What will often happen is that a whistleblower will come forward and make an allegation that a company is violating FCPA. The company will then hire a law firm to do an internal investigation on behalf of the company. This law firm will then come in and interview employees.
While FCPA violations cut through a broad spectrum of industries, many times companies doing business overseas and actively engaging with foreign governments are the ones involved in these types of cases. For example, companies involved in mining or accessing national resources in foreign countries, companies that are providing services or products to foreign companies may all be vulnerable to FCPA violation investigations.
During these interviews, the attorney conducting the investigation must provide the employees with an Upjohn warning which allows the lawyer to say, “If you do not cooperate with our investigation and answer our questions, you could be terminated from employment.” It is a powerful tool used by lawyers when doing these types of investigations.
Once an internal investigation for a potential FCPA violation is complete, the law firm and the company may self-disclose to the Department of Justice and essentially make a settlement offer with this agency. This can happen through a series of meetings with the appropriate DOJ official. Many times, the Department of Justice may agree to have the company pay a fine or institute a FCPA compliance program so the company can avoid criminal charges.
Many of the settlements are non-prosecution agreements that get issued in these cases occur as the result of the self-disclosure by a company. The Department of Justice depends to a great extent upon companies policing themselves and essentially buying their way out of these situations. Companies typically self-disclose following an internal investigation.
If the company determines that a particular employee or executive is the cause of the violation, a company may try to identify that person or people to the Department of Justice and those people sometimes end up getting prosecuted criminally.
There is a great advantage for a company to self-report because it allows them to take control of the narrative by hiring the people who conduct the investigation. This makes it easier for the Department of Justice to sign-off on settlements. In fact, according to the Department of Justice’s own guidelines self-disclosure and mitigation are huge factors to be considered by the Department of Justice when deciding whether to prosecute.
When an employee is being investigated for a potential FCPA violation, they are at a huge risk because the lawyers that a company hires to conduct an internal investigation are not meant to protect the employee, but the company itself. Therefore, these employees are not covered by the attorney-client privilege when they interact with lawyers representing the company.
Anything that an employee says to one of the employers can be disclosed. That is why Upjohn warnings are given because they lay out for the employee the fact that the interview would not be privileged, and if they refuse to participate, they can be fired. Therefore, it is often in the employees’ best interests to get their own lawyers to protect their rights.
Depending on the type of investigation, employees that are intimately involved in the factual allegations are typically questioned. For example, if there is a purported attempt to bribe or provide items of value to a foreign official, whoever the person or people that supposedly either had conversations or otherwise interacted with the foreign officials will generally be a target. Executives could potentially be targeted if they theoretically are in the supervisory chain or should have had reason to know about this type of activity.
A low-level employee tends to have less protection because they may have less of an influence on the well-being and future of the company. Companies tend to protect their executives to the extent that the company can. Alternatively, lower-level employees who have the knowledge of the FCPA violation are many times more likely to be protected by government agencies involved in the investigation. In other words, they are more likely to be treated potentially as witnesses in a criminal case and not be prosecuted if they have information that might implicate a senior-level official or executive.
If you are under investigation for a FCPA violation, you should speak with a DC attorney immediately. Our team could help you prepare you for this process and explain your legal options. For help with your case, call today.
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