Responding to a Changing Environment
The international marketplace faces uncertainty in ways that could not have been comprehended only a few years ago. Tools for the management of political, economic and legal risks, developed and tested over time, no longer provide sufficient protection from emerging threats that appear without warning. Meeting the challenges of this environment, and using a full range of legal tools to maintain overall corporate security, demands new approaches and methods for managing risk. The law firm of Akin Gump Strauss Hauer & Feld LLP provides the depth of experience and versatility to anticipate threats at every level and to devise effective solutions.
How Akin Gump’s Global Security Practice Can Help
The challenge of maintaining corporate security, integrity and legal compliance is nothing new. Akin Gump has met this challenge with its clients for more than 50 years. From the firm’s earliest days one idea—that the law is a means for a free society to solve its problems—has guided our work. As new threats to our national life and the free marketplace have emerged, the law remains the most vital tool for meeting and overcoming new risks faced by government, business and individuals. Threats to corporate security do not always arise in traditional ways, and solutions to complex problems are seldom found in a single legal specialty. Akin Gump’s global security practice group was organized to devise solutions that draw from our complete resources. By responding with a team approach that integrates lawyers and other professionals from multiple disciplines and offices, the global security practice group provides clients with the knowledge that their needs will be served by skilled practitioners with the highest professional standards.
Food Safety and Bioterrorism
The global nature of the agriculture market guarantees that food safety will play a central role in our national security. In fact, many food companies are on the front lines of the campaign against bioterrorism.
Evolving Challenges. Bioterrorism and product tampering pose substantial operating and legal risks to the food industry. Contamination of products can lead to enormous legal liability, as well as loss of market confidence. Companies must take steps to prevent product tampering, assure premises security and comply with any new food safety requirements.
Increasingly complex compliance issues and more government oversight are on the horizon. The federal government plans to increase the number of food inspectors and expand the powers and responsibilities of the many federal agencies charged with food safety missions and securing the country’s borders, including the U.S. Customs Service, the U.S. Coast Guard, the Food and Drug Administration, and the Department of Agriculture.
While the administration is moving ahead with new regulatory requirements, Congress is likely to consider statutory changes, some of which may be much broader than responding to the threat of bioterrorism. Companies should seek to play an active, constructive role, working with members of Congress and senior administration officials to ensure that they are aware of the scientific and practical considerations that will be critical elements of new food safety measures.
Bioterrorism threats raise new and complex challenges for protecting customer confidence, brand loyalty and investors. A bioterrorist attack against even a single food company would have serious ramifications for the entire industry. Therefore, companies must have crisis management plans in place to facilitate immediate response to any crisis in order to reassure government regulators, customers, investors and the media.
Prevention and Response. Akin Gump has assembled a team that can provide the legal, government affairs, security and crisis management knowledge and skills companies need to meet and overcome new challenges.
Money Laundering and Law Enforcement
Few transactions of any consequence occur anywhere in the world without some contact with the United States. For more than three decades, the U.S. government has used this advantage to combat organized crime, the global narcotics trade, domestic and foreign political corruption and, most recently, international terrorism. On October 26, 2001, the president signed into law the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001. Under this new legislation, criminal laws that punish money laundering, as well as the authority of the Treasury Department to impose antimoney laundering penalties, have been strengthened dramatically. At the same time, through a series of executive orders, the international sanctions programs of the State and Treasury departments—particularly those aimed at fighting terrorism—have been expanded.
Compliance. Establishing a comprehensive compliance system is the most effective way to reduce the risk that corporate accounts, transactions or business units may be unwittingly used to violate the law. Akin Gump lawyers and consultants have developed and implemented a wide range of corporate compliance programs and have trained employees in their operation throughout the United States and around the world. Whether the focus is on anti-money laundering laws, campaign finance regulations, the Foreign Corrupt Practices Act, economic sanctions programs, or the federal bribery and gratuity laws, there is no substitute for time-tested experience and effective legal compliance.
