Publications

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In response to the current global financial crisis, large corporations and businesses, particularly financial services organizations, are seeking new investment opportunities. Some have sought investment from sovereign wealth funds (SWF), state-owned investment vehicles pooled from a foreign nation’s economic reserves. Yet in undertaking these new business initiatives, many may have unknowingly exposed themselves to possible FCPA scrutiny.

In the case of SWF investment, businesses must be mindful that the definition of “foreign officials” under the FCPA has expanded beyond the traditional classification of foreign dignitaries or elected officials. It may include any business, as well as its representatives, that is managed by the investment arm of a foreign country or receives funding from a foreign country’s investment fund, if the foreign government exercises certain levels of control. Accordingly, a company may unwittingly be doing business with those to whom it is forbidden from offering gifts or making certain payments, and may lack the necessary internal controls to perform the heightened diligence required by the FCPA. Businesses actively seeking SWF investment, or those businesses that transact with clients who have received SWF investment, may find themselves caught up in FCPA liability.

This potential exposure comes at a time when both the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have made it a top priority to investigate and enforce FCPA violations.

Businesses Receiving SWF Investment May be Liable Under the FCPA

The basis for increased liability among businesses that have received funding from SWFs is what the SEC and DOJ define as “quid pro quo” arrangements. A transaction may be vulnerable to FCPA enforcement if a business accepts SWF funding with the sole intent of achieving new business opportunities in the SWF’s home nation in violation of the FCPA’s anti-bribery provisions.¹

The US government increasingly has been scrutinizing business for violations of the FCPA. Financial services providers traditionally have been unaffected by FCPA enforcement activities, which primarily focused on the manufacturing, energy, telecommunications and pharmaceutical sectors. However, it appears likely that increased FCPA scrutiny may soon focus on financial services providers.² Since 2007, SWFs have invested an estimated $30 billion to $40 billion in US financial services firms, making them the most significant and transparent recipient of SWF investment.

Increased Vulnerability of Businesses Transacting with SWF-Infused Clients

Additional FCPA scrutiny may apply not only to the businesses that actively seek SWF investment, but also to those businesses that transact with companies receiving SWF funding, because the entities receiving the funding may be treated as agents of foreign countries for purposes of FCPA enforcement. An issuer and its employees, therefore, may be exposed to FCPA liability for business dealings associated with the SWF-infused client, whether or not it was aware that the client was connected to an SWF.

This too marks an important expansion of potential FCPA liability. Traditionally, FCPA prosecutions and enforcement actions had been limited only to those issuers who unlawfully conducted business in foreign nations. But this new trend would include domestic issuers that conduct business with other domestic businesses exclusively on US soil.

Neither the SEC nor the DOJ has set forth specific guidelines regarding the percentage of foreign funding that a business must receive in order for its employees to be treated as “foreign officials.” However, both agencies have indicated that the employees of such businesses may be deemed “foreign officials” when the foreign government exercises “effective control” over the business. The effective control standard typically examines governmental membership in various executive committees, governmental involvement in decision making or governmental veto power.

Issuers Must Take Extra Precautions to Prevent FCPA Exposure

All issuers should evaluate their clients and determine the extent to which an SWF “exercises control” over the business in which it has invested. Ultimately, this may affect the way that the issuer can transact with this client. In addition, issuers that have received SWF funding must undertake FCPA compliance initiatives prior to initiating any new business in the SWF’s home country.

To ensure compliance with the FCPA, it is crucial for companies to maintain up-to-date corporate policies on the FCPA, implement a strong compliance program, monitor activities of its agents and employees involving government officials, and conduct intensive training.

In the event that a company learns of a potential FCPA violation, it must act promptly and efficiently to minimize the impact on its business. The company should obtain legal assistance on a range of issues including how to conduct an internal investigation, whether to voluntarily disclose the violations to the authorities and what remedial actions to take.