This area of the law is complicated and typically is not litigated a tremendous amount in court. In fact, there have only been a few actual trials regarding FCPA violations. In many of these situations, FCPA violations are handled by prosecutors who are in the Department of Justice’s main office. Those prosecutors tend to lack experience actually conducting trials. This presents opportunities to have success. As such, when retaining a DC FCPA attorney is it important to find a legal advocate who has experience dealing with this area of the law, trial experience, and understands how prosecutors handle these types of case.
A person or company should retain a lawyer in DC as soon as they suspect they are under investigation for an FCPA violation. You should suspect that you are under investigation if you become aware that private information like bank records or emails have been subpoenaed.
Individuals should never participate in an interview if law enforcement agents approach them to try and speak to them. Instead, they should politely decline and provide no other information. If a law enforcement agent shows up to execute a search warrant, part of their goal is to disorient the defendant and have them submit to an interview on the spot.
As an attorney dealing with an FCPA investigation, it is important to establish a close attorney-client relationship. There must be a real relationship based on trust between attorney and client. It is important for someone to trust their DC attorney once they have been retained because they should feel comfortable giving as much information about their FCPA case as possible. This transparency allows for the lawyer to fully understand the situation and the potential avenues to follow that may serve as the best chance of success.
In an FCPA case, parallel investigations may occur. When this happens, typically the SEC will start an FCPA investigation for a civil lawsuit, and federal prosecutors piggyback on this investigation to determine if there is any criminal liability involved. I find that this comes up often in the context of whether or not – deciding whether or not to submit to a deposition by the SEC, because anything said in a deposition could be in a criminal case.
It is important to note that most lawyers in DC advise clients to avoid taking part in a deposition or making any sort of statement in an FCPA civil case run by the SEC or other agency. At the beginning of an investigation, a lawyer acts as a buffer between the client and law enforcement or employees of the SEC. These cases need to be litigated aggressively and we help individuals through this process.
A majority of FCPA violations end up getting self-reported, if they are substantiated by companies following an internal investigation, to the federal government. This leads to a lot of out of court settlements.
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