Video conferencing security; vital for the ‘new normal’ in financial services
Published Tweet By Amit Walia, EVP Managing Partner at Compodium The recent pandemic has fundamentally changed the way most businesses around the world operate.Home working has taken off in a way that would have been unimaginable just this time last year and thanks to technology, we’re as productive in our own homes as we are in a traditional office environment.There’s no question as to the significance that video conferencing has played here.While not a new technology, video conferencing has boomed in recent months, with Global Market Insights predicting the video conferencing market alone will reach a valuation of $50bn by 2026.However, with this growth has come the realisation by many businesses that there is a greater need for protecting the sensitive, confidential and valuable data contained in video conversations.This is particularly so for banking and financial services organisations, where the issue of video security is more important than ever.
Video conferencing security is vital in the ‘new normal’ As we move beyond the more restrictive lockdown period, many businesses are increasingly moving a limited number of employees back into physical office environments.However, with the potential for a second wave and further national lockdowns ever present, it seems clear that remote working is here to stay.While some organisations, such as Barclays , are looking to re-establish on-site operations as quickly as possible, others will remain – at least in some large part – remote.Financial services organisations need to prepare for a new normal – one that caters for remote business opportunities just as effectively as those taking place face-to-face.
There can be no doubt that video is now solidified as the primary method of remote communication.Whether it’s a family catch up or a blue chip board meeting, wherever a physical meeting is not possible, or practical, video conferencing is now a comfortable alterative for most people.
But with more people on video than ever before, the usage surge has also brought increased security concerns.For example, incidents of Zoom-bombing – when strangers intrude on others’ Zoom meetings – have been widely reported.In a recent high-profile case, pranksters Zoombombed the court hearing of a man accused of July’s Twitter hack .In a commercial setting, this activity has the potential threaten the integrity and security of confidential business information.
End-to-end encryption Video conferencing security is now an important consideration – both for businesses operating in highly regulated industries like financial services, as well as individuals prioritising privacy.Zoom’s recent announcement that it will backtrack on previous refusals to provide end-to-end encryption to free users of the service is a major victory for the activists and civil liberties organisations campaigning for privacy and digital protection.Data transmission is one of the most vulnerable areas of video communication and ensuring a comprehensive level of security is paramount for those taking part in digital conversations – whether that’s a personal conversation, or in a commercial environment.During a video conversation, data travels over multiple networks – both public and private – and end-to-end encryption is the foundation of protecting this data in transit.Authentication: going beyond security In finance, end-to-end encryption is not enough – in fact, it’s expected.
Finance is a high-risk, high-reward industry that requires rapid decision making and constant information exchange – all while building and maintaining crucial client relationships.Video conferencing technology has offered a lifeline for many finance organisations focused on maintaining productivity.However, in many organisations, security and compliance considerations as an afterthought.Video conversations contain highly sensitive and confidential information – they must meet the same levels of security, privacy and confidentiality as in-person conversations.
In these environments, security breaches and financial fraud can lead to significant regulatory, financial and reputational damage.Financial services organisations are the backbone of the global economy and during the COVID-19 pandemic, they have the challenge of quickly delivering seamless virtual connectivity.Under unprecedented pressure to roll out new technology, it can be easy to overlook the more fundamental requirements, in favour of rolling out new services and capabilities at speed.
New technology should not come at the cost of privacy and security.End-to-end encryption – which is vital for privacy and security and will now soon be available via even the most basic video conferencing solutions – is not enough to meet the high standards required in financial services.Instead, authentication is the key to ensuring the growing adoption of video conferencing in this industry meets the same high standards delivered to clients in-person.Authentication provides a double layer of trust, ensuring both advisors and clients can be confident that they are speaking to the right person within an entirely confidential virtual space.Only by ensuring video conversations are both end-to-end encrypted and authenticated can finance professionals provide the same level of privacy and security afforded to clients during a face-to-face consultation.This ensures the identity of every conference participant is fully authenticated before the conference is initiated.The new normal The video conferencing authentication process is simple, but hugely effective and vital for the video-driven new normal in financial services.
