Paul T. Friedman
San Francisco
(415) 268-7444
pfriedman@mofo.com

James E. Hough
Tokyo
813 3214 6752
jhough@mofo.com

Timothy W. Blakely
Hong Kong
852 2585 0870
tblakely@mofo.com

Daniel P. Levison
Singapore
+65 6922 2041
dlevison@mofo.com

Email Disclaimer

Unsolicited e-mails and information sent to Morrison & Foerster will not be considered confidential, may be disclosed to others pursuant to our Privacy Policy, may not receive a response, and do not create an attorney-client relationship with Morrison & Foerster. If you are not already a client of Morrison & Foerster, do not include any confidential information in this message. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not properly authorized to do so.

©1996-2016 Morrison & Foerster LLP. All rights reserved.