FCPA Investigations and Data Privacy

If you’re involved in FCPA investigations, or any type of cross-border discovery matter, take a minute to download survey results of 114 FCPA professionals. In it, respondents share their thoughts on key trends and best practices for matters ranging from FCPA, the U.K. Bribery Act, and whistleblower investigations.

Why is this important now? With an increased focus on FCPA enforcement by the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission, as well as the 2011 enactment of the U.K. Bribery Act, corporations are increasingly required to conduct anti-bribery due diligence and investigations across the globe. Sovereign data privacy laws in the European Union, Asia and Latin America can make it a challenge to comply with U.S. regulators’ expectations for credible investigations.

For instance, to comply with a DOJ request for email correspondence or documents originating in certain EU countries, a company cannot simply gather those documents and bring them to the United States for review and production.  Because individual employees’ privacy rights in the EU are very strong (and quite different from those in the US), the EU-to-US transfer of an employee’s personal data requires a permissible basis.  

Which brings us to the survey findings. Complying with both U.S. and foreign data privacy requirements can necessitate creative solutions and a strategic legal and technical partnership to gather and review the necessary data and documents. The report highlights many of the creative approaches to defensible discovery, including mobile processing and review environments, to partnering with local counsel.

In addition, the report includes qualitative and quantitative information on a range of issues, including blocking statutes and privilege and secrecy laws.

Some of the other interesting data points include:

• 48% of respondents have conducted investigations requiring data collection in China.
• 40% have spent over $500,000 (US) conducting multinational investigations.
• 54% said data privacy is the number one challenge for multinational investigations.
• 76% expect an increase in data privacy requirements in the coming years.

I should also mention that the results are also available in webcast form. I had the privilege of co-presenting the survey results with Gary DiBianco, a partner in the London office of Skadden, Arps, Slate, Meagher & Flom, as well as Mary Jacoby, the editor of the consistently excellent Main Justice news site.