Internal Investigations. The ability to identify and report facts is central to an effective public and legal response to allegations of misconduct at every level of corporate management. Internal investigations provide a critical tool for corporations to isolate and analyze quickly key evidence and make critical decisions. Akin Gump litigators—including more than a dozen former Department of Justice prosecutors—have extensive experience and skill in conducting effective internal investigations in complex cases worldwide.
Akin Gump’s Defense Practice. When vigilance and compliance are not sufficient, the solution is often found in the tools of legal advocacy. Whether responding to an active government investigation, negotiating a fair disposition of civil or criminal charges, or trying cases in courts throughout the nation and before international tribunals, Akin Gump litigators know the process and offer a record of effective advocacy. In facing the threat of adverse U.S. government action anywhere in the world, Akin Gump clients are able to conduct their business affairs every day secure in the knowledge that though they may sometimes face the unexpected, they will never be unprepared.
Disaster Recovery and Mitigation
In recent years, disaster recovery and mitigation have taken on added importance. Under the rubric of “Homeland Security,” federal agencies will fundamentally alter the way they do business, and legislative authorities will expand their purview as they face new threats. As a result, companies must act to minimize the risks of these emergent threats and be prepared to react quickly and comprehensively should disaster strike.
Disaster Recovery. Akin Gump’s disaster recovery and mitigation practice includes skilled lawyers and consultants with experience at the relevant federal agencies and their congressional oversight committees. We are able to keep clients up to date on the evolution and development of “Homeland Security” efforts and, should the need arise, guide them through the complex process of recovery and post-disaster mitigation.
Every disaster presents a new set of challenges. Our firm’s approach is to assess the scope of the disaster, identify our clients’ specific losses and develop a customized strategy to ensure a speedy and comprehensive recovery. We recognize that, as part of this strategy, it is essential to address both short-term emergency issues and long-term rehabilitation and appeals issues.
Coordination with the Federal Emergency Management Agency (FEMA) and its complex recovery process is crucial. However, though FEMA is the principal agency involved in disaster recovery, our experience has shown that federal assistance is also available from programs at other federal agencies, including the departments of Health and Human Services, Justice, Transportation, and Housing and Urban Development, as well as the National Institutes of Health, the U.S. Army Corps of Engineers, and the Small Business Administration. Therefore, a successful recovery strategy often requires coordination across several federal agencies at once, in addition to efforts in Congress and at the state or local level.
Disaster Mitigation. Effective mitigation planning is essential to a comprehensive recovery strategy for handling any natural or manmade disaster. Unlike immediate recovery efforts that are reactive in nature and focused on the short term, mitigation strategies are necessarily forward looking and broader in scope. Entities are most likely to receive federal financial and planning assistance by understanding and planning for the legal limitations, political forces and financial restraints unique to their situation and by emphasizing the long-term benefits of their plan to both themselves and the surrounding community.
Insurance and Corporate Risk
The insurance and corporate risk lawyers at Akin Gump advise and counsel clients on their insurance-related business issues, risk assessment and risk transfer. We are engaged in insurance and risk assessment for U.S. and international clients that both cede and accept risk.
Risks and Opportunities. Akin Gump lawyers advise clients on their exposure and losses directly related to the threat of terrorism, as well as on how best to do business in a new era where risk assessment, management, transfer and coverage are more important than ever before. In this environment, heightened attention must be given to the wording of insurance coverage descriptions and definitions, which will be scrutinized more carefully than they were in the past.
While some businesses are deciding whether to seek risk transfer away from the traditional markets because of reduced capacity or coverage or because of increased prices and uncertainty, others see investment opportunities in new risk-taking enterprises forming offshore or domestically. Therefore, there will be an urgent need for new capital for global risk taking after the recent devastating losses are paid and as the cost of premiums begins to rise.
Akin Gump’s Insurance and Corporate Risk Practice. Our practitioners advocate for traditional insurance carriers and reinsurers in their regulated and investment activities, as well as for companies exploring self-insuring options and captive arrangements, representing each before both state and federal regulators. Our lawyers are also active in the ongoing debate about the role of the federal government in the funding of losses from terrorism. As a result, our lawyers are able to assess and pursue business challenges and opportunities that are emerging as the financial services world absorbs and responds to the losses precipitated by the events of the last few years.
