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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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In today’s era of heightened scrutiny, aggressive enforcement, and increasingly draconian sanctions, outside counsel are performing many different types of functions in assisting companies reduce their potential FCPA exposure.

  1. Advice.

    Of course, outside counsel provide advice and help guide companies in various ways, including when companies are:

    1. instituting compliance procedures;
    2. seeking to make a questionable expenditure; or
    3. encountering red flags.
  2. Representation of corporation and individuals who are under investigation, or who are defendants in criminal cases or enforcement actions.
    1. Another traditional type of representation is when a company (or one of its executives) is under scrutiny from authorities.
    2. Proskauer currently defends an individual accused by the DOJ and the U.S. Attorney’s Office for the Southern District of New York of allegedly conspiring to pay bribes totaling almost $500 million to the President of Azerbaijan and other senior Azeri officials in return for being permitted to acquire a controlling interest in the state-owned oil industry during Azerbaijan’s privatization process.
  3. Internal Investigations.
    1. As companies face increased exposure under the FCPA, the importance of having outside counsel perform internal investigations when problems arise has also increased.
    2. Proskauer recently conducted a global internal investigation into allegations of FCPA violations for a multi-national company, interviewing more than 100 employees in North America, Latin America, Europe and Asia.
  4. FCPA audits and risk assessment.
    1. Outside counsel can also assist corporations by conducting internal controls reviews, FCPA audits, and FCPA risk assessments.
    2. Proskauer is currently conducting an audit of a multi-national company’s internal FCPA controls in Asia, to assess the company’s FCPA compliance program and help minimize areas of risk.
  5. Development of Tailored Compliance Program.
    1. Outside counsel can assist corporations by developing an effective compliance program designed to detect and prevent FCPA violations.
    2. Proskauer recently assisted one of its clients to develop a compliance program that was tailored to address its particular areas of FCPA risk.
  6. Training and Educational Programs.
    1. Another area in which outside counsel can assist companies is to develop and conduct FCPA training and education programs, to help familiarize employees with the requirements of the FCPA, to make them more sensitive to the existence of potential red flags, and to help them detect and prevent potential FCPA violations.
  7. Independent Monitors.
    1. Outside counsel are increasingly called upon to serve as independent monitors, meaning that they do not represent the companies and may be required to report their findings to the authorities.
    2. In such a role, outside counsel assess and, if need be, overhaul a company’s FCPA compliance program.
    3. Utilization of an independent monitor is becoming increasingly standard after a company has had past FCPA compliance problems, and is now a somewhat routine provision of settlement agreements with the DOJ and the SEC.

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