The Foreign Corrupt Practices Act -- virtually unknown to most deal lawyers as recently as three years ago -- is now garnering weekly headlines, buzzing boardrooms and appearing as a major topic at legal conferences worldwide. We are, in the words of Assistant Attorney General Lanny Breuer, "in a new era of FCPA enforcement; and we are here to stay."

Given multimillion-dollar fines and jail time for individuals, U.S. executives and boards of directors are well advised to require satisfactory completion of robust FCPA diligence before completing any transaction in which the FCPA is implicated. Failing to do so exposes the buyer to successor liability risk arising from the acquisition of entities, revenue streams, regulatory permits, licenses, approvals and the like that have been tainted by bribery. Structuring a transaction as an asset deal does not solve the problem. Feasting from any fruit of a poisonous tree can transfer the taint to the acquiring company.

How can FCPA successor liability be mitigated? Rigorous legal and accounting FCPA diligence prior to executing a definitive agreement is required for any joint venture, acquisition, merger or other strategic transaction in which the target has any non-U.S. sales or operations; the target is a non-U.S. entity; or in the context of a joint venture, the operating vehicle is domiciled or does business in any non-U.S. jurisdiction.

More particularly:

Inform all parties that the proposed transaction cannot proceed without satisfactory completion of corruption diligence (addressing the FCPA, the U.K. Bribery Act 2010, if applicable, and local law).

Identify all non-U.S. jurisdictions in which the target does business, and understand the nature of that business. Create a risk profile and work plan based upon geographic footprint, dealings with regulatory bodies, state-owned customers, etc.

Utilize experienced FCPA accounting and legal resources to perform corruption diligence. Begin with the accountants. A detailed review of internal controls and accounting records identifies red flags and helps the legal team focus. Customize FCPA diligence. Different cultural, legal and operational issues exist around the world -- know what they are.

Detailed FCPA legal checklists should be utilized, but in conjunction with oral interviews. Written requests should seek documentation, not narrative responses that may contain unprivileged and discoverable admissions of crimes. High-level in-person or telephone interviews must occur addressing corruption risk and all issues identified from the documents.

Supplemental, culturally sensitive and jurisdictionally savvy probing by foreign counsel working at the direction of U.S. FCPA counsel works well.

Expect corruption issues. Bribery is systemic in emerging markets especially. Don't overreact; obtain advice from seasoned FCPA counsel and understand what is required to proceed with the transaction.

Note that FCPA successor liability may arise from acquiring assets or equity of a foreign company that was never subject to the FCPA.

For counterparties subject to the FCPA, voluntary disclosure to the U.S. Department of Justice and/or Securities and Exchange Commission (as relevant) regarding prior corruption is sometimes advisable but not always necessary. A comprehensive and informed review of all facts and circumstances, options and potential implications is required.

Carve out tainted assets and make certain the management team you will inherit (1) is committed to compliance and (2) understands your zero-tolerance policy for violations, appreciating that anyone can be terminated and possibly criminally prosecuted if they violate the policy.

Provide intense FCPA training just before or after closing, monitor operations for compliance, and act swiftly to investigate, punish and remediate any violations if they ever occur.

All company executives need to communicate the importance of complying with the FCPA, including in strategic transactions, even if that means losing business or walking away from a deal. But deploying a thoughtful and sophisticated approach to FCPA compliance, including FCPA M&A diligence, enables U.S. companies to compete in high-risk jurisdictions, with less risk.

The alternatives are far less attractive: withdrawing from certain markets; continuing to do business there without protection from fines, prosecution and shareholder derivative lawsuits; or, perhaps worst of all, exposing your hard-won reputation to public scourge that will take years to overcome, requiring far more work and expense than targeted and timely FCPA diligence.

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George D. Martin is head of Faegre & Benson LLP's corporate group.