Complying with the FCPA: Mergers, Acquisitions and Investment Transactions (Part Five of Five)

In light of the significant FCPA risk posed by cross-border transactions, the Anti-Corruption Report is serializing (in five parts) a chapter from a recently published treatise, The Foreign Corrupt Practices Act: Compliance, Investigations and Enforcement.  The authors of the treatise are Martin Weinstein, Robert Meyer and Jeffrey Clark, all partners at Willkie, Farr & Gallagher LLP, and highly-regarded FCPA practitioners.  This part of the series discusses: the FCPA risks faced by minority interest holders, and additional compliance measures that may be needed when an individual investor or one or more employees or representatives of a private equity firm serve on the board of directors of an investment or portfolio company.  The first part of the series provided an overview of the corruption liability inherent in M&A and investment transactions and provided insight on mitigation of corruption risk before transactions occur, focusing on successor liability, ratification, acts in furtherance of corruption and investment valuation.  The second installment in the series analyzed post-transaction risk, including the concept of willful blindness and the application of the FCPA’s accounting provisions to mergers and acquisitions.  The third installment in the series provided guidance on the due diligence process, including the initial risk assessment, determining the scope of the review, coordinating the work of the review team and investigating red flags.  It also provided advice on steps to take if a compliance issue is discovered and contractual safeguards to include in deal documents to minimize corruption risk.  The fourth part of the series addressed corruption risk in non-U.S. investments, including steps to take during pre-investment due diligence, contractual safeguards to mitigate risk and post-investment responsibilities.

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