A company that is the subject of a U.S. government investigation under the Foreign Corrupt Practices Act (FCPA) will have significant incentives to cooperate with the U.S. Justice Department and, if applicable, the U.S. Securities and Exchange Commission (SEC), to avoid the potential of a huge fine. Recently, a senior official in the Biden Administration’s Justice Department indicated that the Department would take a more aggressive position on requiring companies to identify individuals involved in a matter under investigation by the Department.[1] As part of any cooperation with the government, the Company will be required to provide information to the government about any individual whose conduct may be relevant to the investigation. If you are a company executive or employee whose conduct is the subject of an FCPA investigation, here are eight tips to remember.
The company’s counsel is not your lawyer. The company’s lawyers will be the first to admit they only represent the company, but they will also ask you to cooperate with them in an interview, the substance of which the company may disclose to the government. You have a right to consult with your own counsel before agreeing to such an interview (even if the company has not retained counsel for you), and to stop the interview at any time if you believe your conduct is a significant issue in the investigation. If the company demands your cooperation, you should review your employment agreement to see if it requires...
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