FCPA Flash Podcast Archive
In this episode, James Noe (special counsel with Jones Walker who previously served in various in-house counsel and executive roles with various oil and gas companies) discusses: the easiest and most difficult aspects of FCPA compliance in the oil and gas industry; the extent of facilitating payments in the industry; whether oil and gas companies are too risk averse when it comes to FCPA issues; and civil actions by industry participants when losing business because of a refusal to make bribe payments.
In this episode, Philip Urofsky (Shearman & Sterling and a former FCPA enforcement official at the DOJ) elaborates on various issues such as jurisdiction over foreign actors and parent-subsidiary issues found in the firm’s always informative FCPA Digest. Urofsky also opines on what the FCPA enforcement landscape might look like if business organizations would put the government to its burden of proof in enforcement actions.
In this episode, Kevin Abikoff (Hughes Hubbard & Reed) discusses: FCPA compliance challenges; his top two legal or policy developments in 2018 in the FCPA space; and whether the FCPA has truly been successful in achieving its objectives.
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.
In this episode, Robert Luskin (Paul Hastings) elaborates on his previous comments that foreign corporations in FCPA inquiries have real concerns about “whether U.S. lawyers are really defense lawyers or former prosecutors in a better suit” and how some FCPA practitioners are not willing to be adverse to the DOJ; (ii) discusses legal and policy issues present in FCPA actions against foreign companies; and (iii) opines whether the FCPA has been successful in achieving its objectives
In this episode, Leslie Caldwell (Latham Watkins and former Ass't AG DOJ Criminal Division): (i) offers thoughts on the DOJ’s new “FCPA Corporate Enforcement Policy”; (ii) discusses whether the differences in the new policy (compared to the 2016 FCPA Pilot Program) were considered in 2016; (iii) addresses whether the new policy represents a de facto compