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A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.


            cooperated with the investigation, and incorporated   or  suspicions  of  misconduct  by  the  company,  its
            the acquired company into its compliance program    employees,  or  agents.    An  effective  investigations
            and internal controls. On the other hand, SEC took   structure  will  also  have  an  established  means  of
            action  against  the  acquired  company,  and  DOJ   documenting the company’s response, including any
            took  action  against  a  subsidiary  of  the  acquired   disciplinary or remediation measures taken.
            company. 344     When  pre-acquisition  due  diligence   In addition to having a mechanism for
            is  not  possible,  DOJ  has  described  procedures,   responding to the specific incident of misconduct,

            contained in Opinion Procedure Release No. 08-02,   the  company’s  program  should  also  integrate
            pursuant to which companies can nevertheless be     lessons  learned  from  any  misconduct  into  the
            rewarded if they choose to conduct thorough post-   company’s  policies,  training,  and  controls.    To  do
            acquisition FCPA due diligence. 345                 so, a company will need to analyze the root causes
                FCPA due diligence, however, is normally only   of the misconduct to timely and appropriately
            a  portion  of  the  compliance  process  for  mergers   remediate those causes to prevent future
            and  acquisitions.  DOJ  and  SEC  evaluate  whether   compliance breaches.
            the acquiring company promptly incorporated the
            acquired  company  into  all  of  its  internal  controls,   Other Guidance on Compliance and

            including its compliance program. Companies should   International Best Practices
            consider  training  new  employees,  reevaluating        In addition to this guide, DOJ has published
            third parties under company standards, and, where   guidance concerning the Evaluation of Corporate
            appropriate,  conducting  audits  on  new  business   Compliance  Programs. 347   The  Evaluation  of
            units.                                              Corporate Compliance Programs is meant to assist
                For  example,  as  a  result  of  due  diligence   prosecutors in making informed decisions as to
            conducted by a California-based issuer before       whether,  and  to  what  extent,  the  corporation’s

            acquiring  the  majority  interest  in  a  joint  venture,   compliance  program  was  effective  at  the  time
            the issuer learned of corrupt payments to obtain    of  the  offense,  and  is  effective  at  the  time  of  a
            business.  However,  the  issuer  only  implemented   charging  decision  or  resolution,  for  purposes
            its  internal  controls  “halfway”  so  as  not  to  “choke   of  determining  the  appropriate:  (1)  form  of  any
            the sales engine and cause a distraction for the    resolution or prosecution; (2) monetary penalty,
            sales  guys.”  As  a  result,  the  improper  payments   if any; and (3) compliance obligations contained
            continued,  and  the  issuer  was  held  liable  for   in  any  corporate  criminal  resolution  (e.g.,
            violating the FCPA’s internal controls and books and   monitorship  or  reporting  obligations).    The  DOJ
            records provisions. 346                             compliance guidance provides companies insight


            Investigation, Analysis, and Remediation of         into the types of questions that prosecutors ask
            Misconduct                                          to  evaluate  and  assess  a  company’s  compliance
                The truest measure of an effective compliance   program.
            program  is  how  it  responds  to  misconduct.          In  addition,  the  U.S.  Departments  of
            Accordingly,  for  a  compliance  program  to  be  truly   Commerce  and  State  have  both  issued
            effective,  it  should  have  a  well-functioning  and   publications that contain guidance regarding
            appropriately  funded  mechanism  for  the  timely   compliance  programs.  The  Department  of
            and  thorough  investigations  of  any  allegations   Commerce’s International Trade Administration

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