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Internal Investigations: A Challenging Decision By The English Courts

Judicial Decision

A guest post today from White & Case attorneys Jonathan Pickworth, Alex Davey and Mhairi Fraser.


In recent years the UK Serious Fraud Office (SFO) has been making aggressive statements regarding assertions of legal professional privilege by corporates and has launched two significant legal cases in this area.

The first of these challenges occurred in the criminal courts regarding the Barclays Qatar investigation, which saw Barclays eventually partially waive privilege and provide the SFO with the documents requested, rather than having an acrimonious court battle on the topic – something the SFO was prepared to do. The second was a civil test case, instigated by the SFO in the UK High Court, to challenge assertions of privilege in the case of The Serious Fraud Office v ENRC.

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Checking In On Wal-Mart’s Pre-Enforcement Action Professional Fees And Compliance Enhancements


In its recent 1Q FY2018 earnings call presentation Wal-Mart disclosed $16 million in Foreign Corrupt Practices Act and compliance related expenses ($13 million for ongoing investigations and inquiries and $3 million for global compliance program and organizational enhancements). The Q1 expenses of $16 million compare to the following quarterly expenses in FY2017 (Q4 $17 million, Q3 $29 million, Q2 $ 28 million, Q1 $25 million).

Doing the math, Wal-Mart’s 1Q FY2018 FCPA and compliance-related costs is approximately $260,000 per working day.

Over the past 5 years, I have tracked Wal-Mart’s quarterly disclosed pre-enforcement action professional fees and expenses. While some pundits ridiculed me for doing so, it quickly caught on as the popular thing to do.

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Friday Roundup


Quotable, no reliable way to measure, Microsoft explains, scrutiny alert, a direct selling license in China, and offensive use of the FCPA. It’s all here in the Friday roundup.


Some think – or at least I’ve been told – that certain of my Foreign Corrupt Practices Act views are controversial or out of the “main stream” (whatever the “main stream” actually is or means). Yet, I am confident that much of what I write and talk about represents silent majority views.

Indeed, as I’ve commented before, one of the interesting things about writing about the FCPA and related issues on a daily basis is that often I just need to wait for a former FCPA enforcement official to say the same thing. 

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DOJ Compliance Counsel Hui Chen’s Recent Social Media Activity


Hui Chen is the DOJ’s Compliance Counsel and has recently become active on social media.

This recent FCPA Professor post highlighted how Ms. Chen recently called out “the lack of precision and intellectual rigor” in much compliance writing and commentary and she has since encouraged others on social media to use the #precisionmatters hastage to “hold each other accountable and tag where more precisions are needed!”

This is just one aspect of Ms. Chen’s recent social media activity.

This post highlights another aspect of Ms. Chen’s recent social media activity by including “snips” of her publicly-available social media posts. (For additional coverage, see here).

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Bio-Rad Internal Investigation Documents Highlight The Lack Of Transparency In FCPA Enforcement


The DOJ and SEC frequently speak about the importance of transparency in Foreign Corrupt Practices Act enforcement – as well they should because transparency is a fundamental tenet of the rule of law.

Those in the know however have long recognized that FCPA enforcement is seldom transparent. However, assessing this is nearly impossible in most instances because FCPA internal investigation documents are seldom in the public domain.

Yet, as highlighted in this post, certain Bio-Rad FCPA internal investigation documents were recently publicly disclosed as exhibits in an FCPA-related whistleblower action and the documents call into question the transparency of the FCPA enforcement action against the company.

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