It provides all the necessary foundations for client security and privacy and will play a vital role in the continued success of the industry.Social distancing has forced us to rethink how we deliver client services, but it has also offered the opportunity to roll out cutting edge technology at breakneck pace.However, while the results are already hugely positive, we need to ensure security remains the priority.Pulling Together in Uncertain Times
Published linker 5 By Edward Thorne, UK Managing Director at Dun & Bradstreet Coronavirus is having a widespread impact on our economic and social wellbeing as individuals and as businesses.A pandemic of this scale is something that we were largely unprepared for and although some organisations may have had continuity plans in place, many businesses have been thrust into an indefinite period of uncertainty – exacerbated in the UK by the Brexit transition period.When non-essential businesses were forced to shut up shop when lockdown measures were announced back in March, it marked the start of a challenging period for companies of all sizes.Even where businesses could remain open, customers could only leave their homes to buy necessary supplies and online shopping soared to 33.4% in May 2020 , the highest proportion on record.
The latest figures indicate there are 5.8 billion small businesses in the UK, making up 99% of the private sector.These businesses are essential to our economy but have been amongst the hardest hit due to limited financial resources.One recent survey suggested that the cost to UK small businesses could be as high as £69 billion .Businesses did their best to find creative ways to remain profitable during the lockdown.Restaurants were delivering ‘contactless’ food (some via robots) and services such as fitness classes were being offered online while gyms remained closed.But the reality is that although we are passing the worst of lockdown, it’s still a challenging time to be a small enterprise and the next few months will be vital to determining whether a business is able to survive the crisis or face permanent closure.
A helping hand It’s in everyone’s interest to help small businesses weather the storm and the government’s suite of measures have provided support for many with over a million bounce back loans worth over £30 billion approved for small businesses, alongside more via other loans schemes and the Future Fund.Over £330 billion has been made available to date in government-backed loans, to provide financial support to businesses in addition to the job retentions scheme and different initiatives such as the kick-starting tourism scheme and new initiatives being announced on an ongoing basis.But it’s not just the government supporting small businesses.We’re also seeing businesses supporting each other.Early on in lockdown, Morrisons pledged to pay their suppliers immediately to mitigate the impacts of COVID-19 on supply chains.As our data and analysis shows, prompt payment is vital for enabling smaller organisations to run smoothly and is hugely important to small businesses.
Business leaders have been uniting to do all they can to fight the virus.Be it through fundraising, donations, manufacturing of ventilators or other equipment and supplies – many businesses have really stepped up to the plate.
We have also seen businesses give back on a more human level.For instance, supermarkets opening early exclusively for the elderly or vulnerable and discounts and donations to NHS and other key workers are just some of the initiatives created by businesses to help those in need during lockdown.After all, it’s those small gestures which are so important.Examples include SME owners encouraging customers to shop at other small businesses to help them survive.
There have been instances of a real ‘blitz spirit’ over the last few months within the business community, as well as the wider community, pulling together to help.On the horizon Despite some positive signs and green shoots of growth in the UK’s GDP figures for May , Dun & Bradstreet’s latest analysis predicts that the UK economy will contract by 8.5% in 2020.This is especially significant to SMEs who generate 51% of all UK business turnover and will need the most support on the road to recovery.It’s likely that the economic recovery will be modest and gradual across the majority of sectors and our Country Risk team are maintaining a ‘deteriorating’ risk outlook with our rating for the UK remaining at an all-time low.
Our data has shown a worrying trend for worsening payment performance and the number of late payments is expected to increase in future quarters as the full impact of the economic contraction caused by the pandemic becomes clearer.When we surveyed UK SMEs prior to the outbreak towards the end of last year, we found SMEs were owed an average of nearly £75,000 at any one time in the last 12 months in late payments and over a third (34%) said timeliness of payments from customers had an impact on their future financial success which cannot continue as we try to rebuild our economy.Edward Thorne As social distancing measures are likely to stay in place for the foreseeable future and potential local lockdowns may be instigated, SMEs face further disruption and uncertainty as the end of the Brexit transition period approaches in December 2020.Analysing the data available will be key to assessing risk and establishing the right business continuity planning.
