The Anti-Corruption Report

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

Articles By Topic

By Topic: Privilege

  • From Vol. 7 No.24 (Nov. 28, 2018)

    What Does a “Bigger and Stronger” SFO Mean for Companies?

    Speaking at a recent event in London, the SFO’s Joint Head of Fraud, Hannah von Dadelszen, described an agency and, in fact, a world that is becoming very “unforgiving” of corporate crime. Companies that discover misconduct should engage with their regulators and those that choose instead to “hide behind smoke and mirrors,” do so at their own peril, she warned. Elements of von Dadelszen’s remarks, such as her focus on self-reporting, an emphasis on international cooperation and a discussion of corporate compliance, echoed speeches given by U.S. officials. However, her promise that the SFO will reward companies for waiving privilege during settlement negotiations was uniquely British and serves as stark reminder that every jurisdiction plays by its own rules. See “Joint Head of Bribery at the SFO Discusses the Agency’s Priorities” (May 30, 2018).

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  • From Vol. 7 No.24 (Nov. 28, 2018)

    Answers to Four Critical Questions on Privilege in Internal Investigations

    Many lawyers do not understand the concept of privilege fully, Stuart Altman, senior vice president and global CCO at Las Vegas Sands Corp., observed at a recent webinar hosted by Strafford. A privileged communication is one “between client and lawyer sent under confidential conditions for purposes of seeking or providing legal advice,” he explained. When it comes to internal investigations, it can be difficult to determine what constitutes a communication covered by the privilege, who counts as an attorney, who counts as a client and when privilege might be waived. Altman was joined by Michael Hayes, a partner at Montgomery McCracken Walker & Rhoads, in discussing the nuances of the answers to these four key questions. We summarize their takeaways. See 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. 7 No.22 (Oct. 31, 2018)

    Privilege, Data Privacy and Human Resources in Cross‑Border Investigations

    Increasing globalization and better international law enforcement cooperation have made cross‑border investigations increasingly complex, Angela Burgess, a partner at Davis Polk, explained during a panel at PLI’s recent White Collar Crime 2018 program. The panel, which Burgess moderated, addressed how to navigate the minefields of attorney‑client privilege, data privacy and employment law in cross‑border investigations. The panel also included attorneys from the U.S. Attorney’s office in the EDNY, Weil Gotshal, Skadden and HSBC. See “Dispelling Myths About When Attorney-Client Privilege Applies to Communications With In-House Counsel” (Sep. 20, 2017).

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  • From Vol. 7 No.21 (Oct. 17, 2018)

    Four Takeaways From the U.K.’s ENRC Privilege Decision

    Following the September 2018 decision of the English Court of Appeal in the ENRC case, the English law of privilege has moved more in line with the U.S. doctrine of attorney work product. While it will always be a fact-dependent determination, as a general rule, companies conducting investigations in the U.K. should now be able rely on the English doctrine of litigation privilege to protect their investigative work product from disclosure to the authorities. In a guest article, Ropes & Gray partners Amanda Raad and Judith Seddon and associates Matthew Burn and Sarah Lambert-Porter discuss the practical implications of the decision. 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.20 (Oct. 3, 2018)

    Privilege in Internal Investigations: A Look at Common Law and Civil Law Approaches

    Common law and civil law legal systems approach the protection of confidential attorney-client communications from fundamentally different angles. Often, the issue of whether a communication is confidential depends on the role of the attorney, with in-house counsel sometimes falling outside the scope of privilege protections, a distinction that becomes complicated in the context of internal investigations. This guest article by Paul Hastings attorneys Tara Giunta and Morgan Heavener explores the state of privilege in various jurisdictions and its implications for companies investigating potential corruption issues. See “Crafting and Delivering Effective Upjohn Warnings” (Apr. 18, 2018).

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  • From Vol. 7 No.15 (Jul. 25, 2018)

    As the U.K. Bribery Act Turns Seven, Experts Take Its Pulse

    The U.K. Bribery Act has “evolved significantly over the course of the last seven years,” Greenberg Traurig shareholder Barry Vitou said at a recent Securities Docket program. He and other panelists offered insights on the upcoming changing of the guard at the SFO, the use and impact of deferred prosecution agreements, the pending House of Lords review of the Act and pending litigation over the scope of attorney-client privilege. See “Joint Head of Bribery at the SFO Discusses the Agency’s Priorities” (May 30, 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.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.18 (Sep. 20, 2017)

    Dispelling Myths About When Attorney-Client Privilege Applies to Communications With In-House Counsel

    The privilege attached to a conversation an executive has with in-house counsel is not always as clear as the privilege that attaches when an executive calls an outside counsel. Reasons include that the in-house counsel may have both legal and non-legal duties, communications may concern both legal and non-legal matters and unnecessary persons may be party to the communications. A recent program featuring Dechert partner Christopher S. Ruhland explored the nuances of the attorney-client privilege as it relates to communications with in-house counsel and debunked three common myths about the availability of privilege. See 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.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.9 (May 10, 2017)

    Navigating Privilege and Data-Privacy Challenges in a Cross-Border Bribery and Corruption Investigation

    Governments are increasingly cooperating with each other in investigations and companies are cooperating more with governments, incentivized by cooperation credit. Both of these developments create challenges for companies with regard to preserving attorney-client privilege and compliance with data privacy laws. In a guest article, Lillian S. Hardy, a partner at Hogan Lovells, compares the laws of privilege and enforcement expectations in the U.S., U.K. and Brazil to illustrate how companies can navigate these challenges during cross-border investigations. See The FCPA Report’s three-part series on protecting attorney-client privilege and work product while cooperating with the U.S. 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.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.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.3 (Feb. 15, 2017)

    Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating with the Government: Cooperation Benefits and Risks (Part Two of Three)

    When it comes to privilege and work product, companies cooperating with the government while conducting investigations often face important strategic questions: how much information to share, and whether to include privileged and attorney work product materials in their disclosures to the government. In this second installment in a three-part guest article series, Eric J. Gorman and Brooke A. Winterhalter, partner and associate, respectively, at Skadden, analyze this strategic cooperation question through the lens of the attorney-client privilege and attorney work product doctrine, and identify certain steps that companies may wish to take to try to minimize the risk or extent of a waiver resulting from whatever approach they take. For the first installment in the series, see “Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Establishing Privilege and Work Product in an Investigation” (Feb. 1, 2017).

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  • From Vol. 6 No.2 (Feb. 1, 2017)

    Protecting Attorney-Client Privilege and Attorney Work Product While Cooperating With the Government: Establishing Privilege and Work Product in an Investigation (Part One of Three)

    The DOJ and SEC offer powerful cooperation incentives to companies that internally investigate and remediate alleged violations of the FCPA and share the facts they learn with the government. While the government expressly declines to require that companies disclose privileged or work product investigation materials as a condition of gaining cooperation credit, protecting the privilege and work product, a crucial objective for companies during investigations, is challenging. The privilege, and to a lesser extent the work-product doctrine, generally require confidentiality. Cooperation with the government, by contrast, often necessitates disclosure. In a three-part guest article series, Eric J. Gorman, a partner at Skadden, and his associate, Brooke A. Winterhalter, seek to unwind that conundrum by closely examining the interplay between the attorney-client privilege and attorney-work-product protection on the one hand, and cooperation with the government on the other. This first part in the series addresses how and when the attorney-client privilege and attorney-work-product protection are created during internal investigations, and steps that can be taken to establish and maintain those protections. See also “Attorney-Consultant Privilege? Key Considerations for Using the Kovel Doctrine (Part One of Two)” (Dec. 21, 2016); Part Two (Jan. 18, 2017).

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  • From Vol. 6 No.1 (Jan. 18, 2017)

    Attorney-Consultant Privilege? Structuring and Implementing the Kovel Arrangement (Part Two of Two)

    So-called “Kovel arrangements” provide unique opportunities for companies and their legal counsel to extend the attorney-client privilege to consultants, such as those performing anti-corruption investigations or audits. After deciding to use the arrangement, the next (and most important) step is ensuring that the entire Kovel engagement is performed correctly so that the privilege will be recognized by regulators and courts, and documents detailing the company’s operational deficiencies are not unnecessarily made available. This article, the second in a two-part series, provides practical guidance regarding the provisions that need to be included in an engagement letter with a consultant, details daily steps a company must take to ensure it remains Kovel-compliant and examines circumstances under which it is and is not appropriate for companies to employ Kovel arrangements. The first article in this series detailed the legal requirements of the Kovel doctrine, as well as considerations for companies when deciding whether to invoke or waive the privilege. See also “When Are Reports of Internal Investigations Protected by Attorney-Client Privilege?” (Apr. 30, 2014).

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  • From Vol. 5 No.25 (Dec. 21, 2016)

    Attorney-Consultant Privilege? Key Considerations for Using the Kovel Doctrine (Part One of Two)

    Most companies are comfortable that their interactions with outside counsel during investigations, audits and compliance assessments are covered by privilege. However, whether that protection also applies to the range of non-attorney consultants who also help attorneys with those efforts, such as forensic accountants and investigators, is less clear. The Second Circuit’s Kovel decision in 1961 extended the attorney-client privilege to third parties assisting attorneys in representing clients under certain circumstances. This two-part series discusses how companies can most successfully make use of so-called “Kovel arrangements.” This first article describes the requirements of the Kovel privilege as established by case law. The second article will detail the requisite features of a fully compliant Kovel arrangement and when they are appropriate. See also “Preserving the Attorney-Client Privilege in Cross-Border Internal Investigations” (Jun. 26, 2013).

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  • From Vol. 5 No.19 (Sep. 28, 2016)

    Experts from PwC Discuss Compliance Audits and Common Missteps

    Compliance auditing is a critical component of an effective anti-corruption compliance program, recognized both by the U.S. Sentencing Guidelines and the government’s FCPA Resource Guide. A recent Strafford program, “FCPA Compliance Audits: Lessons From Recent Investigations,” discussed regulators’ expectations regarding compliance auditing, the process for scoping and conducting a compliance audit and common audit pitfalls. David A. Wilson, a partner at Thompson Hine, led the discussion, which featured Sulaksh Shah, a partner at PwC, and James Gargas, a director at that firm. This article discusses some of the key takeaways from the program. See also our interview series, “Best Practices for Performing Compliance Program Assessments: Pamela Passman of CREATe.org” (Apr. 6, 2016); “Susan Markel of AlixPartners” (Feb. 24, 2016); and “Jeffrey Kaplan of Kaplan & Walker” (Nov. 4, 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.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.2 (Jan. 27, 2016)

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

    The DOJ recently announced that it had revised its U.S. Attorneys’ Manual (USAM) to reflect the Department’s efforts to hold more individuals accountable for corporate criminal activity. Although the new guidelines may not represent a significant change in policy, even subtle shifts in the USAM language may affect how a company approaches anti-corruption compliance, former prosecutor Nat Edmonds, now a partner at Paul Hastings, told The FCPA Report. We share Edmond’s insights in this two-part series. 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. 4 No.24 (Nov. 18, 2015)

    U.S. Attorneys’ Manual Changes Announced by Yates Push Companies to Provide More Information About Individuals

    Calling it a “big step forward” for the DOJ, Deputy Attorney General Sally Quillian Yates announced changes to the U.S. Attorneys’ Manual (USAM) on November 16, 2015 at the American Banking Association and American Bar Association Money Laundering Enforcement Conference in Washington, D.C.  “We don’t revise the USAM that often and, when we do, it’s for something important.”  The revised sections formalize the September 2015 Yates Memo by emphasizing the “primacy in any corporate case of holding individual wrongdoers accountable” including a change in cooperation credit.  See “How Will the Yates Memo Change DOJ Enforcement? (Part One of Two),” The FCPA Report, Vol. 4, No. 19 (Sep. 23, 2015); Part Two, Vol. 4, No. 20 (Oct. 7, 2015).

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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. 3 No.23 (Nov. 19, 2014)

    Supreme Court’s Refusal to Review Crime-Fraud Case Could Have Chilling Effect on Attorney-Client Relationship

    The Supreme Court has declined to review a Third Circuit decision compelling an attorney in a foreign bribery case to testify against his client, raising concerns among members of the FCPA bar that companies could be discouraged from seeking legal advice on whether payments could violate the FCPA.  “I do think it has the potential to have a chilling effect on the attorney-client privilege,” a veteran FCPA attorney told Policy and Regulatory Report, The FCPA Report’s sister publication.  See also “D.C. Circuit Confirms Applicability of Attorney-Client Privilege to Internal Investigations,” The FCPA Report, Vol. 3, No. 16 (Aug. 6, 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.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)

    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.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. 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.14 (Jul. 10, 2013)

    How Can a Company Improve Its Chances of Obtaining an FCPA Declination?

