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What Private Equity Needs to Know About the FCPA
The Foreign Corrupt Practices Act of 1977 (FCPA) has been an enforcement “hot topic” for the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (“SEC”). The 35-year-old statute, generally speaking, prohibits U.S. corporations from bribing or otherwise corrupting foreign officials in order to obtain or retain business advantages. In the past, private equity firms and hedge funds have not been subject to the rigorous regulatory scrutiny applied to publically traded companies under the FCPA. However, it appears that this trend may be changing.
In recent years, the DOJ and SEC have begun to examine foreign investments made in emerging markets by private equity firms and hedge funds for possible FCPA violations. In November 2010, the SEC began investigating Europe's largest insurer, Allianz SE, for possible bribery committed by a German printing press company that was majority-owned by Allianz's private equity arm. This inquiry marked the SEC's first FCPA investigation into a private equity fund based on allegations of misconduct by a company in its investment portfolio.
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The DOJ's Corporate Enforcement Policy: One Year Later
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The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.