In it together Like many other businesses, when the pandemic escalated, Dun & Bradstreet looked at how we could do more to support others and how our data and analytics can help.Our data scientists have been working closely with government agencies to provide access to information on businesses, including size, location and industry type etc.
to help inform and target support efforts.We also offered free data and solutions to help businesses assess the impact of the pandemic on their supply chain or customer base.This includes ‘health scans’ and free access to credit data on their own business and others, information on customers and prospects, a disruption tracker and an COVID-19 Impact Index .For a small business with tight cashflow and few reserves, knowing if a customer is going to pay on time, or whether they are likely to be accepted for a much-needed loan can be vitally important to planning and survival.Data can also provide useful insight on the changing needs of customers, as well as identifying any new opportunities or prospects that may arise from this unprecedented situation.Although the impact of COVID-19 will lessen as business returns to some sense of normality, the way we do business and act as consumers is likely to have changed significantly.From increased home working to accelerated digitisation, enterprises are facing an irrevocably different environment as they work hard to re-start their businesses and survive the COVID-19 recession.
We all have a part to play as businesses and as individual consumers to support our small businesses through these tough times and help to kick start the economy again.Ultimately, while isolation and the lockdown has helped prevent the spread of COVID-19, working together is what will enable us to rebuild Britain’s small business ecosystem – and help our wider society continue to thrive in a post-COVID world.Consumer confidence in banks, credit card providers and investments remain stable as demand supercharges digital finance – new Toluna research reveals
Published linker 5 COVID -19 shines spotlight on the importance of savings – 22% of those aged 35-54 don’t have a financial safety net WHAT: The Toluna Financial Services Sentiment Indicator is a quarterly study exploring key financial services issues in the UK and the consumers they serve.
The latest research surveyed 1,137 respondents in August 2020.KEY FINDINGS: Confidence in the financial services sector remains stable despite the UK entering its worst recession on record 68% of respondents have stated that their confidence in financial services providers, such as banks, insurance companies, credit card businesses and investment firms, has remained the same since pre-COVID-19 Savers’ ethical concerns create the big wins for investors with a focus on sustainable business models that can withstand market shocks fuelling investment growth COVID-19 has accelerated already existing interest in sustainable investments as those aged between 18 and 34 demand more responsible and ethical products and services from organisations.69% of 18 – 34-year olds are interested in the environmental and societal impact of any investments they have or might have in the future, demonstrating just how important environmental and sustainability issues are to them.47% of those aged over 55 are also keen to understand the environmental and societal impact of their investments.
The pandemic has supercharged a huge shift in financial services firms becoming truly digital following demand from 18-34-year olds to manage their finances virtually but older people may need more support in transitioning to digital.More people are choosing virtual methods of banking with 75% using online banking, 44% mobile apps, 13% virtual payment cards and 8% video chats with financial services companies.18-34-year olds are significantly more likely than both the 35-54 and 55+ groups to use digital financial services.For example, 65% of those aged 18-34 are using mobile apps compared to 23% of those aged 55 and over.
When it comes to in person banking, 61% of those aged over 55 are still visiting their local branch compared to 46% of 18-34-year olds.When asked about their future banking preferences, it’s perhaps no surprise that the youngest age bracket (18-34 year olds) are significantly more likely than both the 35-54 and 55+ groups to prefer non-traditional banking methods (mobile apps, virtual payment cards, cryptocurrency and video chat).
For example, 58% of those aged 18-34 said they would prefer to use mobile apps when dealing with financial services providers as opposed to just 21% of those aged 55 and over.Nearly a quarter of those aged between 18 and 34 years old would like to use video chat in future when communicating with their bank, credit card provider or investment firm.Those aged 55 and over are significantly more likely to prefer ‘in person at a branch’ with 58% stating that this is their preferred way to bank, compared to 39% of 18-34-year olds.While people in the UK believe financial services companies support sustainable communities, they also think that banks, investment firms and other providers need to change their offering to help meet consumer financial needs Over half of 18-34 year olds (55%) believe banks, investment firms and credit card companies are helping to drive growth in sustainable communities.This percentage is over 20% lower among the 55 and over age bracket (32%).In terms of current financial products and services available: 1 in 4 (25%) of those aged 55+ currently state that their savings do not meet their current needs at all.
