The FCPA Report

The definitive source of actionable intelligence covering the Foreign Corrupt Practices Act

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By Topic: Interviews

  • From Vol. 5 No.12 (Jun. 15, 2016)

    Board Responsibility for Ethics and Compliance

    In recent months, the DOJ and SEC have made it abundantly clear that they are focused on prosecuting individuals for their part in FCPA violations. In light of this additional attention, board members and others responsible for company compliance programs must be even more diligent about meeting their obligations. In a recent conversation with The FCPA Report, Jean-Marc Levy and Susan Divers of training, advisory and education company LRN discuss the nature of a board’s compliance and ethics responsibilities and provide suggestions for how board members can fulfill their anti-corruption compliance duties. See “Directors and CCOs Share Insights on Maximizing a Board’s Impact on Compliance” (May 4, 2016).

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  • From Vol. 5 No.10 (May 18, 2016)

    Brian Ong of FTI Discusses Creating an M&A Anti-Corruption Due Diligence Game Plan and Getting the Most Out of Target Interviews

    Many companies enter into new markets and expand their businesses through mergers with, and acquisitions of, already existing entities. Due diligence on the target company has always been an integral part of the transaction so that the acquiring company can be sure it is getting what it pays for. This due diligence has traditionally been the purview of deal teams whose primary focus is on the financial elements of the deal, but recent cases have highlighted the need for companies to look into the compliance and ethics risks associated with deals as well. The FCPA Report recently spoke with certified public accountant Brian Ong, a senior managing director at FTI Consulting, about his experiences conducting M&A due diligence and what strategies companies can use to get the most out of the process. See “How to Mitigate FCPA Risk Before and After an Acquisition” (Feb. 18, 2015).

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  • From Vol. 5 No.7 (Apr. 6, 2016)

    Best Practices for Performing Compliance Program Assessments: An Interview With Pamela Passman of CREATe.org

    One of the greatest challenges companies face when performing a program assessment is measuring the strength of the program. The Center for Responsible Enterprise And Trade, also known as CREATe.org, is a non-governmental organization that has a novel approach to helping companies assess their programs. They have developed what they refer to as “leading practices” based on proven anti-corruption strategies from numerous multinational organizations and U.S. and other governmental organizations. For more insights on this unique approach to program assessments, The FCPA Report spoke with Pamela Passman, founder, president and CEO of CREATe, about their process and how it can help companies improve their programs. See also “Best Practices for Performing Compliance Program Assessments: An Interview With Susan Markel of AlixPartners” (Feb. 24, 2016).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    Breaking Down Compliance Silos and Creating a More Centralized Compliance Program

    Growing companies, particularly those expanding through mergers and acquisitions, face many challenges when trying to integrate and upgrade their anti-corruption programs.  A company may discover, for example, that various business units are approaching compliance in very different ways and have different levels of sophistication.  One way to address these issues is to move towards a more centralized compliance model, Bobby Kipp, compliance, ethics and risk management leader at PwC, explained during an interview with The FCPA Report.  Kipp recommends that companies consider a hybrid approach, centralizing some functions but allowing the businesses to be involved in implementation.  Kipp addressed the risks and benefits of using a hybrid approach and detailed the steps a company should take to break down compliance silos and create a hybrid system.  See “Creating a Values-Based Compliance Code and Recruiting Compliance Champions to Spread the Message,” The FCPA Report, Vol. 4, No. 23 (Nov. 4, 2015).

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  • From Vol. 4 No.23 (Nov. 4, 2015)

    Creating a Values-Based Compliance Code and Recruiting Compliance Champions to Spread the Message

    How can a company create a compliance policy that reflects its core business values?  Once that policy is created, how can a company spread the compliance message effectively across multiple nationalities, languages and countries?  How can it encourage employees to comply with the updated policy?  Accomplishing those goals is no easy task, Dr. Marsha Ershaghi Hames, practice leader in LRN’s education, culture and leadership advisory services department, told The FCPA Report during a recent interview.  Ershaghi Hames discussed how a company should evaluate its current code, how it can spread the message amongst employees, how it can use regional compliance champions to strengthen its messaging and more.  See also “How to Build a Compliant Culture and Stronger Company from the ‘Middle’ (Part One of Three),” The FCPA Report, Vol. 4, No. 7 (Apr. 1, 2015); Part Two, Vol. 4, No. 8 (Apr. 15, 2015); Part Three, Vol. 4, No. 9 (Apr. 29, 2015).

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  • From Vol. 4 No.19 (Sep. 23, 2015)

    Regional Risk Spotlight:  Jay Holtmeier of WilmerHale Explains How to Navigate Bureaucratic Corruption Risks in India

    As the world’s second-most populous country, India presents myriad opportunities for foreign companies to sell and manufacture their products.  As an English-speaking nation with a highly educated populace, it has also become a hub for outsourcing services such as customer relations and technical support.  On the other hand, as a legacy of its colonial past, India is highly bureaucratic and companies doing business there face an intricate web of government regulations and licensing requirements, creating corruption risk.  In this installment of The FCPA Report’s Regional Risk Spotlight series, we talk to Jay Holtmeier, a partner at WilmerHale, about how companies can best navigate corruption risks in India and build strong compliance programs while doing business there.  See also “Regional Risk Spotlight:  Thomas Firestone of Baker & McKenzie Explains How to Navigate Corruption Risks in Russia,” The FCPA Report, Vol. 4, No. 16 (Aug. 5, 2015).

