Aug. 5, 2020

Insights on Negotiating With the DOJ: The Filip Factors and Compliance Presentations

When negotiating a settlement with the DOJ, a company makes two big presentations to prosecutors: the Filip Factors presentation and a presentation about the company’s compliance program. The Anti-Corruption Report spoke with recent FCPA Unit alum Tarek Helou and veteran defense attorney Jeffrey Lehtman, both now partners at Wilson Sonsini, about the process of negotiating an FCPA settlement with government enforcers. In the first part of our conversation, they discussed the logistics of negotiations, the importance of building trust with the prosecutors involved and how to reach a final deal. In this second part, we take a close look at the Filip Factors presentation and the compliance presentation and how companies can use them to reach a favorable settlement. For the first part of the interview, see “Insights on Negotiating With the DOJ: How the Process Has Changed” (Jun. 24, 2020).

DOJ’s Kahn Discusses Layers of “Swiss Cheese” Compliance With AB InBev and UPS Experts

Good compliance officers ask similar questions about their programs, but there are “different good answers for each company and each compliance program,” Dan Kahn, Chief of the DOJ’s Fraud Unit, observed at a recent webinar hosted by AB InBev. Joined by Matt Galvin, global vice president for ethics and compliance at AB InBev, and Mohammed Azam, chief audit and compliance executive at UPS, Kahn discussed how companies can layer compliance to cover holes and what the DOJ is looking for when it evaluates compliance programs, including how pandemic-related budget cuts may affect that evaluation. See “Second Edition of the DOJ/SEC FCPA Resource Guide Spotlights U.S. Enforcers’ Controversial Legal Interpretations” (Jul. 8, 2020).

Achieving Spiritual Compliance Through a Monitorship

A settlement agreement between a company and a government agency that includes a requirement that a company hire a compliance monitor generally has the ultimate objective of ensuring the company’s compliance program can prevent, detect and respond to misconduct within the company in a timely and effective manner, but for companies with the right attitude, a monitorship can do even more. In a guest article, John Hanson, a managing director in BDO’s forensic investigation and litigation services practice and experienced compliance monitor, explains how a company that approaches a monitorship as an opportunity to improve itself and make positive change will look beyond the four corners of the court order or agreement and will embrace the spirit of ethical improvement, achieving what he calls “spiritual compliance.” See “Inside the Mind of Monitor John Hanson: Monitorship Insights and a Sneak Peek at the ABA’s Corporate Monitor Standards (Part One of Two)” (Feb. 4, 2015) and Part Two (Feb. 18, 2015).

A Comparative Look at COVID-19 Corruption Risk and Response in Latin America and the U.S.

Governments around the world are spending huge amounts of money to address the COVID‑19 pandemic, noted Demarest Advogados partner Eloy Rizzo at a recent seminar co-sponsored by his firm and law firms Buckley; CMS Rodríguez-Azuero; Marval; O’ Farrell & Mairal; and Von Wobeser y Sierra. The massive number of new contracts makes it much harder for governments to audit them, greatly increasing the risk of corruption, as does the relaxation of public procurement procedures. The speakers focused on the anti-corruption enforcement climates in Argentina, Brazil, Colombia, Mexico and the United States, the measures those nations have implemented to address the pandemic, the emerging corruption risks associated with those measures and how they are combating that corruption. See “The Fraud Triangle, Corruption and the COVID-19 Crisis” (May 27, 2020).

E.U.-U.S. Data Transfers After the Schrems II Decision

Responding to the cry for clarity that emerged after the Court of Justice of the European Union handed down its judgment in Data Protection Commissioner v. Facebook Ireland Ltd and Maximillian Schrems, the European Data Protection Board quickly addressed businesses’ most urgent concerns by answering frequently asked questions. The EDPB favored speed over substance in its initial guidance, although it did commit to further developing and complementing the guidance in the near future, Alston & Bird partner Wim Nauwelaerts argues in this guest article. Nauwelaerts reviews the impact of the so-called Schrems II decision, analyzes the EDPB’s FAQs and discusses what lies ahead for businesses that want to continue transferring data from the E.U. to the U.S. See “Privilege, Data Privacy and Human Resources in Cross‑Border Investigations” (Oct. 31, 2018).

Jim Barratt Joins AlixPartners Enterprise Improvement Practice

Barratt, a CPA, has more than 30 years of financial, accounting and investigative expertise in internal investigations, SEC enforcement proceedings, FCPA matters, internal controls and financial reporting issues. For more from AlixPartners, see “Minimizing FCPA Risks in Foreign Direct Investment Transactions” (Mar. 20, 2019).

Former SDNY Prosecutor Joins McGuireWoods

Jason Cowley previously served for 13 years as an Assistant United States Attorney in the Southern District of New York, and is a former Chief of SDNY’s Securities and Commodities Fraud Task Force. For more from McGuireWoods, see “As the U.K. Bribery Act Turns Seven, Experts Take Its Pulse” (Jul. 25, 2018).

Paul, Weiss Welcomes Partner to D.C. Litigation Practice

Jessica Phillips represents clients facing government investigations into alleged violations of the FCPA, export controls and trade sanctions, and other regulatory regimes. For more from Paul, Weiss, see “The Developing Anti-Corruption Battle Between the United States and China” (Mar. 20, 2019).