Over half (54%) of females claim to have no investments at all.COVID-19 has shone a spotlight on the importance of savings and having a financial safety net with those aged 35-54 the least likely group to have one in place: Over half of those surveyed said they save regularly (56%) 63% of people in the UK have a financial safety net Those aged 35-54 are the most likely to feel that they do not have a safety net, with 22% agreeing that they don’t have an adequate financial safety net in place.Other groups who are lacking a safety net include those who say their ‘confidence in the financial sector in the past 12 months has decreased’ (21% with no safety net) vs.those whose confidence level has increased in the last 12 months (5% with no safety net).
Unsurprisingly, those who have failed to pay a bill or loan/credit card repayment in 3 of the last 6 months are also the most likely to claim they have no safety net.Michael Worledge, Finance Sector Head, Toluna said: “Unlike in the aftermath of the financial crisis of 2008, the financial services industry currently has much higher levels of confidence from the public and is therefore in a better position to provide support.“Lockdown left many people with more money to put into savings that they would otherwise have spent on commuting, going out and retail.However, many consumers are now financially worse off, with no safety net to fall back on, and have been increasingly telling us they are looking to save more for a rainy day.Financial services companies continue to provide support and flexibility but should consider how they can leverage the relatively high levels of confidence to help consumers put in place their financial safety net, understanding and actioning changing customer sentiment.
“The public has had a massive nudge towards digital channels over the past few months.It’s not a surprise that older groups still prefer more traditional ways of dealing with financial services, and it does highlight a continued important role for branches.However, the pandemic has had the effect of enabling many people to be more comfortable managing at least parts of their finances digitally, and many want to do more than they can currently.
Providers will need to understand where and through which channels customers want to do more, accelerate their digital strategies, and ensure excellent customer journeys.” The Impact of an Asset Purchase Transaction Structure on FCPA Risk
Published linker 5 By David W.Simon , Partner and Chair of the Government Enforcement Defense & Investigations International Practice, Rohan Virginkar , Partner in the Government Enforcement Defense & Investigations Practice, Co-Chair of the Cannabis Industry team, James Peterson , Partner in the firms Private Equity & Venture Capital, Transactional & Securities and International Practices, Kristen Maryn , Associate and litigation attorney in the firm’s Government Enforcement Defense & Investigations and Busines Litigation & Dispute Resolution Practices, Stephanie Cash , Associate and business lawyer in the Transactions Practice.Despite the current worldwide economic displacement, many expect that cross-border mergers and acquisitions activity will ultimately rebound as companies use M&A as a critical driver of future growth and strategic planning, especially outside of the United States.[1] Many potential acquirers will look for opportunities which have become more affordable as a result of the current economic difficulties.
Other acquirers will look for opportunities to address a strategic need highlighted in the current environment, such as the need to reduce dependency on a single jurisdiction source of supply.Regardless of the factor driving M&A activity, one constant will be the heightened risk associated with acquiring non- or extra-U.S.targets, particularly the significant risks under the United States Foreign Corrupt Practices Act (“FCPA”).
The dynamic is a familiar: a U.S.company acquires a non-U.S.business or a U.S.-based business with international operations and gets more than it bargained for by also acquiring FCPA liability for pre-closing bribes paid by the employees or agents of the acquired entity.In one recent example, the Wall Street Journal reported that John Wood Group reserved $46 million to cover potential government settlements arising out of bribes paid by an engineering firm it had acquired in 2017.
[2] By now, experienced dealmakers understand there may be FCPA risks in an acquisition and have adopted procedures designed to identify and address these issues as part of the M&A diligence process.
Most acquirers ask the right questions, conduct risk-based probes of the target’s compliance program and operations, take steps to allocate the risk of compliance issues in the transaction documents and, in some circumstances, structure the transaction as an asset purchase rather than as a stock purchase or merger.Where FCPA issues are discovered in the due diligence process, there is an increasingly well-established playbook for addressing and mitigating the exposure created by these issues, including mitigating the resulting risks by taking advantage of the Department of Justice’s (DOJ’s) Corporate Enforcement Program (CEP), requiring voluntary self-disclosure by the target, and thus avoiding a carry-over enforcement action against the acquirer.[3] Mitigating FCPA risks can be trickier where the opportunity to conduct due diligence is limited or where bribery risk is identified, but no specific violation uncovered.Acquirers can still invoke the principles of the DOJ CEP to minimize risk, but that requires identification of violations in relatively short order following closing.
