FCPA Flash – The Official Podcast of FCPA Professor
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In this episode, Joseph Moreno (Cadwalader) Moreno discusses: his recent article "When Realities Test the Limits of Your FCPA Program"; how excessive risk aversion regarding corporate hospitality can have negative consequences; what Congressional leaders in the mid-1970's who led the FCPA movement might think about certain current enforcement theories; and what might happen if certain enforcement theories were actually subjected to judicial scrutiny.
In this episode, Thomas Gorman (Dorsey & Whitney and former Senior Counsel in the SEC’s Division of Enforcement) discusses the SEC's recent report of investigation relevant to the FCPA's internal controls provisions, whether certain emerging FCPA issues could have been addressed through a report of investigation as opposed to an enforcement action, and common SEC enforcement theories including the "prevent and detect" standard not even found in the FCPA.
In this episode, Jonathan Rusch (a former official in the DOJ fraud section, former in-house FCPA counsel at Wells Fargo, and current a principal at DTG Risk & Compliance) discusses his 2016 published open memo to the DOJ for how it can do its job better and recent events such as the DOJ abandoning its prior formal compliance counsel position, the DOJ's new monitor policy and the DOJ's "anti-piling" on policy.
In this episode, Daniel Suleiman (Covington & Burling and a former senior official in the DOJ’s Criminal Division including as Deputy Chief of Staff & Counselor to the Assistant Attorney General) discusses the life cycle of FCPA internal investigations including: issues warranting an internal investigation; who should conduct the investigation; how to conduct the investigation; what to do with investigative findings; and how to properly scope investigations.
This episode is a conversation with Judge Shira Scheindlin who served as a federal trial court judge in the Southern District of New York for 20+ years. Most federal court judges go their entire career without an FCPA case being placed on their docket. However, Judge Scheindlin is an exception and during her time on the bench she refereed more disputed FCPA issues than any other federal court judge in FCPA history. During the podcast, Judge Scheindlin describes how she was largely on a judicial island when interpreting the FCPA and the difficulty of interpreting the "ambiguous" FCPA. The podcast is a must listen for anyone interested in FCPA jurisprudence.
In this episode, Keith Rosen and Pamela Reddy (attorneys with Norton Rose Fulbright in Washington, D.C. and London) discuss their recent article titled “Self-Reporting Bribery: The Ongoing Dilemma” and highlight voluntary disclosure dynamics on both sides of the Atlantic and whether the enforcement agencies are actually “shooting themselves in the foot when it comes to encouraging voluntary disclosure.
In this episode, Becky Rohr (former Principal Deputy Chief in the DOJ's Fraud Section and current Vice President at Hewlett Packard Enterprise) discusses: (i) the dynamics of post-enforcement action compliance and reporting obligations; (ii) the DOJ's suggestion in the FCPA Corporate Enforcement Policy regarding appropriate retention of business records; and (iii) her different vantage points surrounding the FCPA given her prior DOJ experience and current corporate experience.
In this episode, Bruce Searby (Searby LLP and former enforcement attorney in the DOJ's FCPA Unit) expands upon points made in an article titled "FCPA Liability for Hiring Practices Gain New Credence" including how this enforcement theory is "expansive," how "no FCPA hiring case has been tested in court," how in certain of the enforcement actions there are hints that the "government may struggle to establish all the elements required for an anti-bribery violation of the FCPA," and how "building cases against individuals may be particularly challenging."
In this episode, Harold Kim (Executive Vice President, U.S. Chamber Institute for Legal Reform) discusses recent DOJ FCPA enforcement policy developments, the continued viability of an FCPA compliance defenses, as well as the general lack of FCPA policy developments from the SEC.
In this episode, Alice Fisher (Latham & Watkins and former Assistant Attorney General in charge of the DOJ's Criminal Division) discusses: the DOJ's recent non-binding policy discouraging "piling on"; the DOJ's FCPA Opinion Procedure program; whether the DOJ's long-standing efforts to encourage voluntary disclosure have failed; whether FCPA enforcement (in terms of resolution vehicles, enforcement theories, DOJ/SEC policy, etc.) has evolved for the better or the worse since her time at the DOJ; and what about the FCPA (the actual statute) or FCPA enforcement (DOJ/SEC enforcement policy, resolution vehicles, etc.) should change and why.