Energy
As part of our nation’s critical infrastructure, the energy industry—including nuclear power plants and other electrical power generation and distribution networks, as well as oil and natural gas refining, processing and marketing facilities—has been thrust into the national security spotlight. As a result, energy industry companies must be more aware of the changing legal liability landscape, of existing regulatory and statutory requirements, and of new requirements already under development.
Nuclear Power. Although the federal government historically had extensive regulations in place governing nuclear power plant operations, safety and security, a reassessment of how to protect these facilities is underway in recent years on a priority basis. Therefore, an ongoing dialogue with regulators and public safety agencies is essential. The industry must remain vigilant against insider threats, and industry leaders must be kept up to date on emerging federal regulatory requirements concerning preparedness and security.
Oil and Natural Gas. There are numerous significant oil refineries, natural gas processing plants, liquefied natural gas facilities and pipelines throughout the United States, many of which are located in or near major population centers. With an increased risk of terrorist attack, oil and natural gas companies must be ahead of the curve and understand both their new legal duties and potential liabilities. Moreover, they must follow closely new federal safety requirements and be prepared for the added costs that inevitably follow. This is particularly critical as companies respond to pressure to expand domestic energy production and develop their facilities accordingly.
Electric Power Generation. Power plants, including dams and hydroelectric facilities, are an essential part of the U.S. economy, providing the power that drives industry and government and that lights our schools, homes and neighborhoods. A strike against a power plant would deal a blow to our nation’s critical infrastructure. Therefore, the power generation industry must stay abreast of legal and regulatory developments that may impose new duties and liabilities, and remain on top of trends in safety and security technology and preparedness.
Akin Gump’s Global Security Energy Capability. We can help clients monitor and influence legislative and regulatory developments in Congress and at the relevant federal agencies, including the Department of Energy, the Nuclear Regulatory Commission, the Federal Energy Regulatory Commission and the National Transportation Safety Board. We can also provide assistance in obtaining any necessary regulatory approvals related to safety requirements and cost recovery for security measures, whether required by the agency or implemented as a result of company-based initiatives.
Transportation
The transportation industry—already reacting to financial pressures from a weakening economy—faces increased safety concerns and expectations from the government and the general public. In this rapidly changing environment, legal and financial issues have emerged, and existing issues have an added sense of urgency.
Airports and Aviation. Airports are increasingly the focal point of our nation’s security activity and concern. They now face a host of new issues, including unfunded mandates resulting from congressional legislation and Federal Aviation Administration regulations; emerging insurance and project financing concerns; and the need for extensive background checks on employees, contractors and other service providers such as caterers, concessionaires and maintenance workers. Airports are moving to install promising new security technologies, including biometrics for access control and passenger screening, as well as expanded baggage security systems.
Commercial airlines are facing their most difficult time in decades. New federal legislative and regulatory obligations, civil and criminal liability concerns, employee background checks and thorough risk assessments, not to mention sharply reduced operating revenues, are all areas requiring immediate attention. Corporate aviation faces many of the same issues, and the shift in insurance and personal injury liabilities resulting from recent events will require small commercial, corporate and other private operators to confront a legal landscape of unprecedented complexity.
Mass Transit, Rail and Intermodal Transportation. The surface transportation industry—including commercial rail, trucking and shipping—is also facing new regulatory, liability and security issues. The Department of Transportation has organized the National Infrastructure Security Committee to review surface transportation security issues. Although many of these issues are similar to those affecting aviation, they involve different regulatory regimes and very different economics.
Akin Gump’s Experience and Knowledge. Akin Gump’s transportation practice brings experience, access and creativity to the legal issues facing the transportation community in the “new normal” of today’s security environment. The firm’s airports practice is recognized as a national leader, and our transportation practice lawyers have extensive experience with the key federal players, including the DOT, FAA, National Transportation Safety Board, Federal Railway Administration, Federal Highway Administration, Federal Motor Carrier Administration, departments of Justice and State, U.S. Customs Service, and U.S. Immigration and Naturalization Service, as well as with relevant congressional committees.
