The Anti-Corruption Report

The definitive source of actionable intelligence covering anti-corruption laws around the globe

Articles By Topic

By Topic: Internal Investigations

  • From Vol. 7 No.14 (Jul. 11, 2018)

    Common Hang-Ups in Cross-Border Due Diligence and Investigations

    A successful cross-border due diligence or investigatory effort depends upon planning the process well and handling interactions with various stakeholders with sensitivity. During a recent panel at the 6th Annual European Compliance & Ethics Institute, Ann Sultan, counsel at Miller & Chevalier, and Patrick Garcia, Group Compliance officer at VEON, shared their approaches to transnational investigations and discussed what to do when things do not turn out quite as anticipated. See also “Compliance Experts From Altria, Noble Energy and HP Share Corruption Investigation Best Practices” (Sep. 10, 2014).

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  • From Vol. 7 No.10 (May 16, 2018)

    Deciphering De-Conflictions: An Interview With WilmerHale’s Kimberly Parker

    When “de-confliction” entered the ABAC lexicon a few years ago with its brief mention in the Pilot Program, some practitioners were left wondering what exactly that meant in the context of internal investigations. Government statements on the topic leave many questions unanswered. While it helps to understand the etymology of the word – a military term first used in the 1970s to describe efforts to reduce the risk of collisions on, say, a battlefield between two entities on the same side – it helps even more to have someone who is knowledgeable about the de-confliction process in the FCPA context explain how it all works. The Anti-Corruption Report spoke to Kimberly Parker, a partner at WilmerHale, about how exactly that “stand-down” process works in practice. See our three-part series on the DOJ’s FCPA Corporate Enforcement Policy: “What’s New and What’s Not” (Jan. 10, 2018); “How Important Is the Presumption of Declination?” (Jan. 24, 2018); and “Cooperation and Compliance Expectations” (Feb. 7, 2018). 

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  • From Vol. 7 No.8 (Apr. 18, 2018)

    Crafting and Delivering Effective Upjohn Warnings

    One of the many challenges for lawyers conducting anti-corruption investigations is how to give sufficient Upjohn warnings while still encouraging employee candor when gathering information. Beginning an interview with a solemnized speech reminding an employee that the company holds the privilege may not always generate the sort of disclosure a lawyer is seeking during the rest of the discussion. The Anti-Corruption Report talked to practitioners for their suggestions on how best to go about giving Upjohn warnings and what to do if an employee balks when receiving one. See “Lessons on Litigation Privilege in Internal Investigations from the U.K.’s Bilta v. Royal Bank of Scotland Case” (Mar. 21, 2018).

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  • From Vol. 7 No.8 (Apr. 18, 2018)

    ACR Program Examines FCPA Enforcement and Local Anti-Corruption Efforts in China and Singapore

    Asia has long been the most active region for FCPA enforcement actions and investigations. China, which over the past nine years has had more than three dozen actions involving conduct in the pharmaceuticals, technology, manufacturing and other industries, has recently launched its own anti-corruption regime with a new super agency to enforce it. Additionally, the Keppel Offshore & Marine settlement (involving a decade of bribery committed by the world’s largest oil-rig builder) in late 2017 brought Singapore into the anti-corruption spotlight. During a recent program presented by The Anti-Corruption Report, local experts examined FCPA enforcement as well as local anti-corruption efforts in China and Singapore, challenges in conducting internal investigations in China, and the role of whistleblowers in the region. See “Practitioners Take the Pulse of Anti-Corruption Compliance and Enforcement in China” (Mar. 15, 2017).

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  • From Vol. 7 No.7 (Apr. 4, 2018)

    A Guide to Identifying and Working With Quality Local Counsel

    Operating internationally requires a company to identify and retain a multitude of advisors. According to Suzanne Rich Folsom, a corporate governance and ethics expert and the former general counsel, chief compliance officer and SVP of government affairs and global public policy at United States Steel Corporation, “any corporation seeking to compete lawfully in today’s dynamic global economy will be faced with the need to retain local counsel to assist in addressing a host of matters.” This is particularly true when a company is conducting routine anti-corruption compliance measures, such as building compliance policies or investigating potential corruption violations. The Anti-Corruption Report spoke with in-house counsel and their advisors about the best strategies for identifying, hiring and managing local counsel. See “The Curious Case of “All Relevant Facts” in Internal Investigations” (Mar. 7, 2018).

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  • From Vol. 7 No.7 (Apr. 4, 2018)

    Any Decrease in FCPA Enforcement Under Trump Will Be Overshadowed by International Enforcement, Experts Predict

    International enforcement of anti-corruption laws is on the rise, FCPA practitioners speaking at a recent event at George Washington University Law School said. They agreed that despite a potential decrease in enforcement under the Trump administration, the pace of enforcement beyond U.S. borders is significant enough that companies should remain vigilant. This article examines the implication of enforcement trends and the practical takeaways for companies conducting internal investigations. See “Massive Telia Settlement Indicates International Cooperation Will Continue Under New Administration” (Oct. 4, 2017).

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  • From Vol. 7 No.6 (Mar. 21, 2018)

    How Will the GDPR Affect Due Diligence?

    Among the many provisions of the GDPR with which companies are grappling is Article 10, which affects the processing of personal data relating to criminal activity. This kind of data collection is a core part of anti-corruption due diligence, as well as investigations. “The situation will basically put companies subject to both the GDPR and non-E.U. laws between a rock and a hard place,” Alja Poler De Zwart, counsel at Morrison Foerster in Brussels, told The Anti-Corruption Report. “Do you continue to comply with the FCPA and risk violating the GDPR, or do you scale your FCPA vetting back in fear of the GDPR fines and instead risk the wrath of the U.S. Department of Justice?” We discuss how companies can approach Article 10 and the patchwork of applicable member-state laws. See “New Criteria for Employee Monitoring Practices in Light of ECHR Decision” (Oct. 18, 2017).

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  • From Vol. 7 No.6 (Mar. 21, 2018)

    Lessons on Litigation Privilege in Internal Investigations from the U.K.’s Bilta v. Royal Bank of Scotland Case

    In the recent RBS matter, the High Court of England and Wales held that certain documents created by RBS during an internal investigation conducted to prepare for a potential dispute with the U.K. tax authority were protected by the privilege. The decision was a sharp contrast to the High Court’s prior holding in the ENRC case where it determined that privilege was unavailable for documents created during a similar investigation. In a guest article, Boies Schiller partner Matthew Getz and associate Prateek Swaika discuss the implications of the decision and offer practical tips for preserving privilege in wake of the High Court precedents. See “No Need to Overreact: Protecting Privilege in the U.S. and U.K. After the ENRC Decision” (Jun. 21, 2017).

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  • From Vol. 7 No.5 (Mar. 7, 2018)

    The Curious Case of “All Relevant Facts” in Internal Investigations

    Twice in the last two years, a privilege paradox has surfaced in DOJ corporate enforcement guidance. The “all relevant facts” requirement of both the Yates Memo and the recently released FCPA Corporate Enforcement Policy have forced companies to, once again, contend with competing expectations of safeguarding privilege while remaining eligible for full cooperation credit. In a guest article, Baker Botts partners Bridget Moore and Kyle Clark, and associate Christine Ingram, examine the policies and provide practical approaches for preserving privilege for employee-witness-interview memos in the post-Yates world. See “Maintaining Work Product Protection During Investigations After the Herrera Decision” (Feb. 7, 2018).

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  • From Vol. 7 No.3 (Feb. 7, 2018)

    Maintaining Work Product Protection During Investigations After the Herrera Decision

    A recent decision in the Southern District of Florida calls into question whether disclosing information about an internal investigation to the government results in a waiver of the work product protection. In SEC v. Herrera, the court ordered a law firm to disclose the case notes and memoranda it created while conducting an internal investigation on behalf of General Cable Corp. In a guest article, Baker Botts partners Bridget Moore and Seth Taube, and associate Joseph Perry, discuss the implications of the Herrera decision and provide practical guidance for how companies and their advisors can maintain privilege in its wake. See The Anti-Corruption Report’s three-part series on protecting attorney-client privilege and work product while cooperating with the government: “Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017); “Cooperation Benefits and Risks” (Feb. 15, 2017); and “Implications for Collateral Litigation” (Mar. 1, 2017).

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  • From Vol. 6 No.23 (Nov. 29, 2017)

    How Compliance Officers Handle Privilege

    From conducting interviews to presenting results to the government, attorney-client privilege and work-product protection loom large for compliance officers and in-house counsel involved in internal investigations. At the 2017 Women, Influence & Power in Law conference, Amy Riella, a partner at Vinson & Elkins, Ilona Korzha, counsel, litigation and consumer finance practices at Sprint, Alice Eldridge, vice president and chief legal counsel at BAE Systems Platforms and Services and Jennafer Watson, senior counsel and director of compliance at Oxy, discussed the privilege challenges they face daily and how they overcome those challenges. See also our three-part series on protecting attorney-client privilege and work product while cooperating with the government: “Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017); “Cooperation Benefits and Risks” (Feb. 15, 2017); and “Implications for Collateral Litigation” (Mar. 1, 2017).

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  • From Vol. 6 No.22 (Nov. 15, 2017)

    Employee Discipline for Anti-Corruption Issues: Investigation and Documentation to Smooth the Discipline Process (Part Two of Three)

    Before a company can discipline an employee for corruption or bribery, it first has to determine whether, and to what extent, discipline is warranted. Investigation is a familiar part of anti-corruption remediation, but special attention must be paid to gather evidence in a way that it can support a discipline action later. In this second article in The Anti-Corruption Report’s three-part series on employee discipline, we discuss techniques for forward-thinking evidence-gathering, including the thorny issue of protecting privilege while building a record. The first article in the series addressed the value of setting expectations for discipline in advance and how to apply discipline consistently in the face of inconsistent local employment laws. The final article will discuss how to promote institutional due process. See “Employee Discipline and Internal Investigations After the Yates Memo” (Nov. 9, 2016).

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  • From Vol. 6 No.22 (Nov. 15, 2017)

    Eight Tips for Performing Effective Corruption Investigations in Brazil

    The amplified scrutiny of corporate conduct in Brazil after Operation Car Wash has naturally led to a greater number of corruption-related investigations in that country. In a guest article, Eloy Rizzo, a partner at KLA – Koury Lopes Advogados, and Leah Moushey, an associate at Miller & Chevalier, provide a list of key considerations to help companies and outside counsel overcome challenges that can arise in Brazilian investigations. See “Ten Tips for Performing Effective Anti-Corruption Investigations in India” (May 24, 2017).

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  • From Vol. 6 No.20 (Oct. 18, 2017)

    New Criteria for Employee Monitoring Practices in Light of ECHR Decision

    The Grand Chamber of the European Court of Human Rights has laid out new criteria for national courts to consider when evaluating whether companies have safeguarded employees’ right to privacy. The court sided with an employee who claimed his privacy rights were violated when his messages were recorded. Some companies operating in the 47 member states may want to revisit their policies on monitoring communications, experts told The Anti-Corruption Report. We analyze the implications of the decision and how it aligns with other national laws. See “Balancing Employment Law Considerations During Corruption Investigations” (Sep. 20, 2017).

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  • From Vol. 6 No.18 (Sep. 20, 2017)

    Balancing Employment Law Considerations During Corruption Investigations

    Internal investigations invariably require getting information out of employees, and all of those interactions – particularly interviews, data collection and discipline – can raise employment law issues. The Anti-Corruption Report recently spoke with Littler’s Trent Sutton, who specializes in the intersection between employment law and international corruption investigations, about how a company can address these competing obligations. Sutton provides actionable insight on how to properly train in-house investigators to spot employment issues and how to manage those that arise throughout an investigation. See “Ten Tips for Performing Effective Anti-Corruption Investigations in India” (May 24, 2017).

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  • From Vol. 6 No.17 (Sep. 6, 2017)

    A Bribe By Any Other Name: 101 Ways People Refer To Corruption

    What do mangoes, cheese bread and bonbons have in common? Aside from being delicious treats, they all can be used as euphemisms for a bribe. Less creatively, fraudsters may also discuss providing a “boost,” a “courtesy payment” or a “motivation amount.” Being able to spot these synonyms for corruption is a critical part of anti-corruption compliance, whether it be while reviewing expense reports, conducting pre-acquisition due diligence or investigating potential corruption. This checklist, including 101 ways to refer to a bribe, is a useful starting point for anyone tasked with reviewing documents for evidence of potential corruption. See “Ten Tips for Performing Effective Anti-Corruption Investigations in India” (May 24, 2017).

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  • From Vol. 6 No.12 (Jun. 21, 2017)

    No Need to Overreact: Protecting Privilege in the U.S. and U.K. After the ENRC Decision

    Companies around the world conduct internal investigations to detect and remediate potential wrongdoing and often rely on privilege to keep their findings private. The recent United Kingdom case of Serious Fraud Office v Eurasian Natural Resources Corporation Limited sharply limits the scope of legal privilege in internal investigations and further divides the U.K. approach to privilege from the approach in the U.S. Yet, Ropes & Gray partners Amanda Raad, Kim Nemirow and Marcus Thompson, along with their colleagues Mair Williams and Tom Littlechild, advise companies not to panic in this guest article. Rather, they suggest three concrete steps companies can take to protect information uncovered during investigations. See “Rolls Settlement Illuminates SFO Expectations for Cooperation and Compliance” (Mar. 15, 2017).

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  • From Vol. 6 No.11 (Jun. 7, 2017)

    The Practical Privilege Implications of the ENRC Decision 

    The recent High Court of England and Wales’ judgment in The Serious Fraud Office v Eurasian Natural Resources Corporation dealt primarily with the question of whether documents produced during an internal investigation (in anticipation of a Serious Fraud Office investigation) were protected by privilege under English law. In a guest article, Matthew Getz, a partner in Boies Schiller Flexner’s London office, and associate Michael Jacobs analyze the ever-diminishing scope of legal professional privilege and detail practical considerations that parties should now bear in mind when creating documents in contemplation of regulatory investigations. See “What Compliance Lessons Can Companies Learn From the SFO’s First Two DPAs?” (Sep. 28, 2016).

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  • From Vol. 6 No.10 (May 24, 2017)

    Regional Risk Spotlight:  Rafael Jimenez-Gusi Discusses Corruption Perceptions and Compliance Expectations in Spain

    By passing amendments to its anti-corruption laws in 2015, Spain placed itself at the vanguard of countries that are encouraging companies to implement strong compliance programs. The FCPA Report recently spoke with Rafael-Jimenez Gusi, a partner at Baker McKenzie based in Barcelona, about the new law, Spain’s current enforcement environment and what companies can do to take advantage of the country’s innovative compliance defense. See “Regional Risk Spotlight: Aisha Abdallah Discusses Corruption and Compliance Practices in Kenya” (Apr. 26, 2017).

