One of Brazil’s largest corruption investigations – an investigation involving Petrobras, Brazil’s government-controlled oil company – has attracted the attention of United States prosecutors and regulators. The investigation by Brazilian authorities has already led to criminal charges against at least 40 companies and individuals in Brazil, including some of Brazil’s largest construction companies and their executives. In the U.S. a number of Federal securities class actions have been commenced against Petrobras, its directors and its investment bankers.
The U.S. Department of Justice and U.S. Securities and Exchange Commission (SEC) are reportedly investigating the Petrobras-related corruption allegations for possible violations of the U.S. Foreign Corrupt Practices Act (the FCPA). Press reports indicate that U.S. investigations are focusing on the business activities of Petrobras in Brazil. Such investigations, however, can also expose other Brazilian and U.S. persons (including companies and individuals) to the risk of becoming the subject of U.S. investigations.
The FCPA prohibits any person that issues securities in the United States and any United States national from making payments to foreign government officials to assist in obtaining or retaining business. Violations of the FCPA carry criminal penalties, including incarceration. In addition, U.S. or Brazilian companies found to have participated in bribery or similar corrupt practices anywhere in the world may be prohibited from participating in contracts with governmental entities in the United States.
Consequently, testimony required by U.S. or Brazilian authorities in the Petrobras and related investigations can expose U.S. and Brazilian persons to legal risks in the United States. Specifically, those who have been involved with Petrobras or its business partners should be aware of the following:
- Information sharing among jurisdictions: Information provided to Brazilian authorities may be transmitted to United States law enforcement authorities for use in U.S. FCPA investigations.
- Responding to United States subpoenas: U.S. regulators and criminal authorities may issue subpoenas seeking documents and testimony from Brazilian or U.S. persons. These persons should consider how to respond to such requests to minimize the risk of any adverse action by U.S. authorities. They should also consider whether to invoke privileges that protect certain information from disclosure. Even persons (Brazilian or U.S.) not the subjects of an FCPA investigation may be called upon to provide evidence that U.S. authorities seek in the investigation of others.
- An increased United States enforcement focus on Brazilian activities: Reports indicate that U.S. authorities are now focusing on activities involving Petrobras. There is a risk, however, that U.S. authorities may expand their investigation into other activities by others in or involving Brazil. Brazilian companies should review their compliance policies and procedures to help ensure that they do not find themselves the subjects of a U.S. FCPA investigation.
- The need to interface with United States authorities: The subjects of an FCPA investigation are often best served by engaging in a dialogue with U.S. enforcement authorities both to facilitate the delivery of requested information and to ensure that the U.S. authorities understand that the person is being cooperative.
- Review of contracts with governmental entities in the United States: Brazilian and U.S. persons may be barred from contracts with U.S. governmental entities if they or their joint venture partners are deemed ineligible to bid or participate in such contracts by reason of their violation of the FCPA or similar laws elsewhere. Such persons should review the terms of their government contracts and their agreements with partners to assure that no default or other penalty provisions may apply to their detriment.