May 15, 2019

Analyzing the DOJ’s New Evaluation of Corporate Compliance Programs

In perhaps one of the biggest recent steps toward increased clarity, the DOJ released significant revisions to its Evaluation of Corporate Compliance Programs (ECCP). The original version was released quietly in 2017 with no official announcement, little commentary and DOJ prosecutors often making a point of saying that it was not official guidance. The new version changes all that, appearing now on DOJ letterhead and expressly labeled as a “Guidance Document” with significantly more structure and commentary. We spoke to former Fraud Section prosecutors to hear their take on the new guidance. This first article looks at the new structure, as well as the fact that the guidance is now aimed at prosecutors. A companion article will look at some of the commentary included in the new guidance. For a side-by-side comparison of how the questions prosecutors should ask have changed, click here. See “Updates to the Corporate Enforcement Policy Attempt to Address Company Concerns” (Apr. 3, 2019).

Telefônica’s Settlement Demonstrates the Dangers of Lavish Hospitality Programs

Telefônica Brasil (Telefônica), the Brazilian subsidiary of Spanish broadband and telecommunications provider Telefónica S.A., recently paid $4.125 million to resolve SEC allegations that it provided Brazilian government officials with tickets to both the 2014 World Cup and the 2013 Confederations Cup in violation of the accounting provisions of the FCPA. The case against Telefônica, the third recent SEC matter involving hospitality programs for government officials at high-profile sports events, serves as a reminder that a quality compliance program must consider a plethora of issues. See “Five Compliance Failures That Led to FCPA Charges for BHP Billiton’s 2008 Olympic Sponsorship Program” (May 27, 2015).

A Side-by-Side Look at How the Revised ECCP Compares to the Original

The DOJ recently announced a total revision of its Evaluation of Corporate Compliance Programs (ECCP) guidance including significant changes in the questions prosecutors will ask about a company’s compliance program. To help show exactly what has changed, we have put together a side-by-side comparison of the old and new questions. An analysis of the new narrative guidance and the implications for the edits overall can be found here. See “DOJ’s Guidance Shows That Compliance Programs Still Matter” (Mar. 15, 2017).

Convictions, Clarity and Compliance: The Continued Evolution of Canadian Bribery Enforcement

Corruption enforcement is dominating the 2019 headlines in Canada. In a guest article, Mark Morrison and Michael Dixon, patners at Canada’s Blake, Cassels & Graydon, and John Fast, an associate at the firm, argue that even though Canadian bribery and corruption enforcement has lagged the U.S. and U.K., the recent successful bribery prosecutions of several executives show that enforcement in their country is maturing. At the same time, Canada is continuing to grapple with implementing a modernized approach to enforcement against cooperating companies, as shown by the recent public and political debate about the appropriate use of Remediation Agreements. See “DPAs Go North: Modernizing Bribery and Corruption Enforcement in Canada” (Jul. 11, 2018).

Navigating French Internal Investigations and Self-Reporting Post-Sapin II

In the less than two years since Sapin II came into force, France has demonstrated its clear intention to become a key enforcer alongside the DOJ and the SFO, entering into five deferred prosecution agreements with companies and levying corporate fines that total over €554 million. In this guest article, Dechert partner Matthew Cowie, senior associate Karen Coppens and associate Marie Perrault examine the benefits and the difficulties of cooperating with French authorities and analyze issues faced by foreign advisors when working in a French environment. See “What SocGen and Legg Mason Say About French and American Enforcement” (Jul. 11, 2018).

An International Take on the State of Compliance

At the Society for Corporate Compliance and Ethics’ 7th Annual European Compliance & Ethics Institute in Berlin, a panel of international experts discussed their mixed feelings about the current state of corporate compliance. Companies are making great strides in preventing corruption and related offenses, but many governments lag in enforcement, panel moderator Philipp Klarmann, vice president and head of investigations and anti-corruption at SAP, observed. The panelists included Gemma Aiolfi, head of compliance, corporate governance and collective action at the Basel Institute in Switzerland; Arturo Hernandez, senior director of global compliance at RPM International Inc.; and Cécilia Fellouse-Guenkel, a compliance consultant at Compliance for Good. See “Using a Code of Conduct to Drive Engagement With Compliance and Ethics” (Mar. 6, 2019).

Former Barrick Gold CCO Joins Paul Hastings in D.C.

Jonathan Drimmer is also a former Deputy Director of the Office of Special Investigations in the DOJ’s Criminal Division and he joins as a partner in the firm’s white collar practice.

Davis Polk Welcomes Partner Back to Litigation Department in New York

Greg Andres rejoins the firm after two years serving in the Special Counsel’s Office in Washington, D.C., investigating Russian government efforts to influence the 2016 presidential election.

Former AUSA and SEC Senior Counsel Joins Hogan Lovells in Los Angeles

Partner Ann Kim joins the firm’s investigations, white collar and fraud practice, where she focuses on internal investigations, criminal and civil regulatory matters.