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  • From Vol. 4 No.18 (Sep. 9, 2015)

    The Emperor Is Far Away: The Evolving Nature of Third-Party Risk in China

    The sheer volume of dollars that flow through the Chinese economy, combined with the evolving nature of corruption risk, make it essential that companies operating there remain ever vigilant and frequently re-evaluate the risk profile of their Chinese operations.  On September 30, Paul Hastings, EY and The FCPA Report will host a symposium in Washington, D.C. addressing how companies can mitigate risk when operating in China.  The FCPA Report’s Editor-in-Chief, Nicole Di Schino, will moderate the event.  The panelists, all recognized experts in Chinese anti-corruption, include: Nat Edmonds, a Paul Hastings partner and former FCPA prosecutor; Ananda Martin, a partner in Paul Hastings’ Shanghai office; and John Auerbach, a partner and former Greater China managing partner in EY’s fraud investigation and dispute services group.  In advance of the September 30 symposium, The FCPA Report spoke with Edmonds, Martin and Auerbach regarding one of the biggest risk areas facing companies operating in China – third parties.  For more information on the symposium please contact Nicole Di Schino at ndischino@fcpareport.com.

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  • From Vol. 4 No.18 (Sep. 9, 2015)

    Miller & Chevalier’s Ellis Offers Insights from Former SAP Employee’s FCPA Guilty Plea and SEC Settlement

    In a rare joint effort to pursue an individual, the DOJ and SEC recently reached settlement agreements with Vicente Eduardo Garcia, a former SAP vice president who orchestrated a scheme to bribe Panamanian officials.  On August 12, 2015, Garcia pled guilty to a one-count Information filed in the Northern District of California, charging him with conspiracy to violate the FCPA.  On the same day, the SEC entered a Cease-and-Desist Order in which Garcia agreed to pay a civil penalty of more than $85,000 based on substantially similar allegations.  The enforcement actions demonstrate that companies may be able to avoid liability even when their employees engage in corruption, and serve as a warning about the types of schemes prevalent in Central America.  The FCPA Report recently spoke with Matteson Ellis, a member of Miller & Chevalier and an expert on FCPA enforcement in Latin America.  Ellis explained how this case fits into a broader pattern of FCPA cases coming out of Central America in general, and Panama in particular.  He also discussed whether further actions related to Garcia’s scheme are likely and what the SEC and DOJ may be signaling about companies’ compliance programs.  See also “Corruption Risk and the Changing Legal Climate in Latin America,” The FCPA Report, Vol. 3, No. 4 (Feb. 19. 2014).

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  • From Vol. 4 No.17 (Aug. 19, 2015)

    James Tillen of Miller & Chevalier Talks 2015 Enforcement Trends and Predictions

    The first half of 2015 is behind us, providing an opportunity to reflect on new trends in anti-corruption enforcement and what companies can expect going forward.  A number of FCPA actions have made the news this year, but identifying trends and making predictions requires a more careful look at the numbers.  As part of its FCPA Summer Review 2015, Miller & Chevalier has analyzed enforcement data and identified several trends in the first half of 2015, including a noticeable increase in the number of declinations by the DOJ.  The FCPA Report spoke with James Tillen, a member of M&C and vice chair of the firm’s international department, about these trends, how companies should use them to improve their compliance programs and their negotiating strategies with the government and his predictions for the second half of 2015.  See also “Government Officials and Defense Bar Offer Insights on FCPA Enforcement, Voluntary Disclosure and Cooperation,” The FCPA Report, Vol. 4, No. 14 (Jul. 8, 2015).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    Regional Risk Spotlight:  Thomas Firestone of Baker & McKenzie Explains How to Navigate Corruption Risks in Russia

    When conducting business in Russia, multi-national companies often find themselves in the precarious position of trying to comply with local laws or traditions that conflict with international anti-corruption obligations.  Implementing policies that address this conflict in today’s political climate is a daunting task.  In this installment of The FCPA Report’s Regional Risk Spotlight series, we talk to Thomas Firestone, a partner at Baker & McKenzie, about the most pressing corruption issues in Russia and how companies doing business there can mitigate those risks using their compliance programs.  See also “Regional Risk Spotlight: William McGovern of Kobre & Kim Advises on How to Handle Corruption Risk When Doing Business in China,” The FCPA Report, Vol. 4, No. 14 (Jul. 8, 2015).

