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FCPA Due Diligence and Data Privacy Laws

By Jacqueline C. Wolff and Daniel P. Cooper

As Russia, China, India and a host of other countries open their doors to U.S. investors, the number of companies and individuals who need to think about the risk of prosecution under the Foreign Corrupt Practices Act of 1997 (FCPA) has increased tremendously. No longer is it just the big multi-nationals who need to consider FCPA compliance risks; private equity firms, individual investors, and small businesses looking to get a piece of the international pie need to understand the risks of potential criminal exposure before they invest overseas. That means understanding the requisites of due diligence.

This year the Department of Justice (DOJ) issued two important advisory opinions describing what due diligence a potential investor and an acquiring party had performed in order to obtain a “no enforcement” opinion from the DOJ. In this article we examine the inherent conflict between what the DOJ expects and the prohibitions placed on such due diligence by the privacy laws of other countries. We also suggest ways to deal with this seemingly insurmountable conflict.

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