International Regulatory Compliance
Economic sanctions, export controls and customs enforcement are pillars of U.S. national security strategy. More than ever before, trade enforcement officials place a premium on careful compliance and high standards of corporate conduct in these areas of law.
Vigorous Trade Enforcement. The United States is taking a more aggressive approach to enforcement in all areas of international trade regulation. The departments of State, Commerce and Treasury, as well as the Customs Service, are policing the international trade activities of U.S. firms—including foreign subsidiaries—to ensure strict compliance with export/import laws. The Customs Service has placed all border ports on the highest state of alert, subjecting all international carriers and their inbound and outbound cargo to exacting and time-consuming declarations and inspections.
Important statutory and regulatory changes already have been made in the various U.S. trade regimes. The United States has implemented a new antiterrorism sanctions program with broad extraterritorial provisions. Prospects for additional legislative and regulatory changes are high.
These developments have raised government expectations and increased risks for U.S. and foreign companies with international business interests. In the current climate, companies confronted with enforcement action also face a heightened danger of damage to their reputations with government officials and, just as importantly, with the general public. Severe civil and criminal penalties, including monetary penalties, administrative debarment, denial of export privileges and forfeitures are available to the government as a response to violations.
Akin Gump’s Assistance: Sanctions, Customs and Export Compliance. Our lawyers have assisted clients in all aspects of international regulatory compliance. We monitor the evolving policy and enforcement climate in these areas and routinely counsel clients in a wide range of sectors on how sanctions, export control and customs laws affect trade and corporate transactions. We develop, customize, implement and audit internal control programs to ensure compliance with the Export Administration Regulations, International Traffic in Arms Regulations, Foreign Assets Control Regulations and U.S. customs laws. We also help clients address multilateral trade compliance regimes, including United Nations sanctions. In addition, we defend clients in administrative enforcement proceedings and related litigation initiated by the Customs Service; the departments of Commerce, State and Treasury; and other relevant federal agencies.
Workplace and Workforce Security
Achieving workplace and workforce security is a legal obligation for all employers. Achieving this goal, however, means having to navigate through a thicket of existing laws and regulations, some entirely unsuited for today’s evolving security challenges and the rapid pace at which change must be achieved.
Devising a Comprehensive Security Process. The legal duty to provide a safe workplace has expanded and been made more difficult since the September 11 terrorist attacks. Evacuation procedures, bioterrorism, threats to health and safety, violence in the workplace, surveillance, background checks, immigration issues and security-related work practices have all been pushed to the forefront. Employers must assess risks and develop policies and procedures for addressing them, including implementing specific protocols for handling threats, identifying key employees who will take the lead in emergencies and providing thorough security training.
Companies will, however, face legal challenges when taking necessary action. Policies and procedures must comply with federal, state and local laws and regulations, which may limit, to varying degrees, the extent to which they can be modified and the degree of employee cooperation that may be required. For example, privacy laws limit the extent to which surveillance and monitoring can be introduced into the workplace, and union contracts may impose barriers to change.
Employers that find themselves as potential or actual targets of violence or terrorism face enhanced risks. Employers in high-risk industries may encounter a skittish workforce, high absentee rates, and legal obligations to provide enhanced health and safety measures. Workers in these industries may need special training in crisis management, security and violence prevention. Unions may act to interfere with management decisions or force management into making costly, potentially unnecessary changes to work rules and practices.
Another area of great risk is discrimination and harassment. Minority groups and civil liberties organizations have raised concerns about racial profiling and other measures aimed at certain ethnic, racial or religious groups. Continuing unease over terrorism, combined with unfounded stereotypes, may result in discrimination in hiring, promotions or terminations and could lead to harassment by employees or customers.