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  • From Vol. 4 No.15 (Jul. 22, 2015)

    PetroTiger’s Counsel Reveals the Defense Strategy That Led to a DOJ Declination

    Three of the company’s senior managers were involved in the bribery scheme, including the CEO (who pled guilty during his trial on June 15), and yet the DOJ declined to prosecute PetroTiger for FCPA violations – its first public declination since Morgan Stanley.  The case is a source of hope for companies with FCPA issues, Timothy Treanor told The FCPA Report.  Treanor, a partner at Sidley Austin who negotiated with the government on behalf of PetroTiger, discussed why he and his team were able to achieve such a favorable result and convince the government that this was indeed the case of a “rogue CEO.”  Treanor emphasized that he thinks the FCPA bar can get further with the government than it may expect, and discussed the self-reporting calculation, the struggle to operate a business during the government investigation, strategies for the negotiation, and more.  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.11 (May 27, 2015)

    Former Prosecutor Daniel Fetterman Speaks Out About Princelings Investigations

    The government continues to scrutinize hiring practices at banks, looking for evidence that banks are hiring the relatives of foreign officials in exchange for business advantages.  Banks are pushing back against these “princeling” investigations, reportedly lobbying the government and accusing the regulators of overreaching.   The FCPA Report spoke with Daniel Fetterman, a partner at Kasowitz, Benson, Torres & Friedman, about when the hiring of princelings crosses the line; best practices for hiring; and his views on the government’s investigation and its effect on other industries.  See “Friendly Relations? When Nepotism May Violate the FCPA,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012).

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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.5 (Mar. 4, 2015)

    Alston & Bird Experts Assess Eli Lilly’s Belated DOJ Declination

    Over two years after the SEC settled FCPA charges with pharmaceutical giant Eli Lilly, the company has announced that the DOJ has declined to bring charges relating to the same conduct.  Edward Kang, a partner at Alston & Bird, and senior associates Brian Frey and Jason Popp, discussed the compliance takeaways from the lagging declination and the enforcement climate for the pharmaceutical industry with The FCPA Report.  See “Pharma Giant Eli Lilly Agrees to $29.4 Million Consent Judgment to Settle SEC Charges of FCPA Violations Arising Out of Its Operations in Russia, China, Brazil and Poland,” The FCPA Report, Vol. 2, No. 1 (Jan. 9, 2013).

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  • From Vol. 3 No.19 (Sep. 24, 2014)

    How Can CCOs Demonstrate Compliance Program Effectiveness?

    A chief compliance officer must be able to demonstrate to management and the board that the company’s compliance dollars are providing a solid return on investment.  Meanwhile, if the company becomes embroiled in an investigation, the CCO must also be able to demonstrate to the government that the program is effective.  At the Society of Corporate Compliance and Ethics’ 2014 Compliance and Ethics Institute, Michael Ward, a former Deputy General Counsel and Vice President, Compliance Systems and Investigations for Cisco Systems and former prosecutor, discussed the metrics the CCO should use to measure the effectiveness of a compliance program; strategies for communicating the process; and the results to the relevant audiences.  See also “Measuring the Efficacy of Ethics and Compliance Programs,” The FCPA Report, Vol. 3, No. 12 (Jun. 11, 2014).

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  • From Vol. 3 No.17 (Aug. 20, 2014)

    Comparing and Contrasting Three FCPA Experts’ Advice on Negotiating FCPA Settlements

    The FCPA Report recently published a series of interviews with FCPA experts Larry Urgenson, Neil MacBride and John Buretta on best practices for negotiating FCPA settlements with the government.  Their views, drawn from their experience as prosecutors and defense counsel, at times converged and differed on salient points, such as the dynamic self-reporting calculus, how to avoid international double jeopardy and the best ways to make a presentation to the government.  Urgenson is a partner at Mayer Brown who has held key leadership positions at the DOJ; MacBride is a partner at Davis Polk and the former U.S. Attorney for the Eastern District of Virginia; and Buretta is a partner at Cravath, Swaine & Moore and a former top official in the DOJ’s Criminal Division who helped to author the DOJ/SEC FCPA Resource Guide.  We synthesize the highlights of their interviews.

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  • From Vol. 3 No.16 (Aug. 6, 2014)

    Strategies for Negotiating FCPA Settlements: An Interview with John Buretta, Cravath Partner and Former Deputy Assistant Attorney General

    Understanding how to speak the government’s language is crucial when conducting FCPA settlement negotiations.  A company that fails to convince the government that it is a trustworthy, compliant organization may experience a host of negative consequences, including larger fines and the imposition of a costly compliance monitor.  In an interview with The FCPA Report, John Buretta, a partner at Cravath, Swaine & Moore, discussed the government’s perspective on the self-disclosure calculus, effective negotiation techniques, global cooperation and more.  As a top official in the DOJ’s Criminal Division (Principal Deputy Assistant Attorney General and Chief of Staff), Buretta was a primary author of the FCPA Resource Guide.  See also our previous interviews in this series on negotiating strategies: Laurence Urgenson, Mayer Brown Partner and Former DOJ Official, Vol. 3, No. 14 (Jul. 9, 2014) and Neil MacBride, Davis Polk Partner and Former U.S. Attorney, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 3 No.15 (Jul. 23, 2014)

    Strategies for Negotiating FCPA Settlements: An Interview with Neil MacBride, Davis Polk Partner and Former U.S. Attorney

    Demonstrating to the SEC and/or the DOJ that a company is committed to compliance and that it has addressed whatever program deficiencies led to the violation is critical in FCPA settlement negotiations.  A failure to convince the government that it is trustworthy can result in, among other things, larger fines, the appointment of an expensive corporate monitor and a larger disgorgement figure.  In an interview with The FCPA Report, Neil MacBride, a partner at Davis Polk and former U.S. Attorney for the Eastern District of Virginia, shared his strategies for negotiating effectively with the government.  Drawing from his extensive experience, both as a prosecutor and a defense attorney, MacBride discussed the mechanics of meeting with the government, the self-reporting calculus, international double jeopardy and more.  See our previous interview in this series, “Strategies for Negotiating FCPA Settlements: An Interview with Laurence Urgenson, Mayer Brown Partner and Former DOJ Official,” The FCPA Report, Vol. 3, No. 14 (Jul. 9, 2014).

