作者：J. Nicholas Bunch, Taryn McDonald, Austria Arnold
计划或正在美国开展收并购项目的中国企业需对该新规引起重视，美国海博国际律师事务所（Haynes and Bonne, LLP）的律师就该新规进行了详细解读，您可以阅读下文了解政策完整解读。
Deputy Attorney General Lisa O. Monaco recently announced the Mergers & Acquisitions Safe Harbor in connection with the DOJ’s increased focus on corporate crimes. The M&A Safe Harbor Policy allows corporations six months following acquisitions to make voluntary self-disclosures without risking criminal liability for the target company wrongdoing. The safe harbor incentivizes the acquiring company to timely disclose any misconduct uncovered during and after the closing of an M&A transaction.
Ultimately, treatment of the target company is dependent on the extent of the bad acts. Deputy Attorney General Monaco discussed “aggravating factors” including (1) executive involvement, (2) extremely high profits, or (3) criminal activity across business units. The presence of one or more of these aggravating factors does not overcome the presumption of a declination for the acquirer but will disqualify a target company from receiving a declination. Additionally, conduct that falls under the safe harbor will not be considered in the DOJ’s recidivism analysis. Thus, companies that have repeatedly self-reported misconduct post-closing to take advantage of the safe harbor will not be prohibited from receiving declinations. However, the safe harbor does not prevent enforcement by other regulatory authorities.
● Deal teams should include counsel experienced with internal and government investigations early in the due diligence process and as soon as issues arise. Close collaboration with experienced counsel leading up to closing may provide the acquiring company with clearer expectations of any future restitution or disgorgement. Investigations counsel can help assess the risks associated with self-reporting. Importantly, the DOJ safe harbor is not binding on any other enforcement or regulatory authority, including foreign, state, or local regulators. It also has no effect in a civil litigation.
● Counsel negotiating purchase agreements should consider provisions related to the Safe Harbor. For instance, building in appropriate protections in the purchase agreement, such as special indemnities, escrows, and specific representations and warranties. With the introduction of this safe harbor, companies should routinely consider contracting for the target company to pay any restitution or disgorgement occurring in response to self-reporting under this safe harbor. Likewise, with the limited window available to take advantage of the safe harbor, agreements may want to consider cooperation provisions and take into account the costs of increased due diligence, restitution, reputational risk, or liability.
● Companies should build and maintain strong internal compliance programs to help identify and remediate issues as they arise. The acquiring companies will have strong incentives to identify and disclose any of the target company’s wrongdoings within the six (6) month window and target companies with prior bad acts will not be immune from criminal liability if the aggravating factors are present.
● If an acquiring company fails to uncover a prior bad act within the reporting window or chooses not to self-report, it seems likely they may now also bear that criminal liability. Acquiring companies should place an increased emphasis on due diligence, strong internal compliance programs, and ensuring adequate protections in the purchase agreement (such as escrows, indemnities, and specific representations and warranties and potentially representation and warranty insurance).
● If, however, the wrongdoings are discovered prior to closing, some corporations may feel more comfortable continuing to close knowing they will not be held criminally liable for past mistakes of the target company they are acquiring. Acquiring companies should, however, take extra precautions if the prior wrongdoings have any potential ties to national security issues including ties with terrorist organizations or violations of embargos.
美国海博国际律师事务所驻上海代表处
美国海博国际律师事务所（Haynes and Boone, LLP） 是一家在《美国律师》（American Lawyer）排名前百的律师事务所,我们拥有19个办事处，近700名律师，执业范围涉及40个主要的法律领域。《财富》世界500强中20%的企业是我们的客户，我们能够为客户提供全方位的跨境法律服务。我们的客户服务优势，尤其是解决问题的敏锐度和与客户合作的能力，一直驱动着我们不断向前迈进。我们向大中华地区和其他亚洲的客户提供法律服务，且熟悉亚洲业务的运营方式、文化和风俗。我所对于客户开展亚洲业务以及亚洲公司进军美国和全球市场方面有丰富的经验.
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