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

FCPA compliance is a paramount consideration in any cross-border merger, acquisition or investment transaction.  The U.S. government has emphasized the importance of conducting due diligence and implementing compliance measures in connection with overseas corporate transactions through its enforcement actions, DOJ Opinion Procedure Releases and the recent Guidance.  In addition, the compliance practices of individual investors and private equity firms that invest funds overseas have come under scrutiny.  Pre-transaction due diligence, anti-corruption representations and warranties in agreements with counterparties and prompt implementation after closing of any necessary changes to the acquisition or investment target’s anti-corruption compliance program are key to mitigating FCPA risk.  In light of the central role of FCPA compliance in cross-border transactions, the Anti-Corruption Report is serializing (in five parts) a chapter from a recently published treatise entitled 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 members of the FCPA bar.  This first installment in the series provides an overview of the corruption liability inherent in M&A and investment transactions, drawing on the authors’ professional experience and recent enforcement actions.  This installment also addresses mitigation of corruption risk before transactions occur, focusing on successor liability, ratification, acts in furtherance of corruption and investment valuation.

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