How should a company approach an investigation into bribery and money laundering?

Hypothetical:  

A whistleblower within a US film distribution company operating from the UK has revealed internally that certain contracts have been won over recent years through bribing senior executives of foreign television companies. Profits from those contracts have entered a UK bank account.

Key Considerations:

  • What is the status of the whistleblower? If the whistleblower is a known individual, such as a company employee, care will need to be taken to ensure appropriate protections are given to safeguard that whistleblower’s identity, whilst allowing the company to investigate the claims. Local law advice may be required.
  • Are there any immediate steps that the company should take to preserve relevant data or information? Often where there is a concern that data or information may be destroyed or removed, companies can put in place safeguards to image their computer systems, which may need to take place before the parameters of any potential document review have been determined. Local law advice may be required on the data protection laws where any data are held.
  • Will legal privilege apply to enquiries into the allegations? Different jurisdictions may apply different rules to determining whether or not internal investigation work product, including work product produced by outside counsel such as interview memoranda, is privileged. Early consideration of privilege may be essential to maintaining control of documents produced in the course of the internal investigation if enforcement authorities ultimately become involved.
  • Is the whistleblower report sufficient to trigger a suspicion that the profits in the UK bank account may be the proceeds of crime under English law? The proceeds from contracts obtained through bribery may be considered the proceeds of crime under English law. Where a UK company has sufficient information to be suspicious that it proceeds in its control may be the proceeds of crime, then it may risk committing a money laundering offence if it fails to notify the UK National Crime Agency regarding its suspicions. It is important to keep in mind the location of any potential proceeds of alleged criminal conduct where the profits of that conduct may still be identifiable, or are yet to be distributed to a company. In cross-border matters, consideration will also need to be given to whether or not a money laundering disclosure should also trigger engagement with other law-enforcement agencies, such as the UK Serious Fraud Office, or the US Department of Justice.

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