For targeted companies or industries, an anti-corruption investigation or prosecution inevitably leads to an interruption of business operations and often irreparable reputational damage, as well as the risk of heavy financial penalties, significant employee morale concerns, and shareholder and patient unease. In addition, for those companies who are active in joint ventures, mergers, acquisitions or other business arrangements globally, appropriate due diligence is a necessity due to the potential for acquiring the risk and liability as a result of actions taken by the new business partner.
The United States anti-corruption law, the Foreign Corrupt Practices Act (FCPA), has been the major global impetus behind such investigations and enforcement actions. However, more recently there has been an unprecedented rise in the intensity of enforcement under anti-corruption statutes in other countries, specially in Brazil. TCMB was one of the pioneer firms with an anti-corruption practice in Brazil and together with Mayer Brown’s offices in the Americas, Europe and Asia, has highly experienced lawyers who offer clients an all-embracing solution to ensure compliance with an increasingly global framework of anti-corruption statutes, and the attendant data privacy and privilege issues associated with cross-border investigations. We advise on the multiple, complex features of the Brazilian Clean Companies Act (CCA), the FCPA and the UK Bribery Act and the interplay of those with other domestic anti-corruption laws globally. Where knowledge of local laws is required, we work closely with colleagues in our international offices to ensure compliance with any applicable local laws and regulations.
We have been active in parallel Brazil, US, EU and Asian investigations and litigation, which are increasingly common. Our work addresses both the requirements of the Brazilian CCA, as well as the anti-bribery provisions and the accounting provisions of the FCPA and UK Bribery Act and the requirements of other relevant laws. Our global team offers comprehensive guidance and counseling, including the following services:
Corporate Compliance Programs
We advise clients on the development and implementation of internal compliance programs to reduce the risks of a violation of anti-corruption statutes, and especially in view of the requirements imposed by the Brazilian CCA and Federal Decree 8,420/2015. We conduct compliance risk-assessments to establish an accurate and comprehensive compliance program and also to identify strengths and weaknesses in those which already exist. Additionally, we help general counsel, compliance officers and audit committees formulate compliance policies, assist in the implementation of compliance programs, addressing specific issues in the context of particular corporate cultures and multinational operations, training and preparing educational materials, drafting compliance certification instruments, and counsel internal auditors on how to conduct audits to ensure compliance. Instituting effective compliance programs and auditing functions is crucial to a company’s ability to prevent violations from occurring and, especially under the Brazilian CCA, to mitigate penalties in the event that a violation occurs. In addition, we provide guidance and direction for post-acquisition compliance enhancements in order to assimilate new entities into an existing corporate compliance program and to minimize the risk of successor liability.
We help clients assess prospective transactions with respect to compliance, and we advise on structuring transactions to satisfy the requirements of the applicable anti-corruption laws. We provide due diligence review of key anti-corruption concerns, while working closely with the deal team to ensure that any such risks are appropriately addressed through fact-gathering, specific reps and warranties, limitations of liability and that any such potential risk can be adequately addressed through indemnification. We also help clients engage in effective due diligence and background check with respect to the engagement of foreign agents, consultants, representatives and joint-venture partners, and we counsel on appropriate contractual provisions to address anti-corruption compliance and risk.
We have extensive experience in handling internal corporate investigations, including those addressing possible violations of the anti-bribery, books-and-records, internal controls and anti-corruption laws generally, as well as the statutes that are often associated with anti-corruption investigations, including antitrust laws, the Brazilian Public Procurement Laws, the United States Travel Act, Mail & Wire Fraud and Money Laundering statutes worldwide. We have worked with inside counsel, internal auditors and external auditors to assemble and review documents, interview directors and current and former employees, and provide advice to boards of directors and audit committees on the results of investigations. We are alert to issues of attorney-client privilege, document retention and electronic discovery, all of which may be crucial in the event of a government enforcement proceeding. We are familiar issues raised by data privacy and employment laws, as well as blocking statutes.
We have over 25 lawyers trained and experienced in internal investigations, which makes one of the largest teams prepared to conduct internal investigations in any law firm in Brazil.
We assist clients in anticipating and preparing for possible enforcement proceedings by the Brazilian Office of the Comptroller General (CGU), the Brazilian Public Prosecutors, as well as the US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC), and we represent clients in such proceedings. Through the UK Mayer Brown offices, we are also experienced in dealing with the relevant UK regulatory and enforcement bodies, such as the Serious Fraud Office (SFO).Our experience includes negotiating the scope of enforcement proceedings; responding to requests for documents; advocating client positions in submissions to, and in meetings with, officials from regulators and enforcers; defending against prosecutions or civil actions; and negotiating settlements.