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  • From Vol. 6 No.10 (May 24, 2017)

    Ten Tips for Performing Effective Anti-Corruption Investigations in India

    Doing business in India continues to present a compliance challenge for U.S. companies. Indeed, U.S. enforcement authorities recently announced three FCPA resolutions arising at least in part from conduct occurring in India: Embraer, AB InBev and Cadbury/Mondolez. In this guest article, David W. Simon, a partner at Foley & Lardner, and Sherbir Panag of Panag & Babu outline ten tips for conducting investigations in India and recommend search terms companies should use to catch important red flags. See “Foreign Attorneys Share Insight on Data Privacy and Privilege in Multinational Investigations” (Jun. 29, 2016).

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  • From Vol. 6 No.9 (May 10, 2017)

    Responding to Auditors’ Requests When Facing FCPA Allegations

    One of the issues that a company investigating an FCPA matter must face is whether and how to disclose the investigation in its financial statements. This challenge will often arise in the context of the company’s annual audit, when the company’s attorneys are asked about pending and threatened claims. A recent Strafford program provided an in-depth treatment of requests by auditors for information about potential claims and liabilities and best practices for attorneys responding to those requests. The program featured Maryann A. Waryjas, senior vice president, chief legal officer and secretary of Herc Rentals; Stanley Keller, of counsel at Locke Lord; Brian E. Kowalski, a partner at Latham & Watkins; and Alan J. Wilson, an associate at WilmerHale. See also “Experts from PwC Discuss Compliance Audits and Common Missteps” (Sep. 28, 2016).

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  • From Vol. 6 No.8 (Apr. 26, 2017)

    Managing Subsidiary Risks: Internal Controls (Part Three of Three)

    While subsidiaries continue to be a major source of corruption risk, parent companies have several tools at their disposal to mitigate that risk. This final article in our three-part Managing Subsidiary Risks series explores some of the strongest tools and controls – internal and financial – available to a parent company to prevent corruption at its subsidiaries. The first article discussed what steps companies can take when setting up new subsidiaries, either from scratch or through the acquisition of an existing company, to limit corruption risk and the second part of the series addressed leveraging strong communication and a culture of compliance. See “Rolls-Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption” (Feb. 15, 2017).

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  • From Vol. 6 No.5 (Mar. 15, 2017)

    Rolls Settlement Illuminates SFO Expectations for Cooperation and Compliance

    Rolls-Royce’s recent settlement with U.K., U.S. and Brazilian authorities was a key development in global anti-corruption enforcement. The case opens a window into what the SFO, now a major player on the field of anti-corruption enforcement, expects from companies both in terms of cooperation and remediation. That information may prove crucial for many multinational companies as U.K. enforcement continues to assert its dominance on the anti-corruption stage. See “Rolls-Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption” (Feb. 15, 2017) and “SFO Arrives in the Anti-Corruption Premier League With Rolls-Royce Settlement” (Mar. 1, 2017).

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  • From Vol. 6 No.4 (Mar. 1, 2017)

    Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Implications for Collateral Litigation (Part Three of Three)

    When a company conducts an internal investigation and cooperates with the government, collateral litigation can follow. To support their discovery efforts, litigants may try to argue, among other things, that the privilege and work product protection were waived as a result of the company’s cooperation with the government. This third and final installment in the three-part guest article series by Eric J. Gorman, a partner at Skadden Arps, and his associate, Brooke A. Winterhalter, analyzes strategies and legal arguments that companies may wish to consider as they seek to shield investigation materials shared with the government from third-party discovery requests in collateral litigation. For the first two installments in the series see “Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017) and “Cooperation Benefits and Risks” (Feb. 15, 2017).

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  • From Vol. 6 No.2 (Feb. 1, 2017)

    A New Era in FCPA Disclosure

    In the past few years, U.S. enforcement authorities have heightened their rhetoric surrounding voluntary and complete self-disclosure. New policies and rules issued by the government strongly encourage and incentivize disclosure in unprecedented ways. At the same time, an alarming increase in data leaks and the ever-present danger of whistleblowers threaten to reveal or force the disclosure of company information and secrets at every turn. In a guest article, Lara A. Covington, a partner in the Washington, D.C., office of Holland & Knight, and Lisa A. Prager, a partner in the firm’s New York office, explain that the net effect of these internal and external pressures is that U.S. companies have never faced more inducements to disclose potential FCPA violations nor higher risks of inadvertently disclosing them. See The FCPA Report’s three-part series on the DOJ’s Pilot Program: “Going Deep on the Fraud Section’s FCPA Pilot Program” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting?” (May 4, 2016); and “Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program” (May 18, 2016).

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  • From Vol. 5 No.25 (Dec. 21, 2016)

    Government and Defense Bar Perspectives on the New Weapons in the FCPA Arsenal

    The SEC and DOJ have new weapons in their arsenal to fight corruption. Increased personnel, coordinated global investigations and new forms of settlement are changing the face of FCPA enforcement, officials said during ACI’s 33rd International Conference on the FCPA in Washington, D.C. The FCPA Report talked to defense lawyers to gauge their reaction to the government’s statements, and how the government’s enforcement approach affects the advice they give companies. See our coverage of last year’s ACI panel, “Top FCPA Enforcers Discuss Evolving and Diverging Enforcement Approaches and the Defense Bar Responds” (Dec. 2, 2015).

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  • From Vol. 5 No.25 (Dec. 21, 2016)

    Navigating Data Privacy Laws in Cross-Border Investigations

    Conducting a cross-border investigation or performing global due diligence each has its own set of unique challenges, which only become more formidable when coupled with a formal anti-corruption inquiry. In the E.U. in particular, issues range from confusing and often conflicting privacy laws, to language and cultural barriers, to custodian access and local coordination. In a guest article, Deena Coffman and Nina Gross, managing directors at BDO, provide insight on the data privacy landscape in the E.U. and how to comply with competing demands during a cross-border investigation. See “Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three)” (Jan. 9, 2013); Part Two (Jan. 23, 2013); Part Three (Feb. 6, 2013).

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  • From Vol. 5 No.22 (Nov. 9, 2016)

    Employee Discipline and Internal Investigations After the Yates Memo

    Over the past year, the Department of Justice has reiterated and re-emphasized its focus on holding individuals accountable for corporate wrongdoing. For companies investigating potential FCPA violations, these mandates raise the stakes on the already complex issue of employee discipline. In a guest article, Paul Hastings partner Palmina M. Fava and her associate Mor Wetzler explain how companies must balance the need to promptly remediate and discipline wrongdoing with not depriving the company of access to employees before obtaining all of the facts needed to fully understand the issues. See “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two)” (Sep. 23, 2015); Part Two (Oct. 7, 2015).

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  • From Vol. 5 No.19 (Sep. 28, 2016)

    Managing Data Privacy Challenges in Performing Due Diligence and Internal Investigations in China (Part Two of Two)

    For companies doing business in China, understanding data privacy and cybersecurity requirements under Chinese law is critical. But once a company is familiar with the basic legal contours, more practical concerns move to the forefront. In this article, the second in a two-part series on China’s data privacy and cybersecurity laws, we share insights from practitioners working in China on how companies can manage the practical challenges of running their businesses while staying on the right side of the law. The first article in the series explained the basic structure of the data compliance regime in China, including the criminal law, civil law, industry regulations and the draft Cybersecurity Law. See also “The Emperor Is Far Away: The Evolving Nature of Third-Party Risk in China” (Sep. 9, 2015).

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  • From Vol. 5 No.18 (Sep. 14, 2016)

    There’s a Problem, Now What? Philip Urofsky of Shearman Explains the Logistics of Self-Reporting

    Making the decision to self-report can be agonizing, as can a government investigation. But what happens in the interim? Once a company has identified an anti-corruption issue, conducted a preliminary investigation and determined that alerting the authorities may be prudent, how should it go about actually self-reporting? In a recent conversation, Philip Urofsky, a partner at Shearman & Sterling, walked us through the steps of self-reporting and discussed several ways companies can make the process as painless as possible. See “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting?” (Part Two of Three) (May 4, 2016).

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  • From Vol. 5 No.15 (Jul. 27, 2016)

    Regional Risk Spotlight: What Companies Need to Know About Internal Investigations in South Africa

    Japanese conglomerate Hitachi recently paid a $19 million penalty for corruption related to its work with a local partner in South Africa. That case highlighted the FCPA risks associated with South Africa’s local content requirements, but the country also has rigorous anti-corruption, anti-terrorism and data privacy laws that can further influence a company’s assessment of corruption risk and how it performs internal investigations. The FCPA Report recently spoke with Vlad Movshovich and Meluleki Nzimande of South African law firm Webber Wentzel to learn more about South Africa’s current enforcement environment and what companies need to know in order to manage their anti-corruption risk. See “Lack of Training and Due Diligence Leads to $19 Million Penalty for Hitachi” (Oct. 7, 2015).

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  • From Vol. 5 No.14 (Jul. 13, 2016)

    Six Things About State Secrets to Consider When Engaging in Internal Investigations in China (Part Two of Two)

    China’s state secrets law is the source of much angst for lawyers. While the concept of protecting state secrets is straightforward – and common to most countries – the breadth and ambiguity of China’s law, and the inconsistent way it is enforced, create unique compliance challenges for companies operating in the PRC, particularly those faced with an internal investigation of a possible anti-corruption violation. In the first part of this two-part series on China’s state secrets law, we discussed the relevant legal framework and how state secrets are defined. In this second article, we discuss six concerns a company needs to address when formulating a sensible investigation strategy based on insights from lawyers on the ground in China. See “Fighting the Dynamic War on Corruption in China” (Oct. 21, 2015).

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  • From Vol. 5 No.14 (Jul. 13, 2016)

    Former FBI Agents’ Views on Building and Managing an Investigatory Team

    As the government focus on self-reporting continues to increase, a company’s ability to conduct effective internal investigations becomes even more critical. A compliance officer faced with a corruption issue must act quickly to determine whether further internal or external investigation is neccesary. In an interview with The FCPA Report, former FBI agents Scott Moritz and Bob Hennigan, now at Protiviti, discuss how a company can effectively manage a corruption investigation, from building an investigatory team to closing out the inquiry. For more articles in this series, see “Former Prosecutor Nathaniel Edmonds Shares His Internal Anti-Corruption Investigation Strategies” (May 13, 2015) and “An Accountant’s View on How to Effectively Use Forensic Investigators During an Internal Investigation” (Jan. 27, 2016).

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  • From Vol. 5 No.14 (Jul. 13, 2016)

    The Pilot Program in Practice: A Comparison of Pre- and Post-Program Resolutions

    The Department of Justice recently signaled major developments in its anti-bribery enforcement initiatives with the release of its Foreign Corrupt Practices Act Enforcement Plan and Guidance and the announcement of its yearlong pilot program. But, will the DOJ’s new and improved enforcement protocol result in benefits to companies who choose to self-report, cooperate and remediate? In a guest article, Ropes & Gray’s Ryan Rohlfsen, Timothy Farrell and Dante Roldan examine – and provide detailed charts illustrating – the differing outcomes of DOJ cases before and after the recent policy announcements. See also “Going Deep on the Fraud Section’s FCPA Pilot Program” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting?” (May 4, 2016); and “Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program” (May 18, 2016).

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  • From Vol. 5 No.14 (Jul. 13, 2016)

    Second Circuit Rules Employees May Be Fired for Refusing Internal Investigation Interview

    After the Yates Memo, which requires that a company under investigation disclose all information about individual wrongdoing to receive cooperation credit, individuals may be more likely to push back when asked to participate in internal investigations. What recourse do employers have if employees refuse to cooperate? A recent Second Circuit ruling “establishes a corporation’s right to ‘assume the worst’ and fire an employee who declines to sit for an interview, if and when the corporation has a reasonable basis to suspect the employee engaged in criminal conduct,” Juan Morillo, a partner at Quinn Emanuel, told The FCPA Report. We analyze the decision, Gilman v. Marsh & McLennan Co., Inc., and the questions it raises. See also “Internal Investigations and Criminal Discovery After the Yates Memo” (Apr. 6, 2016).

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  • From Vol. 5 No.13 (Jun. 29, 2016)

    A Primer on China’s State Secrets Law for Anti-Corruption Practitioners (Part One of Two)

    The high incidence of FCPA settlements involving allegations of corruption in China hints at a much wider number of companies facing possible anti-corruption issues that need investigation in the PRC. But China’s laws on reviewing and transmitting certain types of data present unique complications for companies performing internal investigations. In particular, China’s state secrets law is one of the greatest sources of complexity for foreign companies and their counselors. Vaguely worded and inconsistently enforced, the law forbids the transport of certain documents outside of the PRC. The FCPA Report recently spoke with a number of attorneys working in Asia to demystify this area of law and get tips on how to practically conduct an internal investigation while minimizing risk. In this, the first part in a two-part series, we explain the framework of the state secrets law and what types of information and data it may cover. In the second part we will discuss practical implications of the law for companies engaged in cross-border investigations. See “The Emperor Is Far Away: The Evolving Nature of Third-Party Risk in China” (Sep. 9, 2015).

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  • From Vol. 5 No.13 (Jun. 29, 2016)

    Experts at Quinn Emanuel and EY Discuss Employee Reluctance to Participate in Internal Investigations and When to Call In Outside Counsel

    When a possible anti-corruption issue comes to a company’s attention, determining what happened and who was involved is of the utmost importance, but recent DOJ directives may be changing how companies go about getting that information. The Yates Memo and the FCPA Unit Pilot Program, which lay out what companies need to do to receive full credit for cooperating with a government investigation, put a premium on providing information about culpable individuals. Recently, The FCPA Report and Quinn Emanuel hosted a panel to discuss how these policy statements are changing the way companies – and their employees – approach internal investigations. The panel, moderated by Nicole Di Schino, Editor-in-Chief of The FCPA Report, included Quinn partners Juan Morillo, Jenny Durkan and Ben O’Neil along with Steve Spiegelhalter, a principal in the fraud investigations and dispute services practice at EY. “The real combined effect of the Yates Memo and the pilot program has, in many ways, an unintended consequence,” Morillo said. “It is going to make individuals more hesitant to cooperate with internal investigations.” See “Internal Investigations and Criminal Discovery After the Yates Memo,” (Apr. 6, 2016) and The FCPA Report’s three part series on the FCPA Unit’s Pilot Program: “Going Deep on the Fraud Section’s FCPA Pilot Program” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting?” (May 4, 2016); and “Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program” (May 18, 2016).

