Nov. 9, 2022

DOJ, Private Practitioners and Past Monitors Discuss Best Practices and Trends in Corporate Monitorships

Far from its reputation as a punitive option, a corporate monitorship might be one of the best things to happen to a company ordered to make corrective investments to resolve criminal charges, according to monitoring experts who spoke at a recent panel discussion hosted by the Women’s White Collar Defense Association. “You are not going to hide those problems,” said Pam Davis, a partner at Winston & Strawn and a three-time FCPA government monitor. “So why not just run it at the beginning of the three years and have them help you work on it to get to the company to a point where the compliance program is right and you will end up being perceived as a company that wants to improve?” she asked. Davis was joined by Lisa Miller, Deputy Assistant Attorney General for Fraud and Appellate Sections, Criminal Division at the DOJ, Crystal Jezierski, former senior vice president of global ethics at Walmart and now senior managing director at Guidepost Solutions, Michele Edwards, a partner at StoneTurn, and Kristin Koehler, a partner at Sidley. The panel discussed the newest DOJ guidance on monitors and best practices for working with a monitor. See "Making the Most of a Monitorship" (Feb. 5, 2020).

Lessons From the Conviction of Uber’s Former CISO

In what may be the first case of its kind, former Uber chief security officer Joseph Sullivan was found guilty on October 5, 2022, of obstructing justice for “covering up” a 2016 data breach, failing to report it to the FTC and of actively hiding a felony. He could face up to eight years in prison and no other Uber executives were charged in this case. The Anti-Corruption Report spoke about the case with Discernible founder Melanie Ensign, who was the former head of privacy and security communications at Uber at the time of the incident, and who testified at the trial, and Orrick partner Joseph Santiesteban. This article includes their commentary in connection with our review of the facts of the case as alleged, its implications and practical advice around individual liability and incident response plans. See “NYC Bar Report on CCO Liability Calls for More Regulatory Guidance, Transparency and Cooperation” (Apr. 15, 2020).

The Legacy of Icarus: Assessing the Impact of Lava Jato in Brazil’s Anti-Corruption Landscape

Former (and now current) Brazilian president Luiz Inácio Lula da Silva’s conviction at the height of Operação Lava Jato (also known as Operation Car Wash) in 2017 reinforced the appearance of a shift toward individual and corporate accountability in Brazil, but in 2019, Miller & Chevalier attorneys discuss in this guest article, Lava Jato began to crash.  Lula walked free from jail in November 2019 and on October 30, 2022, won the presidency, defeating the incumbent, Jair Bolsonaro. The Lava Jato task forces shuttered their doors abruptly in the middle of Bolsonaro’s term. The Workers’ Party is now suing Judge Sérgio Moro for his actions in Lava Jato. The lead prosecutor for the Parana Lava Jato Task Force, Deltan Dallagnol, was fined for defamation against Lula. In the article, James G. Tillen, Gregory Bates, Francisco Grosso, Fabio Molar Albano de Aratanha and Julia Herring detail how Lava Jato shaped the Brazilian anti-corruption landscape, and ask whether those changes will survive. See “Mani Pulite, Lava Jato and the Road Ahead for Anti-Corruption Efforts in Brazil” (Jan. 22, 2020).

Navigating Evolving Social Media Risks

Elon Musk’s August 2018 tweet, “Am considering taking Tesla private at $420. Funding secured,” generated a blizzard of media coverage, a surge in Tesla’s stock price – and an SEC enforcement action against Tesla. The social media genie has been out of the bottle for at least a decade, and companies continue to struggle with how to manage it. A recent SCCE program examined the evolving nature of social media risks involving unionization-related activities, human resources issues, and industry-specific concerns; and offered tips for devising social media policies. The program featured Kortney Nordrum, vice president, regulatory counsel and CCO at Deluxe Corporation. This article distills her insights. See our two-part series: “Social Media: Navigating the Next Generation of FCPA Compliance” Part One (Mar. 4, 2015) and Part Two (Mar. 18, 2015). 

The Increasing Threat of Supply Chain Cyberattacks: How to Avoid Being a Statistic

Increasing globalization, a heavy reliance on outsourcing, growth of cloud computing and the transition to digitization and remote work since the COVID-19 crisis have each heightened the regulatory focus on third-party risk management (TPRM). In this guest article, Norton Rose Fulbright partner Daniel Pepper examines how a strong TPRM program, with vendor due diligence, helps organizations identify, remediate and manage cybersecurity and data privacy risks associated with outsourcing services, functions and processes to third parties. See “Sarah Powell at Pearson on Building a Third-Party Due Diligence Process” (May 26, 2021).

Foley Bolsters Government Enforcement Defense and Investigations Practice in Tampa

Jason Mehta, a former AUSA, has joined Foley as a partner in the firm’s government enforcement defense and investigations practice in Tampa. For insight from Foley, see “Glencore Pleads Guilty and Agrees to Pay $1.1 Billion to Multiple Authorities, But Can It Change?” (Jun. 22, 2022).