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  • From Vol. 3 No.14 (Jul. 9, 2014)

    Strategies for Negotiating FCPA Settlements: An Interview with Laurence Urgenson, Mayer Brown Partner and Former DOJ Official

    When a company is facing FCPA charges, it may have the opportunity to directly influence the outcome of the government’s investigation – a monitor may be deemed unnecessary, lower fines may be agreed upon and prosecutions may even be avoided.  In an interview with The FCPA Report, Laurence Urgenson, a partner at Mayer Brown and former DOJ official, shared his advice to help companies and their advisors present the company’s case in the most favorable light possible.  Drawing on his extensive experience, Urgenson provided insight into the changing self-reporting calculus, the need for an international anti-corruption protocol and the best ways to make a presentation to the government.  See also “When and How Should Companies Self-Report FCPA Violations? (Part One of Two),” The FCPA Report, Vol. 1, No. 1 (Jun. 6, 2012); and Part Two of Two, Vol. 1, No. 2 (Jun. 20, 2012). 

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  • From Vol. 3 No.11 (May 28, 2014)

    Corruption Considerations for Private Fund Managers: An Interview with Molo Lamken Partner Justin Shur

    Private fund managers are looking with increasing receptivity at emerging markets, and, in some cases, frontier markets where corruption risk is significant.  This has not gone unnoticed by the FCPA units in the SEC and DOJ, which have been focusing on bribery in the financial services industry.  See “Why the Direct Access Partners Case Matters for Financial Sector Anti-Corruption Compliance,” The FCPA Report, Vol. 2, No. 21 (Oct. 23, 2013).  The FCPA Report recently interviewed Justin V. Shur, a former federal prosecutor and now a partner at Molo Lamken LLP, about the enforcement climate, the risks the industry faces and strategies for compliance.  The interview covered, among other things: the relationship between investment control and FCPA risk; contract provisions to limit the FCPA risk raised by third parties; issues presented by deal finders and sovereign wealth funds; hiring risks and best practices; facilitation payments; and successor liability.  Shur will expand on these ideas at a complimentary event (invitation here) at 5 p.m. on June 3 at the CORE: Club in Manhattan.  The event is sponsored by Molo Lamken, The FCPA Report and our affiliated publication, The Hedge Fund Law Report.  In addition to Shur, the event will feature his partner Andrew DeVooght, panelists from Indus Capital, Seward & Kissel, Global Environment Fund and the SEC.  Please RSVP to rsvp@fcpareport.com.  A cocktail reception will follow.

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  • From Vol. 3 No.6 (Mar. 19, 2014)

    Corruption Risks and Compliance Programs in the Oil & Gas Industry: An Interview with Samuel Cooper of Paul Hastings LLP

    Oil and gas was one of the first industries the DOJ and SEC seized on when they began to focus on the FCPA a decade ago.  The corruption risk profile of oil and gas companies remains high, but recent enforcement actions that appear to be the last breaths in a few wide-ranging and longstanding investigations (such as Panalpina and Oil-for-Food) have led to speculation that the government’s attention may be focused elsewhere.  Paul Hastings’ Samuel Cooper, a partner based in the firm’s Houston office, shared his insights with The FCPA Report about corruption risk and FCPA compliance in the oil and gas industry, discussing, among other things, the dynamics of the traditionally high-risk profile of oil and gas companies, the effect on the industry of the early enforcement actions, what’s next for the sector, as well as advice for oil and gas companies (and others) for strengthening their compliance programs.  See also “Compliance Lessons from Total S.A.’s $398 Million FCPA Settlement: Foreign Cooperation, Compliance Monitors, Broad Jurisdiction and the Effect of Reluctant Cooperation with the DOJ and SEC,” The FCPA Report, Vol. 2, No. 12 (Jun. 12, 2013).

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  • From Vol. 3 No.1 (Jan. 8, 2014)

    A Perspective from the FCPA Defense Bar on Brockmeyer and Duross’ “Year In Review”: Interview with Danforth Newcomb, of Shearman & Sterling

    Companies operating internationally should pay close attention when government regulators candidly discuss the FCPA.  But how should a company interpret the government’s comments?  How much weight should be given to any individual regulator’s predictions of trends?  At ACI’s recent International Conference on the Foreign Corrupt Practices Act in Washington, D.C., Charles Duross, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, and Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, provided insight into the specific elements of FCPA enforcement that matter to leading regulators, as detailed in The FCPA Report’s two-part series.  See Part One of Two, Vol. 2, No. 24 (Dec. 4, 2013); Part Two of Two, Vol. 2, No. 25 (Dec. 18, 2012).  In an interview with The FCPA Report following that panel, Danforth Newcomb, a partner at Shearman & Sterling LLP and recognized expert on the FCPA, responded to the most pressing issues raised by Duross and Brockmeyer.  Newcomb’s no-nonsense approach to FCPA compliance and thoughtful dissection of the regulators’ comments enable in-house counsel, compliance officers and others to translate the regulators’ insights directly into actionable policies and procedures.