In this episode, Bradley Bondi (Cahill Gordon & Reindel LLP) discusses a recent House hearing he testified at that touched upon FCPA relevant issues such as disgorgement and statute of limitation issues. In addition, based on his comment during the hearing that "few would consider a local police force successful in deterring crime if it announced record numbers of arrests year after year," Bondi opines whether the FCPA is being successful in accomplishing its objectives.
In this episode, Philip Rohlik (Debevoise & Plimpton) discusses the Dun & Bradstreet enforcement action and questions just what criminal charges the DOJ actually declined and discusses other issues relevant to the so-called declination; discusses the concerning internal controls standard the SEC invoked in the enforcement action; and takes issue with certain commentary regarding the enforcement action.
In this episode, James Koukios (Morrison & Foerster and former Senior Deputy Chief of the DOJ's Fraud Section) elaborates on various points he made in this recent article including: (i) how FCPA enforcement has made "significant and positive contributions to the development of compliance programs and standards; (ii) how regulators and prosecutors may take "unfair and impractical [FCPA] positions;" and (iii) how "FCPA enforcement should not be so puritanical as to stifle legitimate business opportunities or cause companies to overspend on ineffective compliance measures."
In this episode, Jason Prince (Holland & Hart - Boise and Washington D.C.) discusses: (i) FCPA issues for companies in the Rocky Mountain West; (ii) the similarities and differences between FCPA compliance and compliance with other export or international trade regulations; and (iii) how former Idaho Senator Frank Church (who was instrumental in crafting the FCPA) might think about the modern era of FCPA enforcement.
Adriaen Morse is among a small number of individuals who has experienced the FCPA from three different vantage points (SEC enforcement attorney, in-house counsel, and private practitioner). In this episode, Morse discusses his different FCPA vantage points including: (i) which job category of the three is the most difficult and why; and (ii) which job category of the three can best advance the objectives of the FCPA?
In this episode, Camilla de Silva (Joint Head of Bribery and Corruption at the U.K. Serious Fraud Office) discusses: whether the Bribery Act (including "hard" and "soft" enforcement) has been successful in achieving its objectives; the SFO's position on ISO 37001 (it doesn't have a position); whether the Rolls-Royce enforcement action (see here for a prior post) conflicted with Article 5 of the OECD Convention; and the U.K.'s approach to multi-jurisdictional issues.
In this episode, Gregory Paw (Pepper Hamilton) and Sandra Orihuela (Orihuela Abogados - Lima, Peru and Miami) discuss the broader ramifications in South America and Latin America of the 2016 FCPA enforcement action against Brazilian companies Odebrecht/Braskem and compliance trends in these regions in the aftermath of the notable enforcement action.
In this episode, Hannibal Kemerer (Squire Patton Boggs and a former lead lawyer for Senator Arlen Specter) discusses: why Senator Specter held an FCPA oversight hearing in November 2010; what Senator Specter hoped to accomplish in the hearing, and whether the goals of the hearing were actually accomplished. Now in private practice, Kemerer also discusses the difference between approaching FCPA issues from a a private practitioner standpoint compared to a public policy standpoint.
In this episode, Michael Goldberg (Baker Botts who represented Cobalt International Energy in connection with several instances of FCPA scrutiny) discusses his client's FCPA scrutiny, the reasons for his client's refusal to settle, the negative effects Cobalt experienced despite prevailing, and how the world of investigations is broken and who shares the blame.
In this episode, Michael Levy (Paul Hastings) discusses his article "The SEC's Unlawful and Dangerous Expansion of the Exchange Act" regarding off-the-rails SEC FCPA enforcement and provides suggestions for how enforcement can get back on track given that no issuer has ever put the SEC to its burden of proof in the FCPA's 40-year history.
In this episode, Bruce Yannett (Debevoise & Plimpton) identifies and elaborates on his list of the most notable issues from 2017: (i) the DOJ's "FCPA Corporate Enforcement Policy" and implications for self-reporting; (ii) international enforcement and the continuing rise of coordinated settlements; and (iii) the fallout from Kokesh v. SEC and how to balance SEC, DOJ and international enforcement and statutes of limitation.