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  • From Vol. 5 No.13 (Jun. 29, 2016)

    Foreign Attorneys Share Insight on Data Privacy and Privilege in Multinational Investigations

    Multi-jurisdictional anti-corruption investigations are proliferating and subject companies must manage competing requests and competing legal regimes. At the recent White Collar Crime Institute presented by the New York City Bar Association, a panel of foreign lawyers delved into the challenges faced by counsel confronting multinational regulatory actions, including coordinating requests from multiple jurisdictions, preserving attorney-client privilege, conducting witness interviews and navigating data privacy laws. The panel featured attorneys based in London, Geneva, Hong Kong and Sao Paulo. See “How the Expanding Petrobras Scandal May Spark a New Era of Multi-Lateral Enforcement” (Dec. 2, 2015).

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  • From Vol. 5 No.10 (May 18, 2016)

    Earning Cooperation Credit Under the Fraud Section’s FCPA Pilot Program (Part Three of Three)

    The main purpose of the Fraud Section’s FCPA pilot program appears to be to encourage companies to step forward and self-report when they learn of a possible violation. Companies that do so will be rewarded – but only if they cooperate with the DOJ fully. Encouraging companies to cooperate in investigations has been an underlying theme of the government’s messaging for years, but exactly what constitutes such full cooperation has never been laid out as clearly as it is in the FCPA Unit Guidance. However, several questions remain for companies considering cooperation. This final article in The FCPA Report’s series taking a deep look at the new pilot program addresses these areas of ambiguity and how they might influence a company’s willingness to cooperate. See previously “Going Deep on the Fraud Section’s FCPA Pilot Program (Part One of Three)” (Apr. 20, 2016); “How Will the Fraud Section’s Pilot Program Change Voluntary Self-Reporting? (Part Two of Three)” (May 4, 2016).

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  • From Vol. 5 No.9 (May 4, 2016)

    Employee Interviews in Internal Investigations After Yates: A Conversation With Quinn Emanuel and EY

    Although the long-term impact of the recent policy developments coming out of the DOJ is not certain, one thing appears to be – the Yates Memo will change the tenor of employee interviews conducted during internal investigations. In the past, employees might have been eager to participate to save their jobs, but now many more may be reluctant to cooperate with investigators at all, or may put conditions on their participation. The FCPA Report spoke with Quinn Emanuel partners William Burck and Ben O’Neill, as well as Stephen Spiegelhalter, a principal in the fraud investigations and dispute services practice at EY, about the new reality of interviewing employees during investigations. On May 16, 2016, Burck, O’Neill and Spiegelhalter will participate in a symposium hosted by Quinn Emanuel and The FCPA Report on this and other issues related to conducting internal investigations and negotiating with the government in light of the Yates Memo and the new DOJ Pilot Program. For more information on the symposium and to register, please contact Max Humphrey at mhumphrey@fcpareport.com.

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  • From Vol. 5 No.7 (Apr. 6, 2016)

    Internal Investigations and Criminal Discovery After the Yates Memo

    The September 2015 Yates Memo is a clarion call to businesses around the world to come forward with specific, actionable information that the Justice Department can use to prosecute individual wrongdoers. There is some debate about whether the Yates Memo represents a shift in policy or is simply a reiteration of the Department’s longstanding principles, but the memo will undoubtedly have an immense effect on both individuals and corporations, particularly when it comes to criminal discovery in individual prosecutions. On May 16, Quinn Emanuel and The FCPA Report will host a symposium in New York addressing the challenges of navigating internal investigations and negotiations with the government in the post-Yates Memo era. In advance of that event, in a guest article, Quinn Emanuel partners William Burck and Benjamin O’Neil, and associates Daniel Koffmann and Selina MacLaren, draw upon their experiences representing former PetroTiger employee Joseph Sigelman in a recent FCPA case, to offer suggestions for both companies and individuals facing federal investigations and prosecutions in the wake of the Yates Memo. For more information on the symposium please contact Max Humphrey at mhumphrey@fcpareport.com. 

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  • From Vol. 5 No.6 (Mar. 23, 2016)

    Regional Risk Spotlight: Giovanni Falcetta of TozziniFreire Talks Anti-Corruption in Brazil Beyond the Petrobras Scandal

    Corruption in Brazil has been all over the news recently with the fallout from the Operation Car Wash investigation affecting all levels of government. Former President Lula da Silva is facing possible jail time and current President Dilma Rousseff is facing possible impeachment related to corruption. While Petrobras, Brazil’s state-controlled oil company and the main target of the investigation, grabs most of the headlines, there is more to Brazil’s corruption landscape than the current scandal. In recent years the government has reformed the country’s anti-corruption laws, and enforcement is on the rise, making compliance a hot topic at many Brazilian companies. The FCPA Report recently spoke with Giovanni Paolo Falcetta, a partner at TozziniFreire based in São Paulo, about the corruption climate in Brazil today and what companies need to know when operating there. See “Operation Car Wash: Examining the History and Consequences of the Petrobras Scandal” (Mar. 18, 2015).

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  • From Vol. 5 No.2 (Jan. 27, 2016)

    An Accountant’s View on How to Effectively Use Forensic Investigators During an Internal Investigation

    The costs of a large internal corruption investigation can, and often do, overshadow even significant fines levied by regulators. When faced with an internal investigation that requires outside forensic investigators, a company’s ability to create effective relationships with those consultants can significantly influence the final cost of the investigation. In an interview with The FCPA Report, Sara Putnam of PwC shares an accountant’s view of an FCPA investigation. Putnam describes the tools a company can provide investigators to make the investigation more effective, discusses how an investigation team can be designed, addresses data privacy issues and more. For a former prosecutor’s take on internal investigations, see “Former Prosecutor Nathaniel Edmonds Shares His Internal Anti-Corruption Investigation Strategies” (May 13, 2015).

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  • From Vol. 5 No.2 (Jan. 27, 2016)

    Survey Highlights Surprising Lack of Corporate Anti-Corruption Efforts

    The World Bank estimates that $1 trillion is lost to corruption of foreign public officials each year. Yet, a recent survey conducted in the second half of 2015 by the economic crime and justice studies department at Utica College, along with risk and business consulting firm Protiviti Inc., found that company anti-corruption efforts are lacking. During a recent panel discussion, Scott Moritz, a Protiviti managing director, observed that most companies are not well positioned to deter, detect or investigate fraud and corruption. We summarize the most concerning portions of the survey report to help compliance professionals evaluate their programs and advocate for sufficient resources. See also “Ernst & Young’s Fraud Survey Warns of Anti-Corruption Complacency” (Jun. 25, 2014); and “Kroll Managing Director Extracts Practical Lessons From 2013 Anti-Bribery and Corruption Benchmarking Survey” (Jun. 26, 2013).

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  • From Vol. 5 No.1 (Jan. 13, 2016)

    Former Prosecutor Nat Edmonds Discusses the Implications of the Recent Changes to the U.S. Attorneys’ Manual (Part One of Two)

    In November 2015, Deputy Attorney General Sally Quillian Yates announced that the section of the U.S. Attorneys’ Manual (USAM) codifying the principles governing the prosecution of business organizations had been updated to reflect the DOJ’s efforts to hold more individuals accountable for corporate criminal activity. Yates said the changes, which are publicly available, will give companies insight into how the government’s policy will be applied during the “everyday work” of federal prosecutors. Former prosecutor Nat Edmonds, now a partner at Paul Hastings, told The FCPA Report that the changes don’t indicate an actual “policy shift,” but rather a “formalization” of DOJ best practices. Yet, he emphasized, the subtle shifts in the USAM language may require a change in strategy when a company is faced with an FCPA investigation. We share his insight in a two-part series. See also “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two)” (Sep. 23, 2015); Part Two (Oct. 7, 2015).

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  • From Vol. 5 No.1 (Jan. 13, 2016)

    Creating Value in FCPA Investigations Through Increasing Cooperation Credit

    When payments to a third party with possible connections to the government are discovered in a high-risk market, what is a general counsel to do? This guest article, featuring a hypothetical narrative, tracks the trials and tribulations of a general counsel confronted with such an FCPA matter. Baker Donelson partner Joe Whitley and associate David Stewart provide specific advice about how a GC can successfully navigate an internal corruption investigation from the initial fact discovery to negotiating for sufficient resources to addressing collateral consequences. See Brockmeyer and Stokes Offer Four Benefits of Cooperation and Four Ways Companies Can Go Wrong in Their Internal Investigations” (Dec. 16, 2015).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    Brockmeyer and Stokes Offer Four Benefits of Cooperation and Four Ways Companies Can Go Wrong in Their Internal Investigations

    As government enforcers become increasingly sophisticated about business practices and bribery – and adjust their strategies accordingly – companies can be left befuddled as to what is expected from them.  In our previous issue, The FCPA Report analyzed the DOJ and SEC’s changing approaches in detail based on the “Year in Review” panel at this year’s ACI FCPA conference.  During that panel Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, also clarified their expectations for companies and their compliance programs.  The FCPA Report spoke to several anti-corruption defense experts to find out whether these expectations are reasonable and how companies can best meet them.  For coverage of last year’s panel, see “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014); and “Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In,” The FCPA Report, Vol. 3, No. 25 (Dec. 17, 2014).

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  • From Vol. 4 No.21 (Oct. 21, 2015)

    A Dangerous Harbor?  Analyzing the European Court of Justice Ruling

    An Austrian graduate student’s lawsuit against Facebook has resulted in the invalidation of a 15-year old data privacy treaty relied upon by thousands of multi-national companies.  On October 6, 2015, the Court of Justice of the European Union (ECJ), the highest court in the E.U., held that the Safe Harbor framework that allowed companies to transfer personal data from the E.U. to the U.S., including data for cross-border investigations and discovery, is invalid.  The ECJ found that the U.S. does not ensure adequate protection for personal data, primarily because of the access rights that the ECJ said U.S. agencies have.  Although the ruling is immediate, the “sky is not falling,” said Harriet Pearson, a partner at Hogan Lovells.  On October 16, 2015, a group of E.U. member state privacy regulators, the Article 29 Working Party, called for renewed negotiations on a treaty and recommended interim actions for companies.  There will need to be a “transition to a more complex and perhaps a more work-intensive compliance strategy than Safe Harbor had previously afforded companies,” Pearson said.  See “Checklist of Actions to Take and Issues to Consider When Navigating Data Privacy and Anti-Corruption Issues,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013).

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  • From Vol. 4 No.20 (Oct. 7, 2015)

    How Will the Yates Memo Change DOJ Enforcement? (Part Two of Two)

    Last month, Deputy Attorney General Sally Quillian Yates issued a memo to all United States Attorneys outlining “six key steps” designed to strengthen the DOJ’s “pursuit of individual corporate wrongdoing.”  The FCPA Report spoke to three former DOJ attorneys about how the Yates Memo may affect companies and their compliance programs.  The first article in this two-part series assessed how much of a policy shift the Yates Memo truly represents and how it may affect a target’s decision to cooperate with the government.  This second article focuses on two other major issues raised by the Memo: (1) the directive to gather information about individual culpability earlier and (2) a possible increase in the number of civil actions brought against individuals.  It also discusses whether companies should reconsider their internal investigation procedures. See also “FCPA Enforcement Officials and Defense Bar Debate FCPA Policy,” The FCPA Report, Vol. 4, No. 12 (Jun. 10, 2015).

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  • From Vol. 4 No.19 (Sep. 23, 2015)

    How Will the Yates Memo Change DOJ Enforcement? (Part One of Two)

    Under pressure to hold individuals accountable, the DOJ says it will be intensifying its focus on individuals by taking six key steps during investigations.  Deputy Attorney General Sally Quillian Yates issued a memo to all U.S. Attorneys outlining the steps she says will strengthen the DOJ’s pursuit of corporate wrongdoing.  Former DOJ attorneys talked to The FCPA Report about the implications of what the DOJ is characterizing as a policy shift.  The first article in this two-part series discusses the extent to which the memo may change the enforcement climate and the cooperation calculus for companies and individuals.  The second part addresses how focusing on individuals earlier in the investigations and the increased coordination of efforts between the DOJ’s civil and criminal divisions may affect internal investigations.  See “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 4 No.18 (Sep. 9, 2015)

    Thinking Outside the Box: Examining the Growing Trend of Compliance Outsourcing (Part Two of Two)

    Chief compliance officers are regularly being pressured to do more with less.  Many are operating in businesses that are rapidly becoming more complex, both in terms of their global reach and in their use of sophisticated information technology, PwC partner Jerry Stone told The FCPA Report.  At the same time, a CCO faces increasing expectations from global regulators, the board of directors and the C-Suite, all while trying to keep compliance costs low.  To address this myriad of concerns, many companies are outsourcing some or all of their compliance functions to third-party vendors.  In this two-part article series, The FCPA Report examines the outsourcing trend and discusses the benefits and risks of outsourcing various compliance functions.  The first article discussed why a company might outsource some or all of its compliance functions and explored the associated benefits and risks.  This second article looks at how companies are outsourcing various compliance functions and details three steps a company should take before selecting a vendor.  See also “Five Tools Every Chief Compliance Officer Needs for Effective FCPA Compliance: Title, Authority, Access, Budget and Culture (Part One of Two),” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013); Part Two of Two, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    DOJ’s New FCPA Compliance Counsel: A Fairer Assessment for Companies

    For companies in the unenviable position of waiting to see whether federal prosecutors will criminally charge their company – an often existential question – the Department of Justice may have just leveled the playing field, at least slightly.  It has just announced that it will hire a new in-house compliance counsel who will take an active role in determining key aspects of FCPA resolutions.  In a guest article, G. Derek Andreson and Thomas M. Buchanan, partners at Winston & Strawn, and Francesca M.S. Guerrero, an associate, explain how the position came to be, how it will affect companies with varying types of anti-corruption compliance programs and how companies can take advantage of the new program.  See also “Comparing and Contrasting Three FCPA Experts’ Advice on Negotiating FCPA Settlements,” The FCPA Report, Vol. 3, No. 17 (Aug. 20, 2014).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    Dissecting Mead Johnson’s $12 Million Chinese Baby Formula Bribe Settlement

    In the fifth FCPA enforcement action this year brought only by the SEC, Mead Johnson has agreed to pay $12.03 million to settle charges that its Chinese subsidiary created a slush fund with distributor discounts and used that money to bribe health care practitioners to recommend its baby formula and collect marketing information about new mothers.  The case is the latest in a line of Chinese health care FCPA enforcement actions, which may be taking on new life after the Chinese GSK case, Marc Alain Bohn, counsel at Miller & Chevalier, told The FCPA Report.  We discuss the case and the compliance lessons, including the ramifications of Mead Johnson’s failure to self-report, and why the DOJ has reportedly declined to bring a parallel action.  See also “What Does the PetroTiger Case Mean for FCPA Compliance?  Sigelman’s Attorneys and Other Experts Weigh In,” The FCPA Report, Vol. 4, No. 13 (Jun. 24, 2015).

