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The DOJ and Refinements to FCPA Compliance Involving Mergers and Acquisitions

The DOJ and Refinements to FCPA Compliance Involving Mergers and Acquisitions

AUGUST 3, 2012

The FCPA Compliance & Ethics Blog has an article about how the Department of Justice is listening to the concerns of companies and is continually refining its guidelines related to the FCPA in response to these concerns.

The article highlights the case of Halliburton in its 2008 acquisition bid for Expro, a company in the United Kingdom. Halliburton was concerned that if it won the bid to acquire Expro, it might be held liable for FCPA or UK Bribery Act related violations committed pre- or post-acquisition by Expro. Halliburton committed to a plan with stringent requirements to engage in pre- and post-acquisition due diligence and to remediate within one year any issues that were found. The DOJ in turn agreed not to take any enforcement actions against Halliburton, assuming the plan was carried out. Many observers thought the requirements and timeframes were too harsh and were difficult to meet, yet “DOJ Opinion Release 08-02” created a standard that other companies referred to when planning to carry out similar acquisitions.

In comparison, deferred prosecution agreements (DPA’s) with Johnson & Johnson in 2011 and Data Systems & Solutions this year include more relaxed requirements, especially in terms of timeframes. With the Halliburton case, certain provisions of the agreements were to be completed within 90, 120, and 180 day periods from the time of the deal. The Johnson & Johnson DPA allowed for 18 months to complete a full FCPA audit, and for 12 months to implement an FCPA compliance program and train employees on FCPA compliance. The Data Systems & Solutions DPA that was released last month is even more relaxed, declining to set a specific time frame for those 3 requirements and instead using the language that they must be completed “as soon as is practicable.”

Companies can take some satisfaction knowing that the DOJ is responsive to comments from companies and that its requirements have been evolving appropriately. However, FCPA and UK Bribery Act compliance requirements are still intensive and time-consuming. Guidepost Solutions has the experience and expertise to create and implement an FCPA / UKBA compliance program that conforms to DOJ standards and requirements.

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