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CCCA61_014,016.qxd:CCCA_V1No2_Dept-CrossBdr-V1.qxd 2/8/08 12:46 PM Page 16 Cross Border critical importance of conducting FCPA highlight the exposure of deals to repricing they often involve the costly imposition of due diligence in acquisitions and of includ- when FCPA problems surface. They also a compliance monitor or an independent ing provisions in acquisition agreements illustrate the prolonged timing involved to compliance consultant. Finally, they make tying closing to FCPA compliance and res- resolve any FCPA violations discovered clear that an acquiror that wishes neverthe- olution of any FCPA violations. They during due diligence. At the target level, less to proceed with an acquisition where FCPA problems are identified must, in order to protect itself from successor liability, participate on its own behalf in any resolution with the government. Given the penalty provisions,the conse- quences of overlooking, disregarding or conducting inadequate due diligence in acquisitions can be severe. It is thus extremely important to conduct FCPA-specific due diligence reviews of potential targets operating internationally. Red flags often surface in payment terms and arrangements with third parties and in the related documentation. If any red flag is known or uncovered during the course of due diligence, the acquiror should conduct a reasonable review of that red flag, take reasonable steps to Looking at law from your address it, and document how it was perspective. addressed. In addition, it is crucial for a potential acquiror to document the due diligence review process in rea- sonable detail. The level of detail Your lawyers should be a part of the team, should be such that if a concern arises not an obstacle to it. At Miller Thomson LLP, later, the acquiror can retrace the steps our goal is helping you to reach your goals it took in its FCPA due diligence by offering insight, creative thinking and investigation in order to demonstrate maximum value to all of our clients all that it did not ignore the subject of the of the time. That’s how we’ve become one of Canada’s leading national law firms. concern or any indicators of a poten- tial violation. Essential minds for your essential business. Marilyn Mooney is the partner-in- www.millerthomson.com charge of the corpo- rate and securities practice in the Washington, D.C. office of Fulbright & Jaworski LLP,a law firm with more than 1,000 lawyers and 16 offices worldwide. Marilyn is known for running complex worldwide acquisitions, typically for TORONTO VANCOUVER CALGARY EDMONTON LONDON KITCHENER-WATERLOO GUELPH MARKHAM MONTRÉAL major multinational companies. 16 CCCA Canadian Corporate Counsel Association SPRING 2008
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