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  • From Vol. 2 No.18 (Sep. 11, 2013)

    Conducting Effective Anti-Corruption Due Diligence on Third Parties: An Interview with Alice Fisher, Partner at Latham & Watkins

    Engaging third parties is necessary for most global businesses, but rife with corruption risk.  Under the FCPA, a company can be held responsible for any improper payments made on its behalf by a third-party agent or partner, and most of the recent FCPA enforcement actions by the SEC and DOJ have involved the actions of third parties – making the task of conducting due diligence on third parties one of the most critical and complicated issues in FCPA compliance.  How should a company efficiently allocate its due diligence resources?  What should a company do when its third-party partner is less than forthcoming?  Can a party engage a third party even if due diligence raises red flags?  The FCPA Report is publishing a series of interviews with experts from different disciplines on best practices for conducting anti-corruption due diligence on third parties.  This article, the first in the series, includes our interview with Alice Fisher, partner at Latham & Watkins.  Fisher specializes in white collar criminal investigations, internal investigations and advising clients on a range of criminal matters, including the FCPA.  She formerly served as Assistant Attorney General in charge of the Criminal Division of the DOJ.  See also “Designing Effective FCPA Compliance Programs and Monitoring Third Parties After the Guidance: An Interview with H. David Kotz, Michael Volkov and Paul Zikmund,” The FCPA Report, Vol. 2, No. 2 (Jan. 23, 2013).

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  • From Vol. 2 No.11 (May 29, 2013)

    Digging Deep into M&A Anti-Corruption Due Diligence Best Practices: An Interview with William Michael, Partner at Mayer Brown LLP

    Anti-corruption due diligence before, during and after a merger or acquisition is an area of increasing focus for companies.  Members of the FCPA bar report that more and more of their work involves ensuring target companies are free from corruption, and handling the situation if corruption is discovered.  The FCPA Report recently spoke with William Michael, Co-Chair of the White Collar Defense & Compliance group at Mayer Brown LLP in Chicago, about his experience with these issues.  Previously, Michael served for more than 10 years as a federal prosecutor with the Department of Justice.  Among other things, Michael discussed important questions to ask during a risk assessment; strategies for negotiating for more access to the target company during due diligence; the effect of blocking statutes on due diligence; the risks and benefits of voluntarily disclosing a violation before or after a transaction; whether and how the Resource Guide clarified best practices; and advice on increasing the odds of achieving a declination from the SEC or DOJ if misconduct is discovered post-transaction.  See also “How to Perform Effective FCPA Due Diligence in Private Equity Transactions and Strategic Mergers and Acquisitions,” The FCPA Report, Vol. 2, No. 5 (Mar. 6, 2013).

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  • From Vol. 2 No.9 (May 1, 2013)

    FCPA Training That Works: An Interview with Jacqueline C. Wolff, Co-Chair of the Corporate Investigations & White Collar Defense Practice at Manatt, Phelps & Phillips, LLP

    This is the third article in our ongoing series on FCPA and anti-corruption training.  Each of the articles in the series is based on a long-form interview with a thought leader from a different discipline.  Collectively, the articles in this series provide a deep and multidisciplinary view of one of the most important processes available to companies to mitigate FCPA risk.  Our goal in this series is to provide actionable insight – recommendations, best practices and specific techniques that companies can use to improve the effectiveness of their training programs.  To advance that goal, this installment includes our interview with Jacqueline C. Wolff, a Partner at Manatt, Phelps & Phillips, LLP, Co-Chair of Manatt’s Corporate Investigations & White Collar Defense practice and former Chief of the Environmental Crimes Unit and Assistant United States Attorney for the District of New Jersey.  Our interview with Wolff delved deeply into a wide range of relevant topics, including: special considerations applicable to training different categories of employees; when to train third parties; the role of outside counsel in training; the interaction between attorney-client privilege issues and candor during training; the risks of online training; appropriate training frequency; the role of hypotheticals; minimizing cost without sacrificing effectiveness; and training lessons from the November 2012 Guidance.  The prior installment in this series included our interview with Billy Jacobson, Senior Vice President, Co-General Counsel and Chief Compliance Officer of Weatherford International, the global oil and natural gas services company.  See “FCPA Training That Works: An Interview with Billy Jacobson, Chief Compliance Officer of Weatherford International,” The FCPA Report, Vol. 2, No. 8 (Apr. 17, 2013).  And the first installment in the series included our interview with Joseph Spinelli, the head of Navigant’s FCPA practice and former Inspector General of New York State.  See “FCPA Training That Works: An Interview with Joseph Spinelli, Global Leader of Navigant’s Anti-Bribery & Corruption-FCPA Segment,” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013).