Akin Gump - Providing a Stabilizing Presence. Akin Gump lawyers are used to handling crises. Our labor and employment lawyers can help clients meet their legal obligations by creating a safe and secure workplace through risk assessment, policy and procedure development, and training, while navigating the myriad legal challenges posed in this difficult work environment.
Defense and Government Contracting
The new imperatives of national defense and homeland security are transforming the market for a host of goods and services. Entire industries that previously served limited customers and enjoyed a narrow market are facing overwhelming demand from a transformed country. For many companies, the most promising new client is also the riskiest—the U.S. government.
Selling to the Government. From software to pharmaceuticals, biohazard consulting to transport vehicles, a broad spectrum of businesses are being abruptly and sometimes unwillingly conscripted into the ranks of the government contractor. Compliance and mastery of the esoteric rules of government contracting are suddenly critical to many businesses in the United States and abroad. The requirements of laws and regulations such as the Competition in Contracting Act, the Truth in Negotiations Act, sealed-bid procedures and negotiated procurement procedures will present new challenges to the many businesses supplying the national defense and security efforts.
Procurement and Policy. Akin Gump’s government contracts lawyers provide advice and representation in the formation, administration and litigation phases of contracts with or funded by the U.S. government. Our lawyers have a wealth of experience with supply contracts, from basic commercial items to sophisticated weapons; service contracts; construction contracts, including simple renovations and complex overseas projects; technology equipment and service contracts; and grants and cooperative agreements. Our government contracts lawyers and consultants assist clients with large-scale, long-term government purchases and investments and often work together with our legislative policy lawyers to develop appropriate strategies for showcasing equipment and technologies to relevant congressional committees and agency personnel.
Akin Gump’s Federal Contracts Practice. Akin Gump lawyers have extensive experience addressing and resolving issues relating to obtaining government security clearances for individuals or businesses. We also assist clients that have been wrongly denied a government contract or received unfair treatment in the procurement process, and we handle bid protests in the federal district courts, the Court of Federal Claims, the General Accounting Office and at the agency level.
Emerging Public Policy
The U.S. government’s renewed focus on global security issues has already spawned new legislation affecting airline security, money laundering, homeland defense and law enforcement policies. Congress will also be considering sweeping policy changes involving antiterrorism policy, defense policy, immigration, the economy and other matters related to the war on terrorism. Enhancing the country’s security, spurring recovery from disasters and ensuring that the country is prepared to meet future problems will occupy policymakers’ attention for the foreseeable future.
This dynamic policy setting presents risks and opportunities that global enterprises must manage effectively through real time monitoring and, when necessary, targeted advocacy. The ability to engage rapidly and effectively with policymakers in both the legislative and executive branches has become more important than ever.
An Integrated, Team-Based Approach. The public law and policy practice at Akin Gump is integrated throughout the firm’s offices in the United States and abroad. As part of a full-service law firm, the public law and policy practice is able to draw upon the experience of members of other practices at Akin Gump who may have substantive, day-to-day experience with the issues that lie at the heart of a client’s situation. This is the internal component of Akin Gump’s team-based approach: matching the needs of clients with the appropriate area of experience in the firm.
This team-based approach has an external element as well. In the course of representing hundreds of clients on thousands of matters, our public law and policy professionals have gained invaluable experience working with the entire range of related service providers, including media relations specialists, public opinion polling organizations, grass-roots consultants, local counsel and other outside professionals. Akin Gump is able to help clients evaluate the need for additional professional services, recommend professionals best suited to a case or task and seamlessly coordinate the assembled professional team.
Experience at the Highest Levels. Akin Gump has a dedicated team of more than 40 professionals who handle public policy representation before key state government agencies and legislatures, foreign governments and multilateral organizations. Our experience dealing with Congress on myriad legislative policy issues and congressional investigations is of particular relevance to the new focus on global security. Experience at the highest levels of government is the hallmark of Akin Gump’ public law and policy practice. In the Washington, D.C., office, the public law and policy practice includes a former cabinet secretary, former members of Congress and former U.S. ambassadors, as well as key congressional staff members, committee counsel and other professionals.