Foreign Corrupt Practices Act

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Overview
Case & Project Experience
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In recent years there has been an increased focus on enforcement actions by the U.S. Department of Justice (DOJ) and Securities and Exchange Commission (SEC) in regard to the Foreign Corrupt Practices Act (FCPA), with particular attention to violations of the books and records provision. Accordingly, the need for forensic accounting experts who understand the nature of non-U.S. operations is of critical importance for companies at risk of committing a FCPA violation.

Hemming Morse has nearly twenty years of extensive experience with the FCPA, including a Compliance Monitoring assignment in 2005. Partner Dan Ray is a former FBI Special Agent with the unique qualification of having been appointed on two separate occasions by the DOJ and SEC to serve as the Compliance Monitor for companies under deferred prosecution agreements. In addition, he has also served as an “informal” FCPA Compliance Monitor for four years for a pharmaceutical company. As part of their work, Hemming Morse professionals have traveled throughout Asia and Europe for its work with companies or as an independent monitor.

Our team of professionals work closely with in-house counsel, compliance officers, audit committees, and outside counsel to provide collaborative, efficient, and cost-effective investigations and compliance monitoring services. From monitoring, to preventative counseling, to transaction due diligence, Hemming Morse has the required and distinct experience and skills.

FCPA Compliance Monitor for Medical Device Company

A Hemming Morse partner was appointed as the FCPA Compliance Monitor for a $5 billion medical device company based in London, whose shares of stock were listed and traded on a U.S. stock exchange. The appointment was pursuant to a deferred prosecution agreement with the DOJ and Consent Decree with the SEC for violations of the FCPA. Hemming Morse’s assignment included reviewing worldwide company operations and making numerous site visits to Russia, China, and throughout Europe. Detailed reports of findings were issued to the DOJ and SEC on a periodic basis.

FCPA Investigation for NYSE-Listed Chemical Company

During the due-diligence phase of a proposed acquisition of a chemical company based in Asia, a chemical company whose shares were listed and traded on the NYSE discovered suspect payments to third parties that had been made by the acquisition target. Hemming Morse was retained to assist outside counsel with the investigation of these alleged suspect payments and possible violations of the FCPA. Hemming Morse professionals conducted numerous interviews throughout Asia and identified, collected, reviewed, and analyzed numerous business records of the acquisition target. Critical issues identified and analyzed by Hemming in this matter included: (1) whether to go forward with the acquisition in light of the identified suspect payments; (2) whether the culture and procedures of the entity being acquired could be altered to prevent future improper payments; (3) the potential impact on sales revenue with the ending of the inappropriate payments; (4) and, assessment of adjustments needed to the negotiated purchase price.

FCPA Consulting (“Informal Monitor”) for Pharmaceutical Company with Operations in China

Hemming Morse served as a consultant, or “informal monitor,” for a pharmaceutical company whose shares of stock were listed and traded on a U.S. stock exchange. The pharmaceutical company had significant operations throughout China that faced various investigations into its activities and operations for possible FCPA violations. Hemming Morse was engaged to make site visits to China to meet with company officials on a quarterly basis, review accounting records, and make recommendations for improvements to compliance policies and procedures. Hemming Morse was also engaged to provide its independent assessment and findings to the DOJ and SEC as to whether the company was actively addressing compliance concerns.

FCPA Assessment for Fortune 100 Space and Defense Company

A Hemming Morse partner was retained by the General Counsel and Chief Compliance Officer for a space and defense company to assist in the assessment of whether the Fortune 100 Company should continue its business relationship with its Asia-based distributor. The distributor in question had been accused of FCPA violations in other parts of its business, resulting in Hemming Morse’s client exercising its FCPA audit rights with respect to its business conducted with the accused distributor. The work performed included conducting interviews of officials at both the client company and the Asian-based distributor; testing of sales and related payment transactions; evaluation of internal controls; and the issuance of a comprehensive report containing multiple recommendations.