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  • From Vol. 2 No.7 (Apr. 3, 2013)

    FCPA Training That Works: An Interview with Joseph Spinelli, Global Leader of Navigant’s Anti-Bribery & Corruption-FCPA Segment

    Designing and implementing a workable and customized FCPA training program is a foundational challenge in anti-corruption compliance for all companies doing business internationally.  As the FCPA Resource Guide says, “Compliance policies cannot work unless effectively communicated throughout a company.”  As a practical matter, training is the primary channel through which companies communicate their culture of FCPA compliance and specific compliance strategies.  Done right, training is one of the most effective bulwarks against FCPA violations.  But how can companies do training right?  To answer this question, The FCPA Report is undertaking a series of interviews with experts that approach the same topic (FCPA training) from different disciplines.  This article – the first installment in that series – includes our interview with Joseph Spinelli, a Managing Director in Navigant’s Global Investigations and Compliance practice and the global leader of Navigant’s Anti-Bribery & Corruption-FCPA segment.  Spinelli has more than 30 years of forensic experience, founded the forensic practice at a Big Four accounting firm and has served in various monitorships.  See “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part Three of Three),” The FCPA Report, Vol. 2, No. 6 (Mar. 20, 2013).  Spinelli shared his views not only on how to make a training program effective in preventing bribery, but also on how to ensure the company receives maximum credit when the government is evaluating its training program.  He addressed, among other things: training third parties; which employees should be trained; specialized training for different industries; the relative merits of different technologies for training employees; training challenges, including facilitation payments; and effective training methods.

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  • From Vol. 2 No.4 (Feb. 20, 2013)

    How Can Anti-Money Laundering Laws Affect an FCPA Compliance Program? An Interview with Former FinCEN Director James H. Freis, Jr. (Part Two of Two)

    Though motivated by different statutes, anti-money laundering compliance programs and FCPA compliance programs deal with related risks.  Anti-money laundering laws are also integrally related to FCPA charges, and prosecutors use them frequently in FCPA enforcement actions across industries and geographies.  The FCPA Report recently spoke with the nation’s former top anti-money laundering regulator, James H. Freis, Jr., about a range of issues, including the role anti-money laundering laws play in FCPA cases, how financial regulators are working together across the globe to combat corruption and the corruption challenges facing the gaming industry in particular.  In this, the second part of our interview, Freis discussed, among other things: the connection between anti-bribery laws and broader financial reforms around the globe; how financial institutions can integrate their AML and FCPA compliance programs; the similarities and differences between Politically Exposed Persons and foreign officials; and the importance of high-profile FCPA enforcement.  In the first article in this series, Freis discussed, among other things: what companies should focus on when conducting corruption and anti-money laundering risk assessments and audits; how the DOJ and SEC work with FinCEN on corruption cases; and details regarding the formation, operation and future of the Egmont Group, a 130-member organization of international financial intelligence units.  See “Former FinCEN Director James H. Freis, Jr. Discusses the Intersection between Anti-Money Laundering and Anti-Corruption Law (Part One of Two),” The FCPA Report, Vol. 2, No. 3 (Feb. 6, 2013).

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  • From Vol. 2 No.3 (Feb. 6, 2013)

    Former FinCEN Director James H. Freis, Jr. Discusses the Intersection between Anti-Money Laundering and Anti-Corruption Law (Part One of Two)

    One way prosecutors have pursued the FCPA’s broad jurisdictional reach and overcome some of the inherent challenges in corruption cases has been the use of a set of powerful tools – anti-money laundering laws.  The FCPA Report spoke with the nation’s former top anti-money laundering regulator, James H. Freis, Jr., about a range of issues, including how prosecutors use anti-monetary laundering laws in FCPA cases, how financial regulators are working together across the globe to combat corruption and the corruption challenges facing the gaming industry.  Freis was the director of the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) from 2007-2012 and is now Counsel at Cleary Gottlieb Steen & Hamilton LLP.  As Director of FinCEN, Freis led the development and enforcement of regulations, fighting not only money laundering and corruption, but terrorist financing, fraud and other financial crimes applicable to a broad range of financial institutions, including banks, securities and futures industry participants and insurance companies.  We are publishing our interview with Freis in two parts.  In the first part, Freis discussed, among other things, what companies should focus on when conducting corruption and anti-money laundering risk assessments and audits; how the DOJ and SEC work with FinCEN on corruption cases; and details regarding the formation, operation and future of the Egmont Group, a 130-member organization of international financial intelligence units.

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  • From Vol. 2 No.2 (Jan. 23, 2013)

    Designing Effective FCPA Compliance Programs and Monitoring Third Parties After the Guidance: An Interview with H. David Kotz, Michael Volkov and Paul Zikmund

