One question we all face at one time or another throughout the day is: “am I doing enough?” This rings true to both work and at home. Often times, there is not definitive answer. A Department of Justice (DOJ) release on November 7 helped shed light on that question in regards to mergers and acquisitions due diligence.
A U.S. issuer was contemplating the acquisition of a Foreign Target, but had concerns before moving forward. Mainly, the U.S. Issuer was concerned that the Foreign Target and its Seller’s engaging in improper payments in another country would adversely affect their interest. Both the Foreign Target and the Seller have no ties to the United States in regards to the business conducted. The U.S. Issuer wanted an Opinion as to whether the mergers and acquisitions due diligence conducted would lead to an FCPA enforcement action. Surprisingly, the DOJ said there would not be an FCPA enforcement action. Here is what the DOJ said: “successor liability does not . . . create liability where none existed before.”
Essentially, the DOJ said that even though the M&A due diligence uncovered previous criminal and civil liabilities, the U.S. Issuer will not be retroactively punished under the FCPA. It is meaningful to note, however, that as part of the acquisition of the foreign target, the Issuer intended on overhauling the Foreign Target’s compliance program. Once the acquisition is complete, any illegal conduct by the foreign target would fall under the FCPA because of the acquisition by the U.S. Issuer.
When analyzing the effect of this Opinion, it is important to realize that mergers and acquisitions due diligence is crucial before moving forward. Also, upon completion of the acquisition, be sure to implement your own anti-corruption policies to ensure that no action is brought under the FCPA. Lastly, one of the most important things you can do to protect yourself from FCPA enforcement action is to report to the DOJ any corrupt payment uncovered in the due diligence process.
By releasing this opinion, the DOJ is encouraging U.S. businesses to move forward with acquisitions of companies that may have engaged in improper behavior in the past. By allowing an ethical company to complete the acquisition of an unethical company and put unethical company under the ethical company’s umbrella of compliance, you can eliminate corruption.
Dylan Owens is a global due diligence consultant for Kreller Group. He advises companies in the areas of M&A Due Diligence and FCPA Compliance Program Construction. He received his undergraduate degree from Wittenberg University and his Juris Doctor from the Roger Williams University School of Law in Bristol, RI.
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