That is not always achievable.Under such circumstances, an acquirer should also consider another FCPA-risk mitigation strategy: structuring the deal as an asset purchase rather than a stock purchase or merger.
An asset purchase, when combined with the other M&A-related risk-mitigation strategies described below, is a preferred approach to mitigate FCPA and anti-corruption risk associated with the pre-closing activities of the target.Unfortunately, an acquirer should not assume that such a structure will provide a bullet-proof shield.
Deal Structure and Successor Liability – General Corporate Law Principles The asset purchase risk-mitigation strategy is founded on well-established corporate law principles.Under state and common law, the general rule is that an acquirer that purchases a business via the acquisition of assets can determine which, if any, of the target’s liabilities it assumes as part of the transaction.Thus, FCPA liabilities, like most other liabilities, can be left behind with the target.There are, of course, exceptions to the general rule, which exist by common law, statute, and general equitable principles, whereby asset acquirers are deemed to assume certain of the target’s obligations, such as those related to certain tax matters, environmental conditions, product liability claims and employee benefits claims.Whether an asset purchaser will be deemed responsible generally for the liabilities of the target will depend on the facts and circumstances of a given transaction and applicable state law and federal law.
Although the particulars may change based on the specific jurisdiction, the following factors are among those commonly considered by courts examining successor liability absent a specific contractual assumption of a liability: [4] Whether there was an implied assumption of the target’s liabilities such as by public disclosures as to the transaction or by performance of contracts which were not specifically assumed in the transaction; Whether there was a “de facto” merger of target and acquirer as a result of the asset purchase, which requires “continuity of ownership” (an equity owner of target becomes an equity owner of the acquirer in some manner), continuity of management, personnel and business operations of target, dissolution of target soon after closing and acquirer’s assumption of ordinary course liabilities as part of the purchase transaction; Whether the acquirer is a mere continuation of the target (followed in only a few states); and Whether the transaction was entered into fraudulently to escape the obligations of creditors of the target.These factors may also be considered by the DOJ and the Securities and Exchange Commission (“SEC”) in determining whether to separately investigate or charge an acquirer in connection with FCPA violations of the target.
Acquirers that are able to structure a transaction to avoid triggering the questions above in the affirmative will be better situated to challenge a future claim that they should be responsible as successors of the seller’s obligations, including FCPA-related liabilities of the target.The Enforcement Authorities’ Approach to Successor Liability Under the FCPA State corporate law notwithstanding, it is not clear that the DOJ and SEC will respect these corporate law successor liability principles in determining the extent of an acquirer’s liability for a target’s potential FCPA violations.Neither DOJ nor SEC have ever issued explicit public guidance on how the structure of an acquisition impacts enforcement of the FCPA.The Second Edition of the DOJ and SEC’s A Resource Guide to the U.S.Foreign Corrupt Practices Act (the “FCPA Guide”), [5] sets forth the agencies’ view that successor liability for FCPA purposes is based on the premise that “when a company merges with or acquires another company, the successor company assumes the predecessor company’s liabilities [where that company was subject to the FCPA’s jurisdiction].” [6] Nothing in the FCPA itself prevents an acquirer from limiting its successor FCPA liability by structuring the deal as an asset sale and by explicitly excluding FCPA liability.
