Between fast food, reality tv and jazz music, American innovations have surely made their mark on the world in the 20th and 21st centuries. But U.S.-style litigation? The thorough document discovery and retention tactics that define U.S.-style litigation had never caught on beyond the country's borders, and multinational corporations have had to play by a host of different rules depending on the forum.
Now, though, that paradigm is shifting. From Dubai to Beijing, more countries are adopting U.S.-style litigation. According to Tara Lee, partner and global chair of cross border litigation for DLA Piper, this change is a recent one, not even imaginable at the turn of the century.
“There is an increased awareness about document retention, document collation and document discovery sensitivity from overseas clients and foreign corporations to a degree that I haven't seen since I’ve been practicing law,” Lee says.
The reason, she says, is the extraterritorial reach of those companies practicing U.S.-style litigation. Thanks to the rise in prominence of the U.S. Foreign Corrupt Practices Act (FCPA) and U.K. Bribery Act, companies in all corners of the globe are now subject to potential investigations, resulting in more documents being produced. “Every corner of the globe, every corporation everywhere probably has at least had training—and might have found itself caught up in the net of—those two particular statutes,” Lee explains.
The numbers back up her assertions. According to statistics provided by Scott Paczosa of Navigant Consulting, 39 percent of companies with disclosed active FCPA investigations are headquartered outside the U.S. In addition, 99 percent of all disclosed FCPA investigations are located outside North America, with 47 percent of those investigations taking place in Asia.
Reaching across the world
When you’re dealing with the United States, according to Marcus Asner, a partner at Arnold & Porter who focuses on anti-corruption investigations, then you’re likely dealing with other foreign governments as well.
“Companies and lawyers like me are recognizing that these countries are talking to each other,” Asner says. “Even if you decide not to go to the authorities in Country X, they may come to you because the Department of Justice (DOJ) has reached out to them.”
But why would other countries listen to the U.S.? Because, as Asner explains, the benefits of this type of litigation are numerous for the government. “To actually do an FCPA investigation for the DOJ would be incredibly resource-intensive,” Asner says. “So, what they rely upon is people not knowing when they’re going to focus on a case. As a practical matter, if you are an American company and you’re publicly listed, what you’ll end up doing is saying, ‘I’m not going to risk it.’”
The cases that the DOJ has pursued have proven to multinational corporations that internal investigations are worth the trouble, explains Roger Burlingame of global litigation boutique Kobre & Kim LLP. “Companies certainly noticed the surge in enforcement, but initially there was some disbelief since the ties to the U.S. were often so remote,” Burlingame says. “Now, sophisticated global actors take U.S. global enforcement as a given. The reason is simple: Even if the U.S. hasn't surfaced, the threat of U.S. action is ever-present and if it is ignored, the consequences can be devastating.”
Five years ago, Lee said she believed she was “going to remain unconcerned about” U.S. style-litigation reaching a location with a radically different judicial system such as the Middle East. Now, however, U.S.-style litigation has reached even that corner of the globe. Paczosa found that Iraq ranked third among countries most frequently implicated in FCPA enforcement actions between 2010 and 2013, with 20 distinct actions within the country. Only Nigeria (30) and China (28) were implicated more often.
Litigation with benefits
With U.S.-style litigation spreading, in-house counsel are often forced to undertake more discovery and document retention initiatives than ever before. However, Lee says there may be some benefits to the spread of this type of litigation for those in house.
“I think for a lot of general counsel, it's a big burden when you have to reach out and get qualified, reliable, high-level counsel in, say, 16 countries. That's a lot to manage,” adds Lee. “The idea that any time they can consolidate that management, with one point of contact, is something that we were talking about five years ago a lot.”
Asner agrees and says that American businesses will ultimately benefit from this worldwide trend in litigation—but not without a few hiccups. “While there are growing pains now and instances where companies are having trouble competing because other companies are dirty, in the long-run, it's going to be good for American business, because American business is at the forefront of getting clean first,” Asner says.
Charting the spread
While the FCPA is the regulation du jour worldwide, Lee says that the real statute that litigators need to watch in reaagrds to the spread of U.S.-style litigation may not come from the U.S. at all.
“The U.K.'s Bribery Act is an incredibly broad and far-reaching statute, even more than the FCPA,” Lee explains. “It reaches out and touches everybody almost everywhere.”
As a result, adds Asner, the U.K. statute may be the one that in-house counsel should follow to guarantee the best compliance program possible. “I tend to advise companies that are working internationally that it's better to just go ahead and follow the Bribery Act, because that sets the highest possible standard,” Asner says. “You try and get the companies to meet an international standard of best practices so that if anybody comes knocking at your door, they can say, ‘Look, we’ve got this compliance program.’”
However, Burlingame notes, it's important to remember that the Bribery Act is a recent statute, having just received Royal Assent in April 2010. As a result, the U.S. is still the undisputed litigation leader until something changes. “The U.S. Department of Justice devotes tremendous resources to investigating and prosecuting FCPA cases around the world and is the undisputed global bribery enforcer,” Burlingame says. “Even though the Bribery Act gives the U.K. authorities more power, that power will remain largely theoretical until the Serious Fraud Office proves that it can bring (and win) these cases.”
Already, some corners of the globe are beginning to push back against the spread of U.S.-style litigation. In the U.K., the Jackson Reforms, enacted in 2013, attempt to limit discovery costs and encourage settlements. Meanwhile, the U.S. Supreme Court's January 2014 ruling in Daimler AG v. Bauman reaffirmed that general jurisdiction over a corporation is only proper if the corporation is “at home” in the state where legislation is pending, meaning that foreign companies cannot face legislation in state court simply for conducting business in that state if the incident occurs elsewhere.
But even those rulings may not stop the overall spread of U.S.-style litigation. As Asner says, “The efficiency of doing it this way is that you effectively enlist the corporation to self-examine. Efficiency is huge, and given that corporate footprints worldwide are increasingly important, I think the trend will be that the U.S. style of these investigations will continue.”
For in-house counsel, the days of dealing with U.S.-style litigation are not numbered. Just as companies are becoming more globalized, so are the regulatory rules governing their actions.