Due Diligence

News & Analysis as of

Higher FCPA risks for mergers and acquisitions? Opinion Release 14-02 and your growing business – three steps

The Department of Justice has announced that it would take “no action” against a multinational corporation in connection with its acquisition of a foreign corporation with significant record-keeping deficiencies and a history...more

DOJ’s Second Opinion Release of 2014: Is DOJ Evolving Away from the Halliburton Opinion Standard?

The Department of Justice (“DOJ” or the “Department”) just issued its most recent FCPA Opinion Release, only the second in 2014. The Requestor, a publicly traded U.S. consumer products company, sought an opinion as to whether...more

Conflict Minerals: D.C. Circuit to Reconsider Conflict Minerals Ruling; Initiatives Proceed in the European Union and China

Recent developments in the U.S., European Union and China underscore the dynamic nature of evolving supply chain due diligence requirements and expectations for companies sourcing tin, tantalum, tungsten and gold. The...more

A Holistic Look at Third Party Risks

In the FCPA world, we tend to get myopic. We see complex issues and business operations through the prism of anti-corruption risks. Businesses and Chief Compliance Officers, however, have a very different perspective....more

Caveat Emptor: Five Steps to Avoid FCPA Successor Liability in M&A

Anti-corruption due diligence has become increasingly common in the M&A context. But when such pre-acquisition diligence identifies possible improper payments to foreign government officials or other red flags, what is the...more

Insolvency in the Fashion Retail Sector: Understanding and managing the risks of an insolvent acquisition

Opportunity Arises Out of Adversity - The recent global financial crisis has seen consumers tighten their belts and the retail industry as a whole has faced increasing pressure. Profits warnings have peppered the...more

Five Million Dollar Penalty is Stark Reminder About "Gun Jumping"

On November 7, 2014, the Antitrust Division of the Department of Justice ("DOJ") announced that it had imposed a civil penalty of $3.8M and disgorgement of $1.15M in profits on Flakeboard America Limited (and its parent...more

Opinion Release 14-02: Dis-Linking The Illegal Conduct Going Forward

One of my favorite words in the context of Foreign Corrupt Practices Act (FCPA) enforcement is dis-link. I find it a useful adjective in explaining how certain conduct by a company must be separated from the winning of...more

English High Court Holds Litigation Funders Liable for Indemnity Costs

The court’s decision will have wider significance for litigation funders, parties seeking funding, and their opponents. On 23 October, the English High Court handed down its judgment in Excalibur Ventures LLC v Texas...more

Back in the game: The rise of US M&A

US M&A is bouncing back - After a tough few years, acquisitions in the United States have seen a remarkable resurgence - The first half of 2014 saw a great dealmaking revival in the United States. Deal values...more

Global HR Hot Topic—November 2014: Employment Law Toolkit for Cross-Border M&A Deals

Some years ago, a leading London corporate lawyer told The New York Times that in "merging two regular companies...you just do it and sort out the people issues afterwards." (A. Sorkin, "A Lawyer's Lawyer: Bridging Borders,"...more

Sharing the Spotlight: M&A Due Diligence

Everyone likes to talk about the importance of due diligence. A whole new due diligence industry has grown, starting with initial anti-money laundering requirements and stretching into corruption and sanctions issues....more

Don't fall flat on anti-corruption due diligence

Failing grade for many countries - Recently, Transparency International came out with their Corruption Progress Report for 2014. A promise was made about 15+ years ago by many of the world's leading economies to...more

Broker-Dealers Ignoring Red Flags Lead to SEC Releases and Enforcement Action

In October 2014, the SEC’s Division of Trading & Markets issued FAQs to remind broker-dealers of their obligation to conduct a reasonable inquiry when selling securities in an unregistered transaction in reliance on Section...more

“Do the Due”: Performing proper diligence when assessing IP assets for acquisition - Knowing all of the benefits and issues before...

The concept of due diligence often arises when intellectual property (IP) assets become available for potential acquisition. Any number of reasons may lead to this availability. An asset may be for sale due to an entity going...more

What Does It Take to Make the SEC Happy? SEC Criticism of Broker-Dealers’ Due Diligence for Sales of Unregistered Securities...

To ensure that broker-dealers (BDs) do not inadvertently facilitate an unlawful distribution of securities, the Securities and Exchange Commission has long required BDs to conduct a “reasonable inquiry” into the circumstances...more

Supply Chain Management: Avoiding Headaches

Companies implementing due diligence programs face a number of challenges. It is hard enough to identify all of a company’s third-party intermediaries – agents, distributors, customs and logistics representatives, nominees,...more

Beyond the Checklist: Seven Keys to Effective Trade Due Diligence

Anti-corruption due diligence can be vexing even in the best of conditions; it is often made more complicated by time and business pressures that arise in the context of a merger or acquisition or an urgent sales opportunity....more

Inside M&A - Fall 2014

Managing Compliance Risks in M&A Transactions - Buyers can acquire unintended and potentially very damaging liabilities together with target business or assets. Analyzing the financial situation of a target company,...more

SEC Charges E*Trade Subs: When Is the Due Diligence Sufficient?

Having the correct compliance procedures in place can often be critical. The SEC and the DOJ have repeatedly emphasized this in FCPA cases. Conducting due diligence can be equally critical. For gatekeepers such as lawyers,...more

Ten Requirements for an Effective Due Diligence System

The purpose of a due diligence system is not to identify and prevent hiring of a third-party who will commit bribery. To the contrary, no one can predict with accuracy who will commit bribery, unless they truly have...more

Realizing the Potential of Telemedicine in China, Part 1: Protecting Your IP

This post is the second in Foley’s blogs on China telemedicine and the first in the blog series, “Realizing the Potential of Telemedicine in China,” meant to address top issues facing U.S. companies looking to enter the...more

Potential Impact of New SEC Rules on Cell Tower Securitizations

On August 27, 2014, the Securities and Exchange Commission (the “SEC”) adopted two final rules implementing new regulations affecting asset-backed securities (“ABS”). The first set of rules, referred to in this memorandum as...more

Angels in Limbo: Congress and SEC Consider Regulatory Changes with Potential for Profound Effects on Start-Up Investments

Three events occurred during 2013 that have the potential to significantly affect angel investment around the country: (1) the Securities and Exchange Commission (“SEC”) lifted the prohibition on general solicitation for...more

Rating Agency Developments

On September 19, Fitch released its criteria for analyzing large loans within single-borrower or multiborrower U.S. CMBS transactions. On September 17, DBRS released its methodology for rating U.S. structured finance...more

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