However, the limited guidance promulgated by the enforcement agencies—and their aggressive pursuit of FCPA violations—suggests that they may not automatically follow state corporate law principles and that acquirers would be wise not to assume that acquisition structure alone will completely defeat the charges DOJ or SEC could seek in pursuing in an FCPA enforcement action.Nowhere in the FCPA Guide do the agencies note the practical and legal differences between stock purchases and mergers on the one hand, and asset purchases on the other.Indeed, the FCPA Guide contains no meaningful discussion of asset purchases at all.Instead, the agencies’ focus in the FCPA Guide is on the conduct of the parties and notes that enforcement action against successors will generally follow where (1) the violations are egregious or sustained, (2) the successor directly participated in the violations, or (3) the successor failed to stop the misconduct from continuing.[7] But the relatively simplistic ways in which the FCPA Guide discusses transactions – the hypothetical and generic description of “Company A [] considering acquiring Foreign Company” [8] fails to account for the differences in the types of M&A transactions generally, let alone the intricacies of complex cross-border transactions.
Rather than focus on the form of transaction as a means of mitigating liability, DOJ and SEC have instead consistently emphasized the benefits of robust due diligence, through which companies can identify and address any FCPA issues prior to closing.Remarks by senior DOJ officials have emphasized that DOJ does not want “the specter of enforcement to be a risk factor that impedes such activity by good actors,” [9] meaning that it does not intend for its enforcement program to discourage cross-border transactions.Ignoring the real-world business issues that often drive the form of a transaction, DOJ officials have instead focused on encouraging self-reports to enforcement authorities and cooperation with any subsequent government investigation of other actors.[10] As law enforcement and regulatory agencies, DOJ and SEC necessarily focus on the facts surrounding the misconduct under investigation.Corporate structure and provisions in purchase agreements will inform their analysis, but are rarely dispositive in and of themselves.
In observing the trends and patterns of FCPA enforcement actions in recent years, it would appear that DOJ and SEC have become more analytical in their approach – paying increased attention to factors such as indicia of control and corporate structure, rather than simply pursuing charges because “something bad happened.” Indeed, DOJ officials have recently acknowledged “that through acquisitions, otherwise law-abiding companies can sometimes inherit problems that are not of their own making.” [11] This acknowledgement suggests that DOJ, at least, considers successor liability less of a bright line than it had in the past.However, guidance from the agencies and their officials is of course not legally binding and companies should be wary of the practical limits of such guidance.
Despite the indications that successor companies may avoid liability for the acts of predecessor entities, and the trend in recent enforcement actions to pursue the predecessor entity rather than the successor, [12] it would be foolish to assume that this means that neither DOJ nor SEC will be interested in investigating potential historical violations.Where the predecessor entity no longer exists, DOJ will still attempt to resolve matters consistent with its programmatic and policy objectives: accountability, deterrence, and avoidance of ill-gotten gains.Thus, without a predecessor entity, the government may look to the successor, regardless of how the transaction was structured.This is particularly true if either agency has the impression that a transaction was structured in a way to specifically avoid FCPA liability.
Note the similarity between this approach and the general equitable principle applied in corporate law to consider “whether the transaction was entered into fraudulently to escape the obligations of creditors of the target.” Though successor liability law may limit exposure in many instances, the facts of any particular case will always control and DOJ or SEC will try to find a way to hold bad actors responsible via enforcement actions.Of course, acquiring companies can always litigate with DOJ and SEC, presenting the successor liability issues to a court for resolution.But, for a variety of reasons, this is rarely the course chosen by companies who find themselves in the crosshairs of FCPA enforcement authorities.Practice Tips Pages from the standard M&A best practices playbook can be applied to targets with increased FCPA and anti-bribery exposure, which should be identified through targeted pre-acquisition due diligence to assess anti-corruption risks.Where due diligence uncovers actual FCPA violations, acquirers should consider insisting on voluntary disclosure to take advantage of the DOJ Corporate Enforcement Policy and similar practices of the SEC.
Where no actual violation is identified but FCPA risks are present, acquiring entities should consider strong and detailed representations and warranties, indemnities, use of a newly-formed acquisition subsidiary to acquire the purchased assets and robust post-acquisition compliance integration planning to help ensure that problematic activities do not continue post-closing.There are also less standard clauses which may be added to a purchase agreement to help improve an acquirer’s position relative to pre-closing FCPA violations.First, “losses” which are covered by the indemnification provisions of the acquisition agreement should include the amounts of any actual fines or penalties imposed, the costs of any investigation, legal fees, forensic experts, as well as other possible expenses such as the costs associated with any compliance monitoring or reporting DOJ or SEC may require as part of resolving an investigation and compliance program remediation.It is also important that post-closing covenants accommodate payment and conduct obligations to cover additional investigations and disclosures to governmental entities if there are concerns that bribery-related conduct is still taking place as of the time of the acquisition.In addition, the purchase agreement should contain detailed covenants which describe how the parties will respond to any questions, investigations or claims, including how each party will assist with responding to a claim and whether joint defense will be considered.Where diligence identifies heightened concerns as to potential bribery or corruption issues of the target, an asset purchase affords an acquirer better protection from successor liability than a stock purchase or merger.But it should not be considered a complete defense.