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  • From Vol. 4 No.15 (Jul. 22, 2015)

    Addressing E-Discovery Challenges When Conducting International Investigations

    Conducting e-discovery in a cross-border investigation – a task difficult to avoid in an FCPA probe – presents an array of challenges including compliance with data privacy and other local laws; language and cultural barriers; and data collection issues.  In a guest article, e-discovery experts at Epiq Systems Martin Bonney and Melinda Kunjasich detail those challenges and explain best practices for conducting thorough and cost efficient e-discovery in international investigations.  See also “How to Manage a Multi-National Anti-Corruption Investigation,” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).

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  • From Vol. 4 No.12 (Jun. 10, 2015)

    FCPA Enforcement Officials and Defense Bar Debate FCPA Policy

    FCPA enforcement officials answered hard questions from the defense bar on hot topics including international coordination of anti-corruption cases, a rising bar for cooperation credit and the availability of declinations during a recent program hosted by Practising Law Institute.  The panelists included Kara N. Brockmeyer, Chief of the SEC’s FCPA Unit of the Division of Enforcement; Matthew S. Queler, an Assistant Chief in the Fraud Section of the DOJ’s Criminal Division; and several prominent defense attorneys.  A companion article, which will be published in our next issue, will contain the panelists’ advice on forming effective compliance programs.  See also “Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds,” The FCPA Report, Vol. 3, No. 24 (Dec.3, 2014).

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  • From Vol. 4 No.10 (May 13, 2015)

    Former Prosecutor Nathaniel Edmonds Shares His Internal Anti-Corruption Investigation Strategies

    At the first sign of a red flag that points to possible bribery, a multi-national company must consider whether to initiate an internal investigation, which can deter any nefarious activity, demonstrate an independent commitment to good compliance, and if the wrongdoing has already occurred, prevent or mitigate any potential charges.  However, if not conducted properly, internal investigations can present their own risks, including inadvertent disclosure of the investigation, waiver of the attorney-client privilege, and accusations of improper handling or even obstruction of justice.  To mitigate these risks, a company should adopt a carefully-conceived plan for conducting internal investigations.  In an interview with The FCPA Report, Nathaniel Edmonds, a partner at Paul Hastings and a former FCPA prosecutor, discusses best practices for preparing for, conducting and concluding an investigation, including the appropriate way to handle data, and reveals the biggest mistakes he has witnessed companies make during the investigative process.  See also “How to Handle a Government Investigation: Insight from PwC, Covington, Booz Allen and FINRA,” The FCPA Report, Vol. 3, No. 21 (Oct. 22, 2014). 

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  • From Vol. 4 No.10 (May 13, 2015)

    Private and Public Sector Perspectives on Producing Data to the Government

    Document requests from the government can be overwhelming, even for large companies.  Proactively communicating with the government early in the process can limit the burden placed on a company.  During a panel at Practising Law Institute’s 2015 Government Investigations event, officials from the DOJ, CFTC and SEC, along with private practitioners, shared their insight on the first steps companies should take after receiving a subpoena or other request, how to effectively negotiate with the government about the scope of the request, whether and how the government takes the burden of document productions on companies into account, and more.  See also “Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three),” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013); Part Two of Three, Vol. 2, No. 2 (Jan. 23, 2013); Part Three of Three, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 4 No.8 (Apr. 15, 2015)

    Implications of the SEC’s First-Ever Whistleblower Protection Enforcement Action

    The SEC has announced its first enforcement action under a rule prohibiting companies from impeding an individual’s efforts to report a potential securities law violation to the SEC.  The Commission’s settlement with KBR over language in its form confidentiality agreement signals that the SEC intends to take a sweeping view of the whistleblower protection rule.  In a guest article, David M. Stuart and Omar K. Madhany, partner and associate, respectively, at Cravath, Swaine & Moore LLP, analyze the decision and suggest steps that companies can take to ensure compliance with the rule.  See also “Preparing for the Increasing Role of Whistleblowers in FCPA Enforcement,” The FCPA Report, Vol. 4, No. 2 (Jan. 21, 2015). 

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  • From Vol. 4 No.7 (Apr. 1, 2015)

    Experts Discuss the Crucial First 48 Hours of an Internal Investigation and Beyond

    When a company uncovers an anti-corruption problem, it must be ready to react quickly.  “The first 48 hours of any investigation are often critical to the success of that investigation,” Andrew Foose, Vice President of Advisory Services at NAVEX Global, said during a panel at the recent Global Ethics Summit, hosted by Ethisphere Institute and Thomson Reuters.  Foose and the other panelists, William Jacobson, a partner at Orrick, Herrington & Sutcliffe; Adam Briggs, Regulatory Compliance & Ethics Attorney for United Parcel Service; and Benjamin Gruenstein, a partner at Cravath, Swaine & Moore, detailed strategies for those crucial first days and also discussed long-term best practices for conducting effective investigations.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 4 No.5 (Mar. 4, 2015)

    Social Media: Navigating the Next Generation of FCPA Compliance (Part One of Two)

    As employees spend more time personally and professionally posting on social media sites, companies urgently need to understand how to restrict such use to mitigate corruption risk while at the same time maximizing the compliance benefits social media can offer.  In this, the first article in our series on the advantages and pitfalls of social media, we discuss how companies can use social media to aid with due diligence of third parties and target companies; the limits of using social media for those purposes; government expectations; and how to use social media during internal investigations.  The second article will discuss: best practices for including social media in compliance policies, such as in training, messaging and monitoring compliance programs; how social media use can help demonstrate good behavior to the government; and how to handle the risks that including social media as part of a compliance program pose.  See “In-House Experts Discuss Social Media Pitfalls and Compliance Opportunities,” The FCPA Report, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 4 No.2 (Jan. 21, 2015)

    The Board’s Role in an Anti-Corruption Investigation

    An educated and active board of directors can do a lot to keep companies in compliance with anti-corruption laws, and if there is a potential violation, can steward the company successfully through the investigation process.  An effective board must maintain a working relationship with the members of management responsible for the compliance program and must understand the specific risks faced by the company.  During a recent panel at the Practising Law Institute’s Directors’ Institute on Corporate Governance 2014, experts explained the active role boards should take in the current environment of increased enforcement actions and sanctions.  The panel featured Dennis Beresford, Executive in Residence at the J.M. Tull School of Accounting at the University of Georgia and former Chairman of the Financial Accounting Standards Board; Larry Boyd, Executive Vice President, Secretary, and General Counsel of Ingram Micro Inc.; Robert Khuzami, a partner at Kirkland & Ellis and former SEC Director of Enforcement; and Antonio Yanez, Jr., a partner at Willkie Farr & Gallagher.  See also “Anti-Corruption Compliance Best Practices for Boards of Directors,” The FCPA Report, Vol. 2, No. 12 (Jun. 12, 2013).

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  • From Vol. 3 No.25 (Dec. 17, 2014)

    Top FCPA Officials Talk Compliance Tips and the Defense Bar Weighs In

    Selling your company’s business side on compliance; the key indicators of a successful compliance program; and the government’s view of M&A risks were all on the agenda of the FCPA enforcement officials' annual fireside chat with the FCPA defense community.  SEC Chief Kara Brockmeyer (FCPA Unit, Enforcement Division), and DOJ Deputy Chief Patrick Stokes (Fraud Section of Criminal Division) were both on hand for the “year in review” discussion at American Conference Institute’s recent International Conference on the Foreign Corrupt Practices Act.  The FCPA Report discussed the regulators’ presentation with prominent defense practitioners, who provided a few caveats to the regulators’ pronouncements.  In our previous issue, we covered Stokes’ and Brockmeyer’s discussion of enforcement priorities and the defense bar’s reaction.  Our coverage of last year’s “year in review” panel can be found here and here.

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  • From Vol. 3 No.24 (Dec. 3, 2014)

    Top FCPA Enforcers Tout Voluntary Disclosure and Warn About International Cooperation; The Defense Bar Responds

    At what has become a traditional annual speech summarizing the year in FCPA developments, Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC and Patrick Stokes, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, beat the government self-reporting drum, warned about increasing international anti-corruption enforcement and cautioned companies to re-evaluate confidentiality agreements they use during internal investigations.  The FCPA Report talked to prominent FCPA practitioners to get their take on this year’s speech at American Conference Institute's International Conference on the Foreign Corrupt Practices Act.  They said the significance of the speech lay in the tone and topics emphasized.  See our coverage of last year’s speech here and here.

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  • From Vol. 3 No.22 (Nov. 5, 2014)

    Layne Christensen Resolves FCPA Civil Charges After DOJ Declination; Details Its Extensive Cooperation

    Layne Christensen, a global water management, construction and drilling company based in Kansas, has settled the SEC’s charges concerning improper payments to African officials to obtain favorable tax treatment and reduced customs duties, among other things, for $5.1 million.  The DOJ declined to prosecute the company, and both the government and the company have touted Layne’s self-disclosure and extensive cooperation for the relatively favorable treatment.  See also “Compliance Experts from Altria, Noble Energy and HP Share Corruption Investigation Best Practices,” The FCPA Report, Vol. 3, No. 18 (Sep. 10, 2014).

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  • From Vol. 3 No.21 (Oct. 22, 2014)

    How to Handle a Government Investigation: Insight from PwC, Covington, Booz Allen and FINRA

    All companies should be prepared for the eventuality that the government is going to call or a serious whistleblower allegation is going to come in, Kristin Rivera, a partner at PricewaterhouseCoopers said while chairing a panel on government investigations at the 2014 Women, Influence and Power in the Law Conference.  Rivera and the other panelists, Mythili Raman, a partner at Covington & Burling and former Acting Assistant Attorney General for the DOJ’s Criminal Division, Brenda Morris, Deputy General Counsel at Booz Allen Hamilton, and Jessica Hopper, Vice President, Regional Enforcement at FINRA, provided specific strategies for making sure a company is ready for an investigation, and handling every stage of a government investigation thereafter.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2. No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.18 (Sep. 10, 2014)

    Compliance Experts from Altria, Noble Energy and HP Share Corruption Investigation Best Practices

    A recent American Bar Association program brought together compliance executives from several public corporations to discuss how to both satisfy the client and mollify the government during an anti-corruption investigation – no easy task.  The panelists, along with moderator Mara V.J. Senn, a partner at Arnold & Porter, shared insights and experiences on preparedness for internal investigations, the role of outside counsel, the calculus of voluntary disclosures and a number of other common issues faced by companies conducting internal investigations.  For more from Senn on internal investigations, see “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); and “Developing and Implementing the Investigation Plan (Part Two of Two),” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014).  

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    Delaware Supreme Court Gives Wal-Mart Shareholder Access to Attorney-Client Privileged Documents

    Despite the American legal system’s reverence for the attorney-client relationship, the attorney-client privilege is not unlimited.  The interest of shareholders in investigating possible breaches of fiduciary duty or other misconduct by a corporation’s officers or directors may, in appropriate circumstances, defeat the privilege.  In 2012, a Wal-Mart shareholder sought access to documents – including documents subject to the attorney-client privilege and related work-product doctrine – relating to the alleged bribery of Mexican officials by a Wal-Mart subsidiary and Wal-Mart’s flawed investigation of that misconduct.  Affirming a Chancery Court ruling that ordered Wal-Mart to turn over privileged documents, the Delaware Supreme Court expressly adopted an exception to the attorney-client privilege for a corporate shareholder who shows “good cause” for obtaining the corporation’s privileged materials.  See also “When Are Reports of Internal Investigations Protected by Attorney-Client Privilege?,” The FCPA Report, Vol. 3, No. 9 (Apr. 30, 2014).

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    D.C. Circuit Confirms Applicability of Attorney-Client Privilege to Internal Investigations

    Barko v. Halliburton, a March 2014 decision by the U.S. District Court for the District of Columbia, sent shock waves through the ranks of corporate counsel: The District Court ruled that an internal investigation was not privileged because it would have been conducted regardless of whether the company was also seeking legal advice.  In an important reaffirmation of the strength and breadth of the attorney-client privilege, the U.S. Court of Appeals for the D.C. Circuit recently vacated the District Court’s decision, ruling that the privilege was available so long as seeking legal advice was a “significant” purpose – even if not the sole purpose – of the internal investigation.  This decision coincides with a Delaware Supreme Court ruling, discussed above in this issue of The FCPA Report.  That court expressly adopted an exception to the attorney-client privilege for a corporate shareholder who shows “good cause” for obtaining the corporation’s privileged materials (in that case, Wal-Mart).  See also The FCPA Report’s series on conducting internal investigations: “Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); and “Developing and Implementing the Investigation Plan (Part Two of Two),” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014). 

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    Gibson Dunn Attorneys Share Lessons from Their Insider Trading Trial Win Against the SEC

    After an investigation and litigation that spanned 13 years, a jury found Nelson J. Obus, Peter F. Black and Thomas Bradley Strickland not liable for insider trading in the shares of SunSource, Inc. at the time of its acquisition by Allied Capital Corporation in 2001.  In a recent panel discussion, two of Obus’ defense attorneys, Gibson, Dunn & Crutcher partner Joel M. Cohen and associate Mary Kay Dunning, shared the lessons they learned from contending with the SEC investigation, the insider trading litigation and the trial of the case – lessons applicable to many types of litigation against the government.  See “Litigation, Settlement and Risk Management Lessons Learned from Recent FCPA Trials,” The FCPA Report, Vol. 1, No. 11 (Nov. 7, 2012).

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  • From Vol. 3 No.13 (Jun. 25, 2014)

    The Fallout From Walmart’s Ongoing FCPA Investigation

    Walmart’s ongoing trials and tribulations demonstrate that anti-corruption violations can have ramifications far beyond the costs of a fine or penalty.  More than two years after Walmart’s anti-corruption troubles began, it is still suffering significant collateral consequences.  The retail giant has been deeply embroiled in a wide-ranging internal investigation since its 2011 SEC disclosure of possible FCPA violations, followed by the 2012 New York Times report that Walmart had paid over $24 million in bribes in Mexico.  The company has poured hundreds of millions of dollars into the investigation, overhauled its compliance program and personnel, and has faced criticism regarding the independence of its board, with Institutional Shareholder Services recommending that the company take actions to improve transparency and independence.  The company has also been the subject of ongoing civil litigation related to the bribery allegations.  See “How to Anticipate and Manage Collateral Litigation after an FCPA Investigation Becomes Public,” The FCPA Report, Vol. 2, No. 17 (Aug. 21, 2013). 