    In 2012, the DOJ publicly announced that it had declined to prosecute Morgan Stanley for FCPA violations caused by a rogue employee in Shanghai.  The declination was notable because it was publicly announced and because of the egregious nature of the misconduct involved.  See “Davis Polk Lawyers and Morgan Stanley Compliance Director Discuss DOJ’s Decision Not to Prosecute Morgan Stanley for FCPA Violations,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).  A recent program at the Momentum Event Group’s Global Anti-Corruption Congress, “Lessons Learned from Recent High Profile FCPA Declinations,” featured a panel discussion of several recent FCPA declinations.  The panelists, who were closely involved in those matters, presented their views of why the declinations were issued and how companies facing FCPA violations can improve their chances of receiving a declination.  This article summarizes the key insights from that discussion.

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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)

    Anti-Corruption Compliance Best Practices for Boards of Directors

    The board of directors is now viewed by regulators, shareholders and other stakeholders as a central bulwark in a company’s anti-corruption infrastructure – the result of a dramatic increase in FCPA enforcement actions, issuance of the joint SEC/DOJ FCPA Resource Guide and related factors.  Boards and their committees are taking a more vigorous and proactive approach to FCPA compliance and monitoring, but few board members have deep experience in the area, and fewer still are conversant with relevant best practices.  A recent Practising Law Institute panel offered insights that can help board members identify issues, ask the right questions and accurately measure corruption risk.  The panel was moderated by F. Joseph Warin of Gibson, Dunn & Crutcher LLP, and approached the issues of a board’s role in anti-corruption compliance from three perspectives: that of a seasoned board member (Nina Henderson), a prosecutor (Jason Jones of the DOJ) and outside counsel (Martin J. Weinstein of Willkie Farr & Gallagher LLP).

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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.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.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. 1 No.10 (Oct. 17, 2012)

    When and How Should Outside Counsel Withdraw from an FCPA Representation or Report Violations to Authorities?

    When an attorney discovers, or strongly suspects, that bribery is taking place, or will take place, at a company she represents, but the company refuses to act, what should the attorney do?  The recent Wal-Mart revelation that the company allegedly thwarted the 2005 recommendation of outside counsel to conduct a thorough anti-corruption investigation is just one example of a potentially difficult situation for counsel.  When should an attorney withdraw from an investigation to protect herself from being complicit in the bribery?  When should she report the client to the government?  The attorney client privilege provides significant protection for attorneys when they learn of a violation, but that protection is not iron clad, especially as authorities say that they will not hesitate to prosecute lawyers who are involved in a client’s corruption.  Additionally, attorneys must weigh their reputations with other clients and with the government.  This article provides context and practical guidance for counsel facing the thorny question of withdrawal.  In particular, this article discusses: the legal and regulatory landscape, including ABA Model Rules and SEC rules that discuss withdrawal, reporting and the scope of the attorney client privilege; recent cases where attorneys withdrew from representation or were implicated in a client’s bad acts; considerations regarding how to document the representation to ease or prevent withdrawal later; factors that influence a decision to withdraw and whether to withdraw “noisily” or not; and when and why an attorney may want to report a violation to authorities.

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  • From Vol. 1 No.7 (Sep. 5, 2012)

    Pension Fund Sues Wal-Mart to Gain Access to Documents Pertaining to Mexican FCPA Allegations

    In preparation for a possible shareholder’s derivative suit, and claiming that Wal-Mart Stores, Inc. (Wal-Mart), has “made a mockery” of the Delaware law that affords shareholders the right to inspect corporate books and records, the Indiana Electrical Workers Pension Trust Fund IBEW (Trust) has sued Wal-Mart in the Delaware Court of Chancery.  The Trust seeks access to Wal-Mart’s books and records, and the records of Wal-Mart’s Mexican subsidiary, Wal-Mart de Mexico, S.A. de C.V., that relate to their handling of allegations of corruption, bribery and violations of the FCPA in their Mexican operations.  This article provides the background of the dispute and a summary of the Trust’s allegations.

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