    Relationships with third parties are a constant pressure point for companies trying to comply with the FCPA.  How should the recently-issued FCPA Resource Guide change a company’s strategy for dealing with third parties, during and after initial due diligence?  On February 6, 2013, LeClairRyan, Berkeley Research Group (BRG) and The FCPA Report will host a complimentary CLE-eligible webinar that will address this and other pressing regulatory questions.  The webinar, entitled “After the Guidance: Designing Effective Compliance Programs and Monitoring Third Parties,” will feature three FCPA experts: former SEC Inspector General and current BRG Director H. David Kotz; LeClairRyan Partner Michael Volkov; and Paul Zikmund, Director of Global Ethics and Compliance at Bunge Limited.  Rebecca Hughes Parker, Editor-In-Chief of The FCPA Report, will moderate the webinar.  Topics to be covered include the FCPA Resource Guide’s specific requirements for compliance programs; how to review and enhance compliance programs to get maximum credit; and best practices for monitoring third parties in a cost-effective manner following initial due diligence.  To register for the webinar, click here.  As a preview of the webinar, The FCPA Report interviewed the three participants on topics including: the elements of an effective third party risk assessment and the categories it should include; the utility of open source databases; common mistakes companies make when designing risk assessments; streamlining risk assessments and due diligence; the differences between due diligence for third parties and for M&A transactions; and effective ways to monitor third parties after they are “on board.”  An edited transcript of our interview is included in this issue of The FCPA Report.

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Chamber of Commerce Speaks Out About the FCPA Guidance

    Some FCPA practitioners have observed that the recently issued Resource Guide to the U.S. Foreign Corrupt Practices Act (Guide or Guidance) directly responded to criticism of the FCPA by the Chamber of Commerce (Chamber).  See “Top Practitioners Analyze the New FCPA Guidance (Part One of Two),” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).  The Guidance did not formally amend the FCPA and is non-binding, but it did provide hypotheticals and some clarity on application and enforcement of the statute.  Was the Chamber satisfied?  The FCPA Report recently had a far-reaching discussion with Harold Kim, Executive Vice President of the Chamber’s Institute for Legal Reform (ILR), about the Guidance.  Kim has general oversight of many of the Chamber’s federal and state initiatives relating to legal reform.  In our interview, Kim discussed: the Chamber’s FCPA advocacy efforts; its reaction to the Guidance, including the Chamber’s opinion of the Guidance relating to parent-subsidiary and successor liability; gifts and hospitality; declination decisions and compliance programs; areas where the Guidance fell short; and steps the ILR will take to move its agenda forward after the Guidance.

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  • From Vol. 1 No.12 (Nov. 14, 2012)

    Alan Kartashkin and Dmitri Nikiforov of Debevoise & Plimpton LLP Discuss the Ins and Outs of Russian Bribery Law

    Russia and Ukraine are rich in business opportunities but rife with business challenges, especially for foreign companies operating there or considering entering those markets.  Both countries recently passed anti-bribery laws, thereby adding new layers of complexity to the global patchwork of domestic anti-bribery regimes.  In an effort to understand how the new Russian and Ukrainian laws are similar to and different from the FCPA and the U.K Bribery Act, and what companies and compliance professionals should do to navigate the new laws, The FCPA Report recently interviewed two prominent partners in Debevoise & Plimpton LLP’s Moscow office, Alan Kartashkin and Dmitri Nikiforov.  Specific topics covered in our interview included, among other things, the key differences between the FCPA, the U.K. Bribery Act and the new Russian and Ukrainian laws; how Russia or Ukraine can obtain jurisdiction over an American company; how Russian and Ukrainian enforcement agencies operate; key steps companies should take when entering the Russian and Ukrainian markets; data privacy laws in Russia and Ukraine; the implications of the Novo Nordisk case; and the future of Russian anti-corruption enforcement under the leadership of Vladimir Putin.

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  • From Vol. 1 No.9 (Oct. 3, 2012)

    Why the Current Regime Is Effective at “Busting Bribery": An Interview with Professor Dan Danielsen, Co-Author of the Open Society Foundations’ Report on Corruption

    The FCPA Report recently had a wide-ranging conversation with Dan Danielsen, a Professor at Northeastern University School of Law and former general counsel of Europe Online Networks, S.A. and partner at Foley Hoag LLP.  Professor Danielsen, along with David Kennedy, Professor at Harvard Law School and Director of the Institute for Global Law and Policy, authored the report “Busting Bribery: Sustaining the Momentum of the Foreign Corrupt Practices Act” (Report).  The Report was commissioned by the Open Society Foundations as a response to the Chamber of Commerce’s report, which argued for amendments to the FCPA.  Danielsen and Kennedy had complete academic freedom as to the content and conclusions drawn in the Report.  In our interview, Professor Danielsen discussed, among other things: why the costs of bribery, given the evolving global scheme, outweigh the benefits; the effectiveness of the DOJ Opinion Procedure; why a good faith compliance defense is inconsistent with the scienter requirement in the statute; how agreements with the government, such as DPAs and NPAs, are creating a regulatory jurisprudence similar to no-action letters in the securities context; companies’ reluctance to go to court and obtain judicial scrutiny; the reasonableness of the current “knowing” standard in the statute; and the need for flexibility in the definition of “foreign official.”