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  • From Vol. 3 No.11 (May 28, 2014)

    Practical Guidance for Obtaining Evidence from Abroad: An Interview with T. Markus Funk of Perkins Coie

    A perennial challenge in FCPA cases is obtaining evidence that resides outside the U.S., both during the investigation and during administrative and court proceedings. T. Markus Funk, a partner at Perkins Coie and former federal prosecutor, DOJ Legal Advisor in Kosovo and Oxford law lecturer, discussed with The FCPA Report the details of, and differences between, the two formal mechanisms for obtaining evidence from abroad, mutual legal assistance treaties and letters rogatory.  He also gave expert insight on informal channels for obtaining evidence overseas, and strategies for handling the challenges that attorneys may encounter when seeking such evidence.  Funk recently authored Mutual Legal Assistance Treaties and Letters Rogatory: A Guide for Judges (Federal Judicial Center, 2014).  For more analysis from Funk, see “Assessing the Year in FCPA Enforcement and Looking Ahead,” The FCPA Report, Vol. 3, No. 2 (Jan. 22, 2014) and “The New Landscape of Corporate Social Responsibility Regulation and Its Overlap with FCPA Compliance,” The FCPA Report, Vol. 1, No. 11 (Nov. 7, 2012).  Funk also represented Joel Esquenazi in the challenge to the definition of “instrumentality,” decided on May 16.  See “What the Eleventh Circuit's 'Instrumentality' Decision Means for FCPA Practitioners,” above, in this issue of The FCPA Report.

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  • From Vol. 3 No.11 (May 28, 2014)

    Three Questions to Ask After Detecting a Possible FCPA Violation

    A report of bribery has come in: a whistleblower has made a complaint or an employee has discovered a violation of an internal control, such as fraud on an expense report.  Among the questions that must be answered are: Who should conduct which parts of the investigation? When should the investigation end?  How should the issue be remediated?  FCPA experts from Paul Hastings, Akin Gump and KPMG weigh in.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.9 (Apr. 30, 2014)

    FCPA Experts in the Public and Private Sector Share Seven Lessons from Recent Cases (Part Two of Two)

    At a recent panel discussion sponsored by the Knowledge Group, former senior FCPA prosecutors, a current SEC lawyer and an economist shared advice on various critical aspects of an internal anti-corruption investigation, including factors to consider at the outset, whether to voluntarily disclose the investigation to the government, how to handle reporting to multiple jurisdictions, and calculating the “benefit of the bribe” for penalty purposes.  The first article in this two-part series contained the seven lessons the panelists extracted from recent FCPA settlements and trends; the initial decisions that a company faces when it discovers a potential violation; and the role of whistleblowers in revealing potential violations. See also “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 3 No.9 (Apr. 30, 2014)

    When Are Reports of Internal Investigations Protected by Attorney-Client Privilege?

    In-house legal departments and outside counsel often work under the assumption that internal investigations conducted by, or under the supervision of, counsel are protected by privilege.  However, a recent decision by the U.S. District Court for the District of Columbia has raised questions as to whether such privilege extends to investigations that are not conducted primarily for the purpose of seeking legal advice or directly in anticipation of litigation.  This article delves into the recent Barko v. Halliburton decision and what it means for companies that may seek to invoke the attorney-client privilege or work-product doctrine to preserve the confidentiality of internal investigations.  See also “Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations,” The FCPA Report, Vol. 2, No. 13 (Jun. 26, 2013).

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  • From Vol. 3 No.8 (Apr. 16, 2014)

    FCPA Experts in the Public and Private Sector Share Seven Lessons from Recent Cases (Part One of Two)

    At a recent panel discussion sponsored by the Knowledge Group, former FCPA prosecutors, a current SEC lawyer and an economist shared their insights on what recent FCPA enforcement actions mean for companies, along with advice for initiating and conducting FCPA investigations.  This article, the first of a two-part series, contains seven lessons the panelists have extracted from recent FCPA settlements and trends; initial decisions that a company faces when it discovers a potential violation; and the role of whistleblowers in revealing potential violations.  The second part of the series will cover the panelists’ insights on initiating internal investigations; voluntary disclosures; multi-jurisdictional concerns; negotiations with regulators; remediation efforts and calculation of fines.  See also “Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics,” The FCPA Report, Vol. 3, No. 7 (Apr. 2, 2014).

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    Audit Committee Responsibilities Before, During and After Internal Investigations: Remediating and Disclosing the Investigation to the Government and the Public (Part Four of Four)

    The end of an internal investigation does not mean the end of work on the matter for a company and the audit committee.  When an internal corruption investigation is completed, “the board should have a full briefing as to the findings, along with recommendations as to what next steps the organization should take,” William Olsen, leader of the Global Investigations and Anti-Corruption Services group at Grant Thornton LLP, told The FCPA Report.  The board and the company must make a series of critical and difficult decisions relating to, among other things, voluntary disclosure to the government, remediation measures and public disclosures.  The role the audit committee should play in these issues can be hard to define.  The FCPA Report is publishing a four-part article series on audit committee responsibilities throughout an internal investigation. This final article in the series suggests best practices for an audit committee after the “meat” of the investigation is done, including whether and how to self-report and other crucial post-investigation decisions on remediation and SEC disclosures.  The first article in the series, “Five Steps to Take Before the Investigation Begins,” detailed the committee's responsibilities, the risks and liabilities it faces and steps it should take before the need to investigate arises. The second article, “Determining When and How to Proceed,” discussed vetting complaints for the audit committee, determining when an investigation is needed and who should lead the investigation. The third article, “Retaining Counsel, Gathering Information and Documenting the Investigation,” discussed what the company and audit committee should do when initiating an investigation; when the company should retain outside counsel and other experts; how the company should gather information relevant to the investigation; and whether and how the company should document the investigation.

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics

    At this year’s Momentum Global Anti-Corruption Congress, Charles Cain, Deputy Chief of the SEC’s FCPA Unit and Jeffrey H. Knox, Chief of the Fraud Section of the DOJ, Criminal Division, lifted the veil on the government’s thinking in FCPA investigations.  The discussion, led by David H. Resnicoff, a member at Miller & Chevalier, covered a range of topics on the minds of FCPA practitioners and compliance officers, including the timing of voluntary self-disclosures, the kinds of cases the government may decline to pursue, effective cooperation with FCPA investigations, the role of audit committees in compliance strategies and the programmatic success of the FCPA Guidance released in 2012.  See “When Should a Company Voluntarily Disclose an FCPA Investigation?,” The FCPA Report, Vol. 3, No. 4 (Feb. 19, 2014); and “DOJ and SEC Officials Provide Candid Insight into the Recently Issued FCPA Guidance,” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 3 No.6 (Mar. 19, 2014)

    Audit Committee Responsibilities Before, During and After Internal Investigations: Retaining Counsel, Gathering Information and Documenting the Investigation (Part Three of Four)

    Legal and compliance departments, along with management, usually have hands-on roles to play during an internal anti-corruption investigation, but the audit committee, which often oversees the investigation, can have a more indeterminate one.  How involved should the audit committee be in formulating and implementing an effective investigation strategy?  The FCPA Report is publishing a four-part article series examining audit committee responsibilities and best practices before, during and after internal investigations.  This, the third article in the series, discusses what the company and audit committee should do when initiating an investigation; when the company should retain outside counsel and other experts; how the company should gather information relevant to the investigation; and whether and how the company should document the investigation.  The first article in the series, “Five Steps to Take Before the Investigation Begins,” detailed the responsibilities of the audit committee, the risks and liabilities the audit committee faces and steps the audit committee should take before the need to investigate arises.  The second article, “Determining When and How to Proceed,” discussed vetting complaints for the audit committee, determining when an investigation is needed and who should lead the investigation.  The fourth article will discuss the audit committee’s responsibilities concerning self-reporting, remediation and SEC disclosures.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2. No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.6 (Mar. 19, 2014)

    Strategies for Conducting Effective Employee Interviews in an Anti-Corruption Investigation

    A critical part of the fact-gathering process in an internal anti-corruption investigation is the interviewing of employees who may have relevant information, but conducting effective interviews – handling evasive witnesses and protecting attorney-client privilege, for example – is difficult.  A recent webinar conducted by Michael Volkov of The Volkov Law Group LLC provided valuable strategies for maximizing the value of employee interviews.  Volkov discussed, among other things, how to best prepare for the interview, effective questioning techniques and documenting the interview.  See also "How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.5 (Mar. 5, 2014)

    Audit Committee Responsibilities Before, During and After an Anti-Corruption Investigation: Determining When and How to Proceed (Part Two of Four)

    Involving the audit committee in appropriate internal investigations helps ensure that the investigation is conducted properly and the company and its employees achieve the best resolution possible.  Determining the audit committee’s optimal role can be difficult, however – a company must decide what issues warrant the audit committee’s attention and then determine the audit committee’s proper place in the actual investigation.  The FCPA Report is examining the audit committee’s responsibilities in anti-corruption investigations in a four-part article series.  This, the second article in the series, discusses vetting complaints for the audit committee, determining when an investigation is needed and who should lead that investigation.  The first article in the series, “Five Steps to Take Before the Investigation Begins,” detailed the responsibilities of the audit committee, the risks and liabilities the audit committee faces and steps the audit committee should take before the need to investigate arises.  The third article will discuss best practices at the outset of the investigation, the wisdom and timing of retaining outside counsel, the information-gathering process and the need to document the investigation.  The fourth article will discuss the audit committee’s responsibilities concerning self-reporting, remediation and SEC disclosures.  See also “A Guide to Disclosing Corruption Investigations in SEC Filings (Part Three of Four),” The FCPA Report, Vol. 2, No. 11 (May 29, 2013).

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  • From Vol. 3 No.4 (Feb. 19, 2014)

    Audit Committee Responsibilities Before, During and After Anti-Corruption Investigations: Five Steps to Take Before the Investigation Begins (Part One of Four)

    The audit committee of a multi-national company has a front-and-center seat for an anti-corruption investigation and the host of unwelcome consequences that can accompany that investigation: multi-million dollar legal bills, media scrutiny, civil litigation and potential civil and criminal sanctions for the company.  The role of an audit committee member is a high-stakes one – he or she can be instrumental in putting the company in the best position if a potential violation is detected and an investigation is needed and can also be held personally liable if a serious violation occurs.  In a four-part series, The FCPA Report is examining fundamental questions regarding the audit committee’s role in internal investigations.  This article, the first in the series, outlines the responsibilities of the audit committee, describes the risks and liabilities the audit committee faces and articulates five steps the audit committee should take before there is cause for investigation.  See also “Five Tools Every Chief Compliance Officer Needs for Effective FCPA Compliance: Title, Authority, Access, Budget and Culture (Part One of Two),” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013); Part Two of Two, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 3 No.1 (Jan. 8, 2014)

    How to Conduct an Anti-Corruption Investigation: Developing and Implementing the Investigation Plan (Part Two of Two)

    Once you have discovered that your company is the subject of an anti-corruption investigation – either one prompted internally or by the government – an investigation plan must be formulated and effectuated.  How can your company marshal resources most efficiently to ensure a thorough investigation?  What are the best methods for conducting interviews and collecting documents?  What should the company do in response to any issues identified by the investigation, and what collateral consequences should it be prepared to deal with?  While no two anti-corruption investigations are the same, this two-part guest article series written by Mara V.J. Senn and Michelle K. Albert, partner and associate, respectively, at Arnold & Porter LLP, walks through the anatomy of a typical investigation and identifies key considerations and best practices at each stage to aid both in-house and outside counsel.  This, the second article in the series, discusses, among other things, developing an investigative plan, strategies for witness interviews and document collection, ten best practices for cross-border investigations, managing the self-reporting calculus and handling remediation and other concerns at the end of the investigation.  The first article detailed typical triggers for investigations and explained ten crucial factors that a company should consider at the start of the investigation.

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  • From Vol. 3 No.1 (Jan. 8, 2014)

    Understanding and Acting on Brazil’s New Anti-Corruption Law

    At the end of January 2014, Brazil’s new anti-corruption legislation, aimed at combating bribery and bid-rigging, is set to take effect.  The law contains broad anti-corruption provisions, including strict liability for some misconduct, that have serious implications for companies that do business in Brazil, whether through subsidiaries, agents or joint ventures.  A recent program presented by international law firm Mayer Brown provided a comprehensive overview of the new law and insights on how anti-corruption compliance programs may be tailored to provide the greatest protection under that law.  This article provides the key takeaways from that program.  See also “The Essentials of the New Brazilian Anti-Corruption Legislation,” The FCPA Report, Vol. 2, No. 17 (Aug. 21, 2013); “How the New Brazilian Anti-Corruption Law Impacts U.S. Corporations,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013); and “The Changing Dynamics of Anti-Corruption Enforcement in Brazil,” The FCPA Report, Vol. 2, No. 23 (Nov. 20, 2013).

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  • From Vol. 3 No.1 (Jan. 8, 2014)

    ADM’s $54 Million Civil and Criminal FCPA Settlement: Numerous Bribery Schemes, Tax Evasion and the Effect of Cooperation

    Archer-Daniels-Midland Company (ADM) and various subsidiaries have resolved FCPA charges with the SEC and DOJ by paying $54 million and entering into a Non-Prosecution Agreement, a guilty plea and a consent decree related to the civil action. The company’s investigation of the various creative bribery schemes began in 2008 and the company’s cooperation played a role in a 33% fine reduction from the Sentencing Guidelines range and the lack of a monitor.  This article details the settlement and compares it to previous ones.  The ADM settlement was the final settlement of 2013, announced on December 20.  For details on the other 2013 corporate enforcement actions, see “FCPA Corporate Settlements of 2013: Details, Trends and Compliance Takeaways,” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013).

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  • From Vol. 2 No.25 (Dec. 18, 2013)

    How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two)

    What should you do when a subpoena arrives on your desk, asking about suspected bribe payments to foreign officials?  This two-part guest article series, written by Mara V.J. Senn and Michelle K. Albert, partner and associate, respectively, at Arnold & Porter LLP, walks through the anatomy of a typical investigation and identifies key considerations and best practices at each stage to aid both in-house and outside counsel.  The first article details typical triggers for investigations and explains ten crucial factors that a company should consider at the start of the investigation.  The second article in the series will discuss, among other things, formulating an investigative plan, best practices for cross-border investigations, the self-reporting calculus and concerns collateral to the investigation.  See also “How to Manage a Multi-National Anti-Corruption Investigation,” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).

