Until recently, many FCPA practitioners had based decisions in the M&A context on Department of Justice’s (DOJ) Opinion Release, 08-02 (08-02), which related to Halliburton’s proposed acquisition of the UK entity, Expro. However, the recently released Deferred Prosecution Agreement (DPA) of Johnson & Johnson (J&J) may have changed the perception of practitioners regarding what is required of a company in the M&A arena related to FCPA due diligence, both pre and post-acquisition. In this post we will review the genesis of 08-02, the risk based approach that it advocated and the vigorous time frames, which it set forth, to accomplish the agreed to compliance investigations and opine on how these may have changed.
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