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  • From Vol. 1 No.7 (Sep. 5, 2012)

    Fines, Victims, the Three Buckets of FCPA Costs and FCPA Reform: An Interview with Mike Koehler, the FCPA Professor (Part Two of Two)

    The FCPA Report recently interviewed Mike Koehler, Assistant Professor at Southern Illinois University School of Law, author of the popular blog the FCPA Professor and outspoken critic of the current FCPA enforcement regime.  This article includes the second part of our interview with Professor Koehler.  In this part, Professor Koehler addresses recent Supreme Court precedent affecting corporate fines; the potential for fines to be paid to victims instead of the U.S. Treasury; the cost-benefit analysis of FCPA compliance and the three buckets of FCPA costs; his distinction between license/permit cases and government procurement cases and its importance for compliance policies and procedures; and the prospect of FCPA reform, a topic on which Professor Koehler disagrees with Judge Sporkin.  For the first part of our interview with Professor Koehler, see “Compliance Implications of the Current Enforcement Climate: An Interview with Mike Koehler, the FCPA Professor (Part One of Two),” The FCPA Report, Vol. 1, No. 6 (Aug. 22, 2012).

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  • From Vol. 1 No.6 (Aug. 22, 2012)

    Compliance Implications of the Current Enforcement Climate: An Interview with Mike Koehler, the FCPA Professor (Part One of Two)

    The FCPA Report recently interviewed Mike Koehler, Assistant Professor at Southern Illinois University School of Law and author of the popular blog the FCPA Professor.  He has testified before Congress and written extensively about FCPA issues.  Professor Koehler previously was Assistant Professor of Business Law in the College of Business at Butler University, and before that was an attorney at Foley & Lardner LLP, where he conducted FCPA investigations on behalf of companies, negotiated resolutions to FCPA enforcement actions with government enforcement agencies and advised clients on FCPA compliance and risk assessment.  In the first part of our interview, which is included in this issue of The FCPA Report, Professor Koehler spoke about the long tail on FCPA violations and the “gray cloud” that hangs over companies once they self-report, and he questioned whether companies should self-report at all.  See also “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  He also shared compliance advice in light of recent enforcement trends relating to facilitation payments, the “obtain or retain business” element of the statute and the definition of foreign officials.  In addition, Professor Koehler discussed compliance lessons arising out of the unique way the FCPA is enforced and the relative lack of judicial scrutiny of the statute.

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  • From Vol. 1 No.5 (Aug. 8, 2012)

    Anticipating and Addressing FCPA Concerns When Expanding Internationally: An Interview with Dr. Shan Nair, Founder of Nair & Co.

    The FCPA Report recently spoke with Dr. Shan Nair, the founder of Nair & Co., a firm that specializes in helping companies navigate international expansion issues, including implementing anti-corruption and compliance measures.  Dr. Nair’s firm has helped approximately 1,000 companies expand into 50 countries.  In a wide-ranging conversation with The FCPA Report, Dr. Nair shared his insight on, among other things, anti-corruption considerations when buying a company and the benefits of buying the assets and not the stock; whether a company can be liable for a third party’s actions; the proper focus of anti-corruption audits; the anti-competitive nature of the FCPA and the U.K. Bribery Act; and the global anti-corruption landscape, in particular, implications for companies doing business in India and China.

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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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  • From Vol. 1 No.2 (Jun. 20, 2012)

    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

    This article includes the second part of The FCPA Report’s in-depth interview with Brian Loughman and Richard Sibery, leaders of the Fraud Investigation and Dispute Services Practice at Ernst and Young LLP (E&Y).  Our interview focused on the critical decision points for global companies confronting anti-bribery issues when operating abroad.  We covered a lot of ground and, in the process, conveyed much of the key substance of the recent book by Loughman and Sibery, Bribery and Corruption: Navigating the Global Risks (Wiley 2012).  In light of its length and depth, we have published our interview as a two-part series.  This second part covers topics including: the dangers of petty cash; the nuts and bolts of transaction testing; FCPA-specific due diligence considerations for mergers and acquisitions; whether a company should combine an anti-corruption audit with a general audit; and best interviewing and communication techniques.  The first part of the interview dealt with the challenges of designing an effective FCPA training program, techniques of effective third party due diligence and risk assessments and other actionable topics.  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).

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  • From Vol. 1 No.1 (Jun. 6, 2012)

    Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice

    Brain Loughman is the Americas Leader of the Fraud Investigation & Dispute Services Practice at Ernst & Young LLP (E&Y), and Richard Sibery leads E&Y’s Fraud & Investigations Group within the Fraud Investigation & Dispute Services Practice.  In those roles, Loughman and Sibery have amassed deep, detailed and current experience with global anti-bribery investigations and remediation – the sort of practical know-how that only comes with extensive, on-the-ground experience.  The FCPA Report recently had the privilege of conducting a wide-ranging interview with Loughman and Sibery.  The general intent of the interview was to identify the most pressing anti-bribery issues facing global companies and specific strategies for addressing those issues.  In this sense, our interview sought to paraphrase some of the more important points made in the book recently written by Loughman and Sibery, Bribery and Corruption: Navigating the Global Risks (Wiley, 2012).  In particular, our interview covered: the challenges of designing an effective FCPA training program; the utility of certification programs; techniques of effective third party due diligence and risk assessments; issues surrounding customs payments, including the difficult issue of facilitation payments; the dangers of petty cash; the nuts and bolts of transaction testing; why M&A transactions pose unique due diligence challenges; whether an anti-corruption audit and a general audit plausibly may be combined; and best practices for interviewing and communications.  We are publishing the full transcript of our interview with Loughman and Sibery in two parts: the first part is included in this issue of The FCPA Report and the second part will be included in the next issue.

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