One of my favorite words in the context of FCPA enforcement is dis-link. It a useful adjective in explaining how certain conduct by a company must be separated from the winning of business and more broadly it works on many different levels when discussing the FCPA. This concept of dis-linking was most prominently laid out in Opinion Release 14-02. It provided one of the most concrete statements from the DOJ on the unidimensional nature of compliance in the M&A context; both in the pre-acquisition and post-acquisition phases.
Opinion Release 14-02, taken together with the steps laid out in the 2020 FCPA Resource Guide, 2nd edition, has provided the post-acquisition actions a compliance professional needs to take after the transaction is closed. If you cannot perform any or even an adequate pre-acquisition due diligence, the time frames you put in place after the acquisition closes will need to be compressed to make sure that you are not continuing any nefarious FCPA conduct going forward.
But it all goes back to dis-linking. If a Target is engaging in conduct that violates the FCPA but the Target itself is not subject to the jurisdiction of the FCPA, you simply cannot afford to allow that conduct to continue. If you do allow such conduct to continue your company will be actively engaging and participating in an ongoing FCPA violation. That is the final takeaway from this Opinion Release; it is allowing corruption and bribery to continue which brings companies into FCPA grief. Opinion Release 14-02 provides a roadmap of the steps you can take to prevent such exposure.
Three key takeaways:
- In the M&A context, the key is to dis-link any illegal conduct going forward.
- Opinion Release 14-02 provides the clearest roadmap for pre- and post-acquisition compliance actions in the M&A context.
- Never forget the Opinion Release procedure. It has been used successfully in two important M&A matters (08-02 and 14-02).