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  • From Vol. 2 No.23 (Nov. 20, 2013)

    Construction Industry Experts Discuss Crucial Steps in Internal Corruption Investigations, Due Diligence Best Practices and the Value of Cooperation

    Could the construction industry be the next target of anti-corruption enforcement action in the U.S. and abroad?  The industry is rife with risk – in the U.K., for example, 49% of corruption professionals say corruption is widespread, and law firm Reed Smith LLP predicts that at least two large U.K. Bribery Act investigations are in the works in the next two years for international construction firms.  How can construction companies, and others similarly situated, anticipate and mitigate what may be a gathering enforcement storm?  The Practising Law Institute recently sponsored a panel of attorneys with extensive experience in construction contracting who discussed the best ways to enhance compliance for the construction industry, offering lessons applicable to a range of industries.  The panelists analyzed the current global anti-corruption enforcement climate, detailed best practices with regard to due diligence when contracting with third parties in foreign countries, provided steps that a company should take when faced with an FCPA issue, including investigation mistakes companies make, and examined the value of cooperation and voluntary disclosure.  See also “Survey Reveals the Contours and Content of Bribery in the U.K. Construction Industry,” The FCPA Report, Vol. 2, No. 20 (Oct. 9, 2013).

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  • From Vol. 2 No.21 (Oct. 23, 2013)

    Checklist of Actions to Take and Issues to Consider When Navigating Data Privacy and Anti-Corruption Issues

    Investigating a potential FCPA violation almost invariably entails cross-border discovery because U.S. companies need data housed overseas.  While trying to please U.S. regulators in obtaining information relevant to suspected bribes both in the context of internal investigations and due diligence of another company, however, companies often find themselves at the risk of violating the strong data privacy laws enacted in many countries across the globe.  To minimize conflicts, companies must educate themselves about data privacy, plan ahead and act strategically.  This checklist can serve as a guide to help companies comply with data privacy laws when conducting cross-border anti-corruption or other investigations, and when engaging in common compliance activities.  The checklist highlights data privacy issues that companies should consider and actions they should take prior to the development of an FCPA issue, during an investigation and during due diligence.  For more on the interaction between data privacy and anti-corruption laws, see The FCPA Report’s Data Privacy Series: "Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three),” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013); Part Two Of Three, Vol. 2, No. 2 (Jan. 23, 2013); Part Three of Three, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.19 (Sep. 26, 2013)

    Saudi Businessman Sues White & Case for Documents in Lead Up to Case Against Barclays

    Wealthy Saudi businessman Mohamed bin Issa al Jaber and his company have filed a peititon in state court in New York against White & Case LLP seeking a confidential settlement agreement they allege is in that law firm’s possession.  The lawsuit is part of Jaber’s effort to establish a claim that Barclays Bank PLC conspired with certain officials of the Kingdom of Saudi Arabia to damage his business.  He alleges that he and his company are victims of Barclay’s tortious scheme involving bribery of foreign officials, and the settlement document is central to proving those allegations.

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  • From Vol. 2 No.18 (Sep. 11, 2013)

    Minimizing Anti-Corruption Deal Risk While Maximizing Returns on Venture Capital Investments

    More and more, venture capital firms are investing in start-ups seeking to expand internationally or with nascent cross-border operations in place.  Such investments offer opportunities for lucrative returns but also carry significant anti-corruption risk that VC firms are often ill-equipped to manage.  For many businesses, managing anti-corruption risk is a necessary cost center.  But VC firms are uniquely positioned to use that risk to drive a better deal and gain greater control over management and direction of the business.  In a guest article, G. Derek Andreson, Thomas M. Shoesmith, Marc H. Axelbaum, partners, and Ryan R. Sparacino, counsel, at Pillsbury Winthrop Shaw Pittman LLP, offer an assessment of the opportunities and risks that VC firms should consider, and conclude with four strategies for maximizing returns while limiting anti-corruption risks.  See also “Strategies for Mitigating the FCPA Risk of Entering Into Joint Ventures,” The FCPA Report, Vol. 2, No. 9 (May 1, 2013).

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  • From Vol. 2 No.18 (Sep. 11, 2013)

    Fighting Corruption with Creative Data Mining: Five Forensic Accounting Techniques for Development Program Investigations

    The World Economic Forum estimates that the cost of corruption amounts to more than 5% of global GDP ($2.6 trillion), with more than $1 trillion paid in bribes each year.  Creative data mining is one of the most effective tools in identifying transactions connected to this illicit behavior.  It is commonplace in most every fraud and corruption investigation nowadays to pull raw data from ERP systems, identify relevant pools of data and design queries to find anomalies.  What happens, though, when an organization is faced with a situation where such raw data is unreliable, incomplete, or not available at all?  More often than not, the robust data sets that one would likely have access to in corporate investigations are not available in the case of development projects financed by institutions such as the United Nations and the World Bank.  Such projects are often plagued by inadequate accounting systems, archaic banking practices and a general lack of management and fiduciary controls.  In a guest article based on dozens of global corruption investigations, Jean-Michel Ferat, Managing Director at The Claro Group, describes the primary corruption risks inherent in development projects and – using slides taken directly from his investigative experience – details five workable methods for mitigating those risks.  See also “How Forensic Accountants Help Identify Corruption Risk and Delve into the Details of Books and Records,” The FCPA Report, Vol. 2, No. 12 (Jun. 12, 2013).

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  • From Vol. 2 No.17 (Aug. 21, 2013)

    How to Anticipate and Manage Collateral Litigation after an FCPA Investigation Becomes Public

    A government investigation may be only the beginning of a company’s FCPA-related troubles.  Once the curtain is raised on an investigation, the company may face collateral litigation from various parties, multiplying its problems and presenting an array of challenges.  See “Non-FCPA Liability for Alleged FCPA Violations,” The FCPA Report, Vol. 1, No. 1 (Jun. 6, 2012).  (A public company under investigation must also contend with disclosure questions and reserve requirements.)  How can a company protect itself?  How can it maintain control over its confidential business information?  How can it cooperate with the government without providing a roadmap for plaintiffs’ lawyers?  At a recent panel hosted by the American Conference Institute, FCPA experts addressed these issues and others.  

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  • From Vol. 2 No.16 (Aug. 7, 2013)

    Estimating Loss: When and How to Calculate and Disclose Financial Reserves for FCPA Settlements (Compendium of SEC Filings)

    When a public company is negotiating an FCPA settlement with the government, it must consider its concurrent obligation to set and publicly disclose a financial reserve for that settlement.  This raises various issues.  How early should a company set a reserve?  When should the company disclose that reserve?  What language should the disclosure include?  The FCPA Report has published a three-part series (see part onepart two and part three) addressing crucial issues companies face when considering whether and how to compute and disclose financial reserves for FCPA settlements.  With help from Intelligize’s database and search tools, The FCPA Report has also organized this long-form compendium of actual FCPA reserve-related disclosures from recent SEC filings to complement the series.  The disclosures are grouped based on when in the investigation the company established a reserve, as follows: (1) Reserve Disclosure Made During Early Discussions with the Government; (2) Reserve Disclosures Made During the Course of the Government Investigation; and (3) Reserve Disclosures Made on the Eve of Settlement.  These real-world examples of relevant disclosures can serve as precedents for counsel tasked with drafting or reviewing SEC filings when a company is considering setting a reserve in anticipation of an FCPA settlement.  To maximize the value of this compendium as a practice tool, this compendium also contains links to each of the filings discussed and quoted.

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  • From Vol. 2 No.16 (Aug. 7, 2013)

    Seven Lessons from China’s Bribery Investigation of GlaxoSmithKline 

    The Chinese government’s recent actions against employees of pharmaceutical giant GlaxoSmithKline plc in connection with possible commercial and government bribery have thrust the business practices of pharmaceutical and other health-related companies in China into the spotlight.  Speculation is growing that China may be increasing enforcement of its anti-bribery laws against a range of industries.  Chinese anti-bribery enforcement varies in important ways from U.S. enforcement.  Therefore, it is important for companies operating in China to understand what steps they can take to mitigate corruption risk, uncover and react to bribery by their employees and others, and be prepared for unannounced visits from Chinese regulators.  In a recent webinar, Shanghai-based K&L Gates partner Amy Sommers offered seven compliance and business lessons that companies can learn from GSK’s predicament.  See also “China Clarifies and Expands its Anti-Bribery Laws,” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.14 (Jul. 10, 2013)

    Estimating Loss: When and How to Calculate and Disclose Financial Reserves for FCPA Settlements (Part Two of Three)

    When a publicly traded company is negotiating an FCPA settlement, it must consider reserving funds for the associated loss.  Calculating a reserve becomes necessary when the company faces a probable, estimable and material loss.  Once that occurs, the company will likely be required to make a public disclosure about the reserve, exposing it to a host of potentially adverse consequences, including harm to the company’s reputation, a decrease in stock price and increased exposure to foreign prosecutions.  How should a company involved in settlement negotiations with the government address this sensitive issue?  How should it go about setting such a reserve?  When during those negotiations should the company begin to consider reserving funds for a future settlement?  How should the reserve be calculated?  How should it be disclosed?  The FCPA Report is publishing a multi-part series addressing these crucial issues.  This article, the second in the series, discusses the issues a company should consider before setting a reserve, the risks related to setting reserves and the risks of miscalculating the reserve.  The first installment in the series discussed the accounting principles governing the setting of the reserve, examined when during an investigation a company should set a reserve and described who should be involved in setting the reserve.  See “Estimating Loss: When and How to Calculate and Disclose Financial Reserves for FCPA Settlements (Part One of Three),” The FCPA Report, Vol. 2, No. 13 (Jun. 26, 2013).  The third and final installment will discuss how to calculate a reserve and how to draft the disclosures announcing the reserve.  It will also include a compendium of actual FCPA reserve-related disclosures from recent SEC filings, compiled with help from Intelligize’s database and search tools.

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  • From Vol. 2 No.13 (Jun. 26, 2013)

    Estimating Loss: When and How to Calculate and Disclose Financial Reserves for FCPA Settlements (Part One of Three)

    It is no secret that FCPA settlements can be monstrously expensive.  When faced with such a substantial loss, publicly traded companies often have an obligation to reserve funds in anticipation of a potential settlement and to disclose the amount of that reserve.  How should a company involved in settlement negotiations with the government go about setting such a reserve?  When during those negotiations should the company begin to consider reserving funds for a future settlement?  How should the reserve be calculated?  How should it be disclosed?  The FCPA Report is publishing a multi-part series addressing these and other crucial issues.  This article, the first in the series, discusses the accounting principles governing the setting of the reserve, examines when during an investigation a company should set a reserve and describes who should be involved in setting the reserve.  The second article in the series will discuss the issues a company should consider before setting a reserve and the risks related to setting reserves.  The third installment will discuss how to calculate a reserve and how to draft the disclosures announcing the reserve.  It will also include a compendium of actual FCPA reserve-related disclosures from recent SEC filings compiled with help from Intelligize’s database and search tools.

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  • From Vol. 2 No.13 (Jun. 26, 2013)

    Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations

    Under pressure to quickly formulate an investigation plan, attorneys conducting an internal investigation on behalf of a company or board committee can easily overlook the importance of establishing procedures at the outset to ensure the preservation of applicable privileges.  That is a mistake.  In a guest article, James Walker, a partner at Richards Kibbe & Orbe LLP, examines the difficult privilege issues faced by both in-house and outside counsel conducting cross-border internal investigations, including (1) the complexities that arise in connection with conducting witness interviews in cross-border investigations; (2) the difference between the law of privilege in the U.S. and other jurisdictions; (3) the considerations involved when communicating with foreign in-house counsel; and (4) pitfalls associated with ignoring data privacy rules.  See also “Representing Foreign Companies in Criminal FCPA Actions: Strategies for Handling the Legal, Practical and Cultural Challenges,” The FCPA Report, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 2 No.12 (Jun. 12, 2013)

    A Guide to Disclosing Corruption Investigations in SEC Filings: Compendium of SEC Filings (Part Four of Four)

    This is the fourth and final article in The FCPA Report’s series on when and how public companies should disclose FCPA and other corruption issues in SEC filings.  In this article, we have organized (with help from Intelligize’s database and search tools) a compendium of actual FCPA-related disclosures from recent SEC filings.  The filings are grouped based on the type of event that triggered the initial disclosure, as follows: U.S. government subpoena; U.S. government inquiry; foreign government investigation; internal compliance discovery; whistleblower allegation; and post-acquisition due diligence.  These real-world examples of relevant disclosures can serve as precedents for counsel tasked with drafting or reviewing SEC filings relating to an FCPA issue.  To maximize the value of this compendium as a practice tool, this compendium also contains links to each of the filings discussed and quoted.  The first article in the series discussed factors that companies should consider when determining whether a public disclosure is appropriate; what experts a company should retain to help it make appropriate disclosure decisions; and the risks and benefits of disclosing at different stages of an anti-corruption investigation.  The second installment in the series detailed the risks inherent in disclosure and non-disclosure; addressed ways to diminish those risks, including handling media coverage; and discussed best practices when disclosing foreign investigations to the SEC.  The third article in the series provided insight on the most effective language to use in disclosures, and analyzed Wal-Mart’s disclosures at critical decision points in its recent investigation.

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  • From Vol. 2 No.11 (May 29, 2013)

    Designing and Implementing Effective Press and Social Media Policies to Mitigate Reputational Harm from Anti-Corruption Investigations

    Press coverage about corruption – or, more likely, alleged corruption – can ignite a string of detrimental events at a company, starting with considerable reputational damage.  When the press, on one of its myriad platforms, picks up a story about corruption, that story can go viral very quickly.  Complicating matters, it is not just the press that can set these events in motion, but anyone with a Twitter account, Facebook page or blog.  Faced with media attention, a company’s options can be suddenly constrained – it may be forced to self-report to the government before it is ready, and must handle all the repercussions of such reporting, all while trying to preserve its relationship and status with its customers, clients and partners.  See “Insight from Top Companies and Practitioners on How They Are Addressing Current Anti-Corruption Issues, from Self-Reporting to Risk Assessments to Training,” The FCPA Report, Vol. 2, No. 10 (May 15, 2013).  A comprehensive media strategy is crucial.  A recent panel at the American Bar Association’s Fifth Annual National Institute on Internal Corporate Investigations and Forum for In-house Counsel addressed strategies for handling the press and social media.  Industry experts shared their considerable experience handling media issues and provided practical, step-by-step advice for handling a public relations crisis.