At worst, such approach leaves the buyer in the same position as to these liabilities as if it had acquired the equity of the target entity.The steps above may provide some measure of protection, but it is important to note that the specifics of a given transaction may require a more bespoke solution or accommodate guidance provided by the U.S.government for a previously self-reported activity.And, the real trick with any acquisition and how an M&A practitioner delivers value, is to create a workable solution that mitigates risk without killing the deal or impacting the post-closing value of the target.[1] Mark Herndon & John Bender, What M&A Looks Like During the Pandemic , Harvard Business Review (June 10, 2020), https://hbr.org/2020/06/what-ma-looks-like-during-the-pandemic; Steve Krouskos, How Do You Find Clarity in the Midst of the COVID-19 Crisis? , EY (Mar.30, 2020), https://www.ey.com/en_gl/ccb/how-do-you-find-clarity-in-the-midst-of-covid-19-crisis; J.P.
Morgan, 2020 Global M&A Outlook: Navigating a Period of Uncertainty 6–15 (Jan.
2020).[2] Dylan Tokar, John Wood Group Earmarks $46 Million for Bribery Settlements , Wall Street J.(Mar.11, 2020), https://www.wsj.com/articles/john-wood-group-earmarks-46-million-for-bribery-settlements-11583884544.[3] U.S.Dep’t of Justice, FCPA Corporate Enforcement Policy, available at https://www.justice.gov/criminal-fraud/file/838416/download.[4] This article applies the test under New York law.
See New York State Elec.& Gas Corp.
v.FirstEnergy Corp., 766 F.3d 212, 227 (2d Cir.
2014); PCS Nitrogen Inc.v.
Ashley II of Charleston LLC, 714 F.3d 161, 173 (4th Cir.2013)(discussing the general rule under New York law for successor liability and stating, “[A]s at common law, a corporation that acquires the assets of another corporation typically does not acquire its liabilities, unless ‘(1) the successor expressly or impliedly agrees to assume the liabilities of the predecessor; (2) the transaction may be considered a de facto merger; (3) the successor may be considered a ‘mere continuation’ of the predecessor; or (4) the transaction is fraudulent.’”)(quoting United States v.Carolina Transformer Co., 978 F.2d 832, 838 (4th Cir.1992)); New York v.Nat’l Serv.
Indus., Inc., 460 F.3d 201, 209 (2d Cir.2006).[5] Criminal Div.of the U.S.
Dep’t of Justice and Enf’t Div.of the U.S.Sec.and Exch.
Comm’n, A Resource Guide to the U.S.Foreign Corrupt Practices Act (2d Ed.) available at https://www.justice.gov/criminal-fraud/file/1292051/download (updated in July 2020).[6] Id.at 29.[7] Id.at 30.[8] Id.at 32.
[9] Matthew S.Miner, Deputy Assistant Att’y Gen., U.S.
Dep’t of Justice, Deputy Assistant Attorney General Matthew S.Miner Remarks at the American Conference Institute 9th Global Forum on Anti-Corruption Compliance In High Risk Market Markets, 18-975 (July 25, 2018), https://www.justice.gov/opa/pr/deputy-assistant-attorney-general-matthew-s-miner-remarks-american-conference-institute-9th [hereinafter Miner Remarks].Id.; see also U.S.Dep’t of Justice, Justice Manual § 9-47.120, https://www.justice.gov/criminal-fraud/file/838416/download (updated Mar.2019).[11] Remarks by Matthew S.
Miner, supra note 8.[12] Id.at 30..