FCPA Professor is all about elevating Foreign Corrupt Practices Act knowledge and practical skills.
Yesterday’s post highlighted an FCPA reading list and this post highlights an FCPA listening list.
Since its launch in February 2016, the FCPA Flash podcast has provided in an audio format the same fresh, candid, and informed commentary about the FCPA and related topics as readers have come to expect from the written posts on FCPA Professor.
FCPA Flash is sponsored by the Red Flag Group and has quickly become a leading FCPA podcast with thousands listening to the episodes which feature conversations on a range of topics with leading FCPA practitioners and professionals. If you missed the twice-a-month episodes, no worries as this post links to the episodes so that you can further elevate your FCPA knowledge and practical skills.
This episode is a conversation with Philip Rohlik (Debevoise & Plimpton) during which he elaborates on points previously articulated in the firm’s FCPA Update regarding the DOJ’s recent so-called “declinations” – namely that in none of the recent examples did the companies truly benefit from not being charged with a violation that they did not commit. (For background reading, see prior posts here and here). The term “declination” has certainly become part of the FCPA vocabulary in recent years; however many conversations regarding this topic are muddied because the term lacks a definition. In the episode, Rohlik provides informed insight on recent so-called “declinations” and the episode is a must listen for FCPA practitioners, in-house counsel, and others interested in this important topic.
This episode is a conversation with David Simon (Foley & Lardner) during which Simon discusses a disconnect between where FCPA compliance resources are being spent (specifically third-party issues and gifts, travel and entertainment) and where meaningful anti-bribery compliance progress can actually be made. While some may view the general discussion of cost-effective and difference-making FCPA compliance to be provocative, it is an essential conversation to have that impacts real companies competing in good faith in the global marketplace, often in the face of seemingly inconsistent and counterproductive enforcement agency guidance.
This episode is a conversation with Jonathan Pickworth, a lawyer in the London office of White & Case. Pickworth and his colleagues at White & Case recently published a series titled “UK Bribery Act – 5 Lessons in 5 Years.” In the episode, Pickworth discusses various aspects of the Bribery Act including the still lack of clarity regarding the so-called “failure to prevent bribery” offense as well as the “adequate procedures” defense. Pickworth also opines that the U.K.’s recently adopted deferred prosecution agreement regime is a step backwards in terms of motivating corporate self-reports.
This episode is a conversation with David Ogden (WilmerHale). Previously, Ogden served as the Deputy Attorney General of the U.S. and as an Assistant Attorney General for the Civil Division of the DOJ. In the episode, Ogden elaborates on his recent speech (see here for the prior post) in which he criticized the DOJ’s “leverage based” enforcement approach. Specifically, Ogden discusses a wide range of negative consequences which flow from the DOJ’s enforcement approach. The podcast is a must listen for anyone who values the rule of law and effective law enforcement.
This episode is a conversation with Thomas Gorman (Dorsey & Whitney). Prior to private practice, Gorman spent several years at the SEC including as Senior Counsel in the SEC’s Division of Enforcement. In the episode, Gorman talks about the FCPA’s books and records and internal controls provisions using the recent Las Vegas Sands enforcement action as a guide (see prior posts here and here). In addition, Gorman responds to the following questions: whether the books and records and internal controls provisions are essentially standardless and whether the SEC, with the perfect benefit of hindsight, advances expansive theories of liability; and whether with ever-expanding theories of enforcement, the time has come for an issuer to put the SEC to its burden of proof in an FCPA enforcement action.
This episode is a conversation with Matt Ellis (Miller & Chevalier and founder and editor of the FCPAmericas Blog) during which Ellis discusses anti-corruption developments in Brazil; common barriers and distortions in Latin America that often serve as the root cause of bribery; and other anti-corruption developments in Latin America.
This episode is a conversation with Homer Moyer (Miller & Chevalier). Moyer, a “dean of the FCPA bar,” discusses whether the FCPA has been “successful,” the pros and cons of recent FCPA enforcement trends, various aspects of the DOJ’s FCPA “pilot” program, the typical length of FCPA scrutiny, and the costs of investigating potential FCPA violations.
This episode is a conversation with Anthony Mirenda (Foley Hoag) during which he discusses international arbitration – a seldom explored corner of the general FCPA space. In addition to best practices in dealing with foreign third parties, Mirenda specifically discusses how a business organization, acting consistent with best practices in dealing with foreign third parties, can nevertheless expose itself to arbitration claims by the third party and thus find itself between a rock and a hard place.
This episode is a conversation with Billy Jacobson. Jacobson has experience with the FCPA from a number of vantage points few can claim. He has been an Assistant Chief for FCPA enforcement in the DOJ fraud section. He has been a Senior Vice President, Co-General Counsel and Chief Compliance Officer for Weatherford International Ltd., a large oil and natural gas services company that does business around the world. Currently, he is a lawyer in private practice at Orrick and was previously a lawyer in private practice at other firms. In the episode, Jacobson discusses the DOJ’s FCPA “pilot program” announced in April 2016, his policy suggestions for more effective FCPA enforcement, an FCPA compliance defense and what the FCPA might look like if it was passed today (instead of 1977), and whether a business organization should put the DOJ to its burden of proof.
This episode is a conversation with Colby Smith (Debevoise & Plimpton). Smith is the Co-Chair of the firm’s Securities Litigation Practice and his practice focuses primarily on securities class action and derivative litigation, SEC and other regulatory enforcement matters, and internal corporate investigations, including those arising under the FCPA. In the episode, Smith discusses the prominence of disgorgement in SEC FCPA enforcement actions, the questionable use of the disgorgement remedy in FCPA enforcement actions that did not charge or find anti-bribery violations, and notable and disputed issues that arise in SEC FCPA enforcement actions.
This episode is a conversation with Paul Calli. Calli has done something few FCPA practitioners have done, and that is on behalf of a client, put the DOJ to its burden of proof in an FCPA case. Like other such instances of defense counsel doing just that, Calli prevailed on behalf of his client and in the podcast Calli discusses the DOJ’s rather dismal FCPA trial court record and what it says about the DOJ’s modern FCPA enforcement program and how the DOJ measures success.
This episode is a conversation with Paul Pellletier, a former Principal Deputy Chief of the DOJ’s fraud section and currently a member of Mintz Levin. Pelletier has written some excellent recent pieces on the DOJ’s FCPA enforcement program (see here and here) and in the podcast he discusses the long time periods often associated with FCPA inquiries, FCPA investigative costs, and how the DOJ can best allocate its resources to fight bribery.