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  • From Vol. 2 No.11 (May 29, 2013)

    A Guide to Disclosing Corruption Investigations in SEC Filings (Part Three of Four)

    Many multi-national public companies with robust anti-corruption compliance programs will discover, at some point, evidence of potential fraud that requires an internal investigation.  See “Handling the Challenges of Overseas Anti-Corruption Investigations: Forensic Accountants, Government Expectations, Translators, Upjohn Warnings, Privilege Issues and Recording Interviews,” The FCPA Report, Vol. 2, No. 9 (May 1, 2013).  When a publicly traded company performs such an investigation, it is faced with a series of difficult questions.  Among the most vexing and urgent questions are whether and when the company should disclose the investigation in an SEC filing.  Should the company wait until it completes the investigation?  Should it wait until after it has disclosed to the DOJ and the SEC?  How much evidence of actual corruption is needed to justify the filing?  What information should the disclosure include?  When answering these questions, companies must consider the serious consequences of publicly reporting FCPA concerns.  Companies that publicly disclose such information may face civil lawsuits, stock price volatility, reputational issues, damage to employee morale and productivity, loss of current government contracts and debarment from future contracts.  See “Doing Business with the World Bank: Understanding and Avoiding Debarment,” The FCPA Report, Vol. 2, No. 10 (May 15, 2013).  The FCPA Report is publishing a series of articles addressing best practices for disclosing anti-corruption investigations in SEC filings.  The series provides insight on when a company should disclose and strategies for mitigating the negative impact of a disclosure, including guidance on timing and language to include in the disclosure.  In addition to analysis and insight from practitioners, this series will include a compendium of actual FCPA-related disclosures from recent SEC filings compiled with help from Intelligize’s database and search tools.  These real-world examples of relevant disclosures can serve as precedents for counsel tasked with drafting or reviewing SEC filings relating to an FCPA issue.  This article, the third in the series, provides insight on the most effective language to use in disclosures, and analyzes Wal-Mart’s disclosures at critical decision points in its recent investigation.  The first article in the series discussed factors that companies should consider when determining whether a public disclosure is appropriate; what experts a company should retain to help it make appropriate disclosure decisions; and the risks and benefits of disclosing at different stages of the anti-corruption investigation.  The second installment in the series detailed the risks inherent in disclosure and non-disclosure; addressed ways to diminish those risks, including handling media coverage; and discussed best practices when disclosing foreign investigations to the SEC.  Finally, in the last article in the series, The FCPA Report will publish the referenced compendium of SEC disclosures, categorized by their attributes.

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  • From Vol. 2 No.10 (May 15, 2013)

    A Guide to Disclosing Corruption Investigations in SEC Filings (Part Two of Four)

    Public companies that discover evidence of potential anti-corruption violations are faced with a series of difficult decisions.  One of the most critical decisions is whether and when the company should disclose the potential violation and investigation in its public SEC filings.  Public companies are required to disclose material information, but determining when an FCPA investigation becomes material is more of an art than a science.  Further complicating matters, making such a disclosure to the SEC can carry serious consequences, including civil lawsuits, stock price instability, reputational damage, waning employee morale and productivity, loss of current government contracts and debarment from future contracts.  The FCPA Report is publishing a series of articles addressing the crucial issues public companies face when anti-corruption allegations surface.  In addition to analysis and insight from practitioners, this series will include a compendium of actual FCPA-related disclosures from recent SEC filings compiled with help from Intelligize’s database and search tools.  These real-world examples of relevant disclosures can serve as precedents for counsel tasked with drafting or reviewing SEC filings relating to an FCPA issue.  This article, the second in the series, details the risks inherent in disclosure and non-disclosure; addresses ways to diminish those risks, including handling media coverage; and discusses best practices when disclosing foreign investigations to the SEC.  The first article in the series discussed factors that companies should consider when determining whether a public disclosure is appropriate; what experts a company should retain to help it make appropriate disclosure decisions; and the risks and benefits of disclosing at different stages of the anti-corruption investigation.  The third installment will provide insight on the most beneficial language to use in disclosures and analyze Wal-Mart’s disclosures during different periods of its recent investigation.  Finally, in the last installment in the series, The FCPA Report will publish the referenced compendium of SEC disclosures, categorized by their attributes.

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  • From Vol. 2 No.9 (May 1, 2013)

    A Guide to Disclosing Corruption Investigations in SEC Filings (Part One of Four)

    When a company becomes aware of a bribery allegation, various difficult decisions materialize.  For public companies, chief among those decisions is whether, when and how to disclose the matter in an SEC filing.  Public companies are required to disclose material information or events affecting the company, but the definition of material can be amorphous, and the stakes are high.  Public disclosure of a corruption problem exposes companies to civil lawsuits, stock price instability, reputational damage, waning employee morale and productivity, loss of current government contracts and debarment from future contracts.  The potential consequences add urgency to the questions: “When does a company have to disclose?” and “How can a company minimize the negative impact of the disclosure?”  The FCPA Report is addressing these questions and others in a four-part series that will serve as a reference guide for disclosing corruption matters in SEC filings.  Specifically, this series will provide guidance on whether and at what stage of an internal investigation to make the disclosure and how to craft language to mitigate the fallout from such disclosure.  In addition to analysis and insight from sources, this series will include a compendium of actual FCPA-related disclosures from recent SEC filings.  These real-world examples of relevant disclosures can serve as precedents for counsel tasked with drafting or reviewing SEC filings relating to an FCPA issue.  This article, the first in the series, discusses: factors that companies should consider when determining whether a public disclosure is appropriate; what experts a company should retain to help it make appropriate disclosure decisions; and the risks and benefits of disclosing at different stages of the anti-corruption investigation.  The second article in this series will: detail the risks inherent in disclosure and non-disclosure; address ways to diminish those risks, including how to handle the media; and discuss best practices when disclosing foreign investigations to the SEC.  The third article will provide insight on the most beneficial language to use in disclosures, and will analyze Wal-Mart's disclosures at different times in its FCPA investigation.  The fourth installment will be the referenced compendium of SEC disclosures, categorized by their attributes.

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  • From Vol. 2 No.9 (May 1, 2013)

    Handling the Challenges of Overseas Anti-Corruption Investigations: Forensic Accountants, Government Expectations, Translators, Upjohn Warnings, Privilege Issues and Recording Interviews

    Internal FCPA investigations do not respect jurisdictional boundaries, and varying customs and laws of different areas critically impact not only internal investigations, but also prosecutions and litigations for multi-national companies that may follow.  Failing to identify and address the specific issues relevant to an anti-corruption investigation can have significant legal and financial consequences.  A recent panel of experts at the American Bar Association’s Institute on Internal Investigations and Forum for In-House Counsel discussed the complexities of internal investigations, sharing their advice on best practices starting with actions to take during the first 72 hours of the investigation.  From both government and private sector perspectives, the panel addressed how to handle language and cultural differences, as well as how to navigate varying legal regimes that affect privilege and complicate the collection of documents.  They also provided insight on interviewing witnesses and how best to deal with the U.S. government when it comes to disclosing an investigation.

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  • From Vol. 2 No.8 (Apr. 17, 2013)

    Representing Foreign Companies in Criminal FCPA Actions: Strategies for Handling the Legal, Practical and Cultural Challenges

    Many FCPA investigations and prosecutions involve foreign companies or foreign subsidiaries of U.S. companies.  When the DOJ investigates or commences a criminal enforcement action against a foreign company, local laws, customs and practices can create challenges for unwary U.S. counsel in areas such as discovery and attorney-client privilege.  A recent event shed light on the topics that frequently come up when dealing with a foreign company client: attorney-client privilege, cross-border discovery, data privacy, obstruction of justice and extradition.  The event participants, all partners at Kaye Scholer LLP, also shared advice on working with in-house counsel in Japan and China and addressed other practical issues specific to the European Union, China and Japan.

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  • From Vol. 2 No.7 (Apr. 3, 2013)

    SEC’s FCPA Unit Chief and Top Practitioners Address the Role of Financial Controls in FCPA Compliance Policies, Internal Investigations, Self-Reporting and Related Topics

    In a recent panel discussion held at the New York City Bar, Kara Brockmeyer, Chief of the SEC’s FCPA Unit, and Mark Schonfeld, a partner at Gibson Dunn & Crutcher LLP, discussed the SEC’s role in civil FCPA enforcement from a private and public perspective.  The panel was moderated by Wayne Carlin, a partner at Wachtell, Lipton, Rosen & Katz.  The three experts shared useful insights regarding managing the costs of FCPA investigations, creating strong compliance programs, negotiating with the SEC and deciding whether to voluntarily disclose a violation to the government.

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  • From Vol. 2 No.6 (Mar. 20, 2013)

    How to Manage a Multi-National Anti-Corruption Investigation

    Managing a single internal anti-bribery investigation that spans multiple jurisdictions requires forethought, coordination, creativity and preparation.  When leading an investigatory team, counsel must consider both the laws and customs of the United States and the laws and customs of the multiple jurisdictions where its client maintains operations.  Counsel also must be mindful of the relationships between various jurisdictions.  Failing to identify and address the specific issues relevant to an investigation can have significant legal and financial consequences.  A panel of experts at the New York City Bar recently shared their insights on how to successfully run a complex international investigation.  The panelists offered advice on, among other things, navigating data privacy laws; protecting the attorney-client privilege; addressing employee rights; and determining whether to voluntarily disclose the results of an internal investigation.

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  • From Vol. 2 No.6 (Mar. 20, 2013)

    Structuring FCPA Books and Records Controls to Withstand SEC Scrutiny Without Impairing Sales

    Although the FCPA is commonly known as an “anti-bribery” law, it is frequently difficult for the SEC and DOJ to prove that a suspect payment was made with the requisite “corrupt” intent to establish a violation of FCPA Section 78dd-a.  However, investigations of suspect payments often reveal violations of FCPA Section 78m, which requires a company to maintain appropriate internal accounting controls and accurate books and records (the Accounting Provisions).  Even if a payment to a government official does not constitute an impermissible bribe, if that payment is recorded as a sales commission, then the company can still be held liable for an FCPA Accounting Provisions violation.  A recent webinar shed light on SEC enforcement and investigative priorities with regard to the Accounting Provisions and on how companies can approach the development of suitable accounting controls.  This article catalogues the noteworthy insights from the webinar.

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  • From Vol. 2 No.6 (Mar. 20, 2013)

    How to Defend Individuals Against FCPA Charges (Part Two of Two)

    More individuals have been charged with violations of the FCPA in the past few years than ever before in the statute’s history.  The government has indicated repeatedly that this is a trend they expect to continue.  Accordingly, defending individuals in FCPA matters is becoming increasingly common.  But representing individuals in FCPA cases is different in important ways from defending corporations; the issues faced by corporations whose people are charged are notably different from the issues faced by corporations which themselves are charged.  A panel of experts at the New York City Bar recently shared their insights on salient concerns related to representing individuals facing FCPA charges.  The FCPA Report is synthesizing their advice in a two-part article series.  This article, the second in the series, addresses advising individual FCPA defendants on whether to participate in a company interview; when and how to cooperate with counsel for other individuals; and tips for cooperating with the government.  The first article discussed the primary differences between representing individuals and corporations; the key points to remember when negotiating payment of an individual’s attorney fees; when to enter into and how to draft Joint Defense Agreements; and how to gather information from company counsel.   See “How to Defend Individuals Against FCPA Charges (Part One of Two),” The FCPA Report, Vol. 2, No. 5 (Mar. 6, 2013).

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  • From Vol. 2 No.5 (Mar. 6, 2013)

    How to Defend Individuals Against FCPA Charges (Part One of Two)

    Government officials repeatedly have stated that FCPA charges against individuals will become more frequent.  Accordingly, defending against such charges is expected to become a more common practice among FCPA lawyers.  But defending individuals against FCPA charges is different in important ways from defending corporations; and the issues faced by corporations whose people are charged are notably different from the issues faced by corporations which themselves are charged.  A panel of experts at the New York City Bar recently shared their insights on salient concerns related to representing individuals facing FCPA charges.  The FCPA Report is synthesizing their advice in a two-part article series.  This article, the first in the series, discusses the primary differences between representing individuals and corporations; the key points to remember when negotiating payment of an individual’s attorney fees; when to enter into and how to draft Joint Defense Agreements; and how to gather information from company counsel.  The second article in this series will address advising individual FCPA defendants on whether to participate in a company interview; when and how to cooperate with counsel for other individuals; and tips for cooperating with the government.

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  • From Vol. 2 No.3 (Feb. 6, 2013)

    Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part Three of Three)

    To comply with the FCPA, companies must exercise decisive control – they must act quickly and effectively to investigate potential corrupt actions and conduct thorough due diligence.  These actions, coupled with the inevitable time pressure, can put a company in direct conflict with foreign data privacy laws.  Carefully crafting compliance policies and investigation plans can minimize this conflict.  This article, the third in a three-part series, details six steps companies should take at the beginning of an investigation; delves into the issues facing companies that perform internal investigations and conduct due diligence; and offers concrete advice from top practitioners about conducting those activities in a way that minimizes the risk of violating data privacy laws.  The first article in this series discussed the application of data privacy laws to FCPA compliance and the specifics of the E.U. data privacy regime, including: data processing principles; restrictions on data transfer; data transfer mechanisms, including the meaning of “safe harbor status,” binding corporate rules and European model clause agreements; as well as how potential new regulation can affect data collection.  See “Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three),” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013).  The second article in this series discussed how France applies the relevant E.U. Directive; best practices for due diligence in France; and six specific steps a company should take before a need to investigate arises in France as well as other E.U. member states and other jurisdictions with similar data privacy regimes.  See “Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part Two of Three),” The FCPA Report, Vol. 2, No. 2 (Jan. 23, 2013).

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part Two of Three)

    As companies strengthen their anti-corruption compliance programs in response to the domestic enforcement climate, they face an increasing risk of violating data privacy laws across the globe.  With law enforcement and regulators demanding information, companies find themselves trying to please two masters.  Understanding foreign data privacy laws, which often conflict with American notions of privacy, and anticipating problems before they materialize, are key to minimizing conflicts.  France in particular has a strict data privacy regime, and its laws are actively enforced.  This article, the second in a three-part series, discusses how France applies the relevant E.U. Directive; best practices for due diligence in France; and six specific steps a company should take before a need to investigate arises in France as well as other E.U. member states and other jurisdictions with similar data privacy regimes.  The third article in this series will tackle: internal investigation considerations; best practices for reviewing documents and conducting interviews; strategies for transferring data outside the E.U.; data privacy concerns when performing due diligence in the E.U.; and effective techniques for running an anti-corruption hotline in the E.U.  The first article in this series discussed data privacy laws generally and specifically as they relate to FCPA compliance, and provided information about the specifics of the E.U. data privacy regime, including: data processing principles; restrictions on data transfer; data transfer mechanisms, including the meaning of “safe harbor status,” binding corporate rules and European model clause agreements; as well as how potential new regulation can affect data collection.  See “Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three),” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013).

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    Specific Strategies from Goldman Sachs, Société Générale and Leading Law Firms on Conducting Cross-Border FCPA Investigations

    The considerable challenges posed by an internal FCPA investigation are compounded when that investigation involves a cross-border component – as it almost invariably does.  In-house and outside counsel in cross-border investigations must navigate legal regimes that often conflict (notably in the area of data privacy); divergent approaches to the attorney-client privilege; varying business and governance structures; and different languages and cultural mores.  Moreover, best practices in the area of cross-border investigations are not codified or neatly packaged; rather, they are a function of long and often arduous experience.  In an effort to identify and communicate some of those best practices, a seasoned panel of in-house and law firm lawyers convened in New York on January 15, 2013 for a panel hosted by Catalyst, an e-discovery services provider.  The panel was moderated by Vasu Muthyala, counsel at O’Melveny & Meyers LLP.  He was joined by Greg Andres, partner at Davis Polk & Wardell LLP; John Driscoll, Managing Director and Director of Litigation and Regulatory Affairs at Société Générale; Justin Shur, partner at Molo Lamken LLP; John Tredennick, Chief Executive Officer of Catalyst; and Christine Chi, Global Head of the Anti-Bribery Group at Goldman Sachs.  The panelists discussed, among other issues: major challenges facing companies performing cross-border investigations, including the differing notions of data privacy and attorney-client privilege in different regions and strategies for coordinating with multiple jurisdictions; tips for conducting a cross-border investigation, including when to retain outside counsel; and the dynamics of reporting, both obligatory reporting via a Suspicious Activity Report and voluntary disclosure, especially in the current whistleblower climate.

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  • From Vol. 2 No.1 (Jan. 9, 2013)

    Conflicting Compliance Obligations: How to Navigate Data Privacy Laws While Performing Internal Investigations and Promoting FCPA Compliance in the E.U. (Part One of Three)

    Vigorous anti-corruption compliance – as undertaken by many companies in the wake of the recent uptick in FCPA prosecutions – may endear a company to the DOJ and SEC, but could also put it at risk of violating data privacy laws across the globe.  In Europe, where privacy is considered a fundamental right, this is a particularly thorny problem.  It is difficult for companies operating in both the U.S. and E.U., if not impossible, to comply with both U.S. law and E.U. data privacy legislation.  To minimize conflicts, companies must educate themselves about data privacy, plan ahead and act strategically.  This article series helps companies do just that, delving into the details of E.U. privacy regulations and the challenges they pose during all the stages of an anti-corruption internal investigation, as well as during due diligence on third parties and for mergers and acquisitions and when creating and maintaining an anti-corruption hotline.  Through discussions with numerous data privacy and FCPA experts as well as secondary research, this article series provides a valuable framework for understanding data privacy laws in the E.U. and applying them to anti-corruption compliance.  This first part of the article series discusses data privacy laws generally and specifically as they relate to FCPA compliance and provides information about the specifics of the E.U. data privacy regime, including: data processing principles; restrictions on data transfer; data transfer mechanisms, including the meaning of “safe harbor status,” binding corporate rules and European model clause agreements; as well as how potential new regulation can affect data collection.  The second part of this article series will discuss how France specifically applies the relevant E.U. Directive; best practices for due diligence in France; and specific steps a company should take before a need to investigate arises in the E.U. and other jurisdictions with similar data privacy regimes.  The third part will tackle internal investigation considerations; best practices for reviewing documents and conducting interviews; strategies for transferring data outside the E.U.; data privacy concerns when performing due diligence in the E.U.; and effective techniques for running an anti-corruption hotline in the E.U.  See also “Strategies for Preserving Data Before and During an FCPA Investigation,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012).

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Integral Elements of Proactive and Pre-Merger Anti-Corruption Forensic Audits

    The last five years of FCPA enforcement have increased the need for comprehensive and effective compliance programs and controls designed to detect, deter and remediate instances of bribery and corruption.  A hidden jewel for some organizations is the use of the forensic audit function to help achieve these objectives.  A properly staffed and well-trained forensic audit team can provide a positive return on investment if used appropriately to satisfy the new imperative of a well-functioning compliance program.  Conducted competently, forensic audits can go a long way toward preventing violations, detecting violations (including in the merger and acquisition process), aiding the investigative and remedial process, substantiating the existence, amounts and recipients of payments and ultimately helping a company earn credit when negotiating with the government or self-reporting discovered violations.  See “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  In a guest article, Paul E. Zikmund, Global Director, Ethics and Compliance, at Bunge Limited, discusses the core elements of proactive FCPA audits, as well as the key mechanics of pre-merger anti-corruption forensic audits.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Nine Steps to Take When Initiating an Internal FCPA Investigation

    On November 14, 2012, a panel sponsored by compliance software provider Catelas Inc. (Catelas) discussed the considerations involved in investigating bribery related compliance incidents and other wrongdoing.  The panel was a follow up to Catelas’ November 7, 2012 panel about monitoring third-party business relationships with a view to assuring FCPA compliance and managing other risks.  See “Managing FCPA and Other Risks After Onboarding a Third Party,” The FCPA Report, Vol. 1, No. 12 (Nov. 14, 2012).

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  • From Vol. 1 No.12 (Nov. 14, 2012)

    Strategies for Preserving Data Before and During an FCPA Investigation

    Companies operating in today’s international marketplace create and distribute mass quantities of electronically stored information.  On any given day, a multinational company’s employees may write and distribute thousands of e-mails, letters, text messages, instant messages and other electronic documents.  If not handled properly, such information can create significant risks for global organizations, potential subjects of FCPA (and other) investigations.  Failing to create and implement a comprehensive data preservation policy prior to the start of an investigation or inquiry can have dire consequences, particularly if documents are inadvertently destroyed after a preservation duty develops.  Handling data correctly – both before and during an FCPA investigation – is straightforward in theory but challenging in practice.  This article provides insight on how best to deal with the mountain of data relevant to an investigation, including how a company can insulate itself proactively from the risks caused by poor data management; the importance of creating, implementing and enforcing a comprehensive data preservation plan prior to the triggering of a preservation obligation; how to determine when a preservation obligation arises; and best practices for implementing a litigation hold after the obligation has arisen.

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  • From Vol. 1 No.11 (Nov. 7, 2012)

    Specific Strategies from Pfizer, Barrick Gold and Other Leading Companies for Handling Actual and Potential FCPA Whistleblowers

    The SEC’s new whistleblower bounty program, promulgated under the Dodd-Frank Act, has altered litigation strategy and forced in-house counsel and compliance officers to revisit portions of their compliance policies to encourage would-be whistleblowers to report internally in lieu of, or before, going to the government.  On October 19, 2012, at the ABA’s Fifth Annual FCPA Institute in Washington, D.C., a group of in-house and outside counsel discussed how the whistleblower program has affected FCPA compliance policies, the challenges of handling and disciplining whistleblowers as well as recent caselaw interpreting the provisions.  For more on discipline considerations for anti-bribery professionals, see “When, Why and How Should Companies Discipline Employees for FCPA Violations?,” The FCPA Report, Vol. 1, No. 8 (Sep. 19, 2012).

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  • From Vol. 1 No.9 (Oct. 3, 2012)

    Anonymous Polling, Focus Groups and “Organizational Justice” Help Companies Avoid FCPA Violations While Growing Revenue

    The notion that anti-bribery compliance and revenue generation are at odds has a superficial appeal and a long tradition.  But the notion does not hold up under theoretical scrutiny, and it has been discredited empirically.  As a theoretical matter, it makes good sense that a culture of ethics and excellence leads to high long-term returns, while a culture of bribery leads to misallocation of resources, among other problems.  And as an empirical matter, deep research by CEB (formerly the Corporate Executive Board), along with CEB’s extensive advisory experience, highlight a strong correlation between long-term revenue growth and a corporate culture of integrity.  “Integrity capital,” as CEB calls it, is not just the right thing to do or, less charitably, applied sanctimoniousness.  Rather, it is good business and effective strategy.  Working from an interview with Tracy Davis Bradley, a senior director at CEB; a recent article by Dan Currell, an executive director at CEB, and Bradley in the Harvard Business Review; as well as research provided to The FCPA Report by CEB, this article sheds light on some of the footpaths connecting ethics and revenue.  In particular, this article outlines specific steps that companies can take to avoid FCPA violations while simultaneously driving business growth; why the shaky economy may be driving bribery in developing countries; how integrity capital can help businesses’ bottom lines; how companies can make their hotlines more effective; how anonymous polling and focus groups, if done well, can yield surprisingly good results; and why companies should not only consistently and quickly punish offenders, but give recognition to employees who report wrongdoing.

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  • From Vol. 1 No.9 (Oct. 3, 2012)

    Anti-Corruption Compliance in the Age of Global Enforcement

    A global wave of anti-corruption regulation has been steadily gaining momentum since it began in the 1990s.  International organizations, such as the Organisation for Economic Co-operation and Development, have set their sights on fighting bribery and have successfully pressured member states to pass tighter laws.  Cross-border enforcement cooperation is also on the rise.  This heightened scrutiny has highlighted the importance for corporations to have globally effective anti-corruption compliance programs.  Successful programs help reduce the risk of violations and may also engender a more favorable regulatory response when issues arise.  In a guest article, Richard Sibery, the Leader for Fraud and Investigations with Ernst & Young LLP’s Fraud Investigation & Dispute Services (FIDS) practice, and Virginia Adams, a Senior Manager in E&Y’s FIDS practice, discuss the three basic building blocks of a best-of-breed compliance program.  For additional insight from Sibery, see “Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice,” The FCPA Report, Vol. 1, No. 1 (Jun. 6, 2012); and “Anti-Corruption Audits, Risk Assessments, Transaction Testing and the Dangers of Petty Cash: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice,” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).

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  • From Vol. 1 No.8 (Sep. 19, 2012)

    When, Why and How Should Companies Discipline Employees for FCPA Violations?

    When a company discovers an FCPA violation, and is faced with formulating a strategy to remediate the problem, one of the important and delicate considerations it must make is how to discipline the employees involved.  There are competing interests at work – the company needs to show the DOJ and the SEC that it reacted promptly and decisively, but it also must induce cooperation from key individuals in order to get to the root of the problem.  Termination may be appropriate for some employees, but companies must do so properly so as not to trigger retaliation; and other forms of discipline may be appropriate for employees with a less central role in the prohibited activities.  Determining the best proactive procedures to prevent misconduct, as well as the best reactive procedures once there has been a violation, and remedial measures to prevent reoccurrence, are paramount to minimize liability.  The government, once it is involved, may also pressure the company to take disciplinary action.  A further challenge hinges on the fact that information being provided in cooperating with the company, since it is not privileged, may be provided to the government for use in a possible criminal investigation.  This article provides context and practical guidance to companies navigating the disciplinary process.  In particular, this article discusses the application of the FCPA to employee conduct and how the government has treated employee discipline in the FCPA context.  Based on insight from experienced FCPA practitioners, this article addresses how to balance discipline with cooperation from employees during an internal investigation; strategies for inducing cooperation during the investigation; the privilege implications of cooperation; and considerations a company should weigh in considering disciplinary action, including government pressure and scrutiny of decisions, seniority of management, as well as disciplinary challenges in different jurisdictions.

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  • From Vol. 1 No.5 (Aug. 8, 2012)

    FCPA Investigation Protection: D&O Insurance and Beyond

    Few subjects receive as much attention in legal, compliance and accounting circles these days as the FCPA, the United Kingdom Bribery Act and other foreign and international anti-corruption laws.  However, while legal issues, compliance questions and legislative initiatives are the subject of constant scrutiny from companies, legal counsel, blogs, commentators and lobbyists, one potential means of ameliorating FCPA risk receives relatively little consideration: insurance.  So, what can a company do in the insurance context to protect itself against the costs of an FCPA investigation and/or proceeding?  In a guest article, M. Machua Millett, a Senior Vice President at international insurance brokerage firm Marsh USA, Inc., addresses this important question.

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  • From Vol. 1 No.4 (Jul. 25, 2012)

    An Interview with Judge Stanley Sporkin, the “Father of the FCPA” (Part Two of Two)

    This article includes the second part of The FCPA Report’s extensive interview with the esteemed Judge Stanley Sporkin, who is widely credited with developing the books and records provision of the FCPA when he was Director of the Division of Enforcement of the SEC in the 1970s.  Judge Sporkin was also a federal judge in the District of Columbia and General Counsel of the CIA, and is currently the Ombudsman for BP America.  The second part of our interview includes Judge Sporkin’s comments on: self-reporting; the new FCPA Unit at the SEC; his proposal for amnesty; the biggest mistake companies make when it comes to corruption; the movement to amend the FCPA; the potential importance of ombudsmen; and combining anti-corruption audits with annual audits.  In the first part of the interview, Judge Sporkin offered insight into, among other things: the origins of the FCPA following the Watergate hearings; his contemporaneous view on the difficulty of substantiating anti-bribery claims; the origins of internal investigations; and the pro-business orientation of the FCPA.  See An Interview with Judge Stanley Sporkin, the ‘Father of the FCPA’ (Part One of Two),” The FCPA Report, Vol. 1, No. 3 (Jul. 11, 2012).

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  • From Vol. 1 No.3 (Jul. 11, 2012)

    An Interview with Judge Stanley Sporkin, the “Father of the FCPA” (Part One of Two)

    The FCPA Report recently had the privilege of conducting a wide-ranging interview with the esteemed Judge Stanley Sporkin, who is widely credited with developing the books and records provision of the FCPA in the 1970s.  Judge Sporkin, a former federal judge in the District of Columbia, was Director of the Division of Enforcement of the SEC from 1974 to 1981, and General Counsel to the Central Intelligence Agency from 1981 to 1986.  He now advises private companies on compliance and is the Ombudsman for BP America.  Judge Sporkin was a driving force behind the creation of the FCPA, and this interview is perhaps the deepest conducted to date with a person whose depth on the topic cannot be surpassed.  In light of the length of our interview, we are publishing the transcript in two parts.  In this first part, Judge Sporkin offers valuable insight into, among other things: the origins of the FCPA following the Watergate hearings; his contemporaneous view on the difficulty of substantiating anti-bribery claims; the origins of internal investigations; the pro-business orientation of the FCPA; and more.  The second part will include Judge Sporkin’s comments on: self-reporting; the new FCPA Unit at the SEC; his proposal for amnesty (or a “flu shot,” as he calls it); the biggest mistake companies make when it comes to corruption; the movement to amend the FCPA; the potential importance of ombudsmen; and combining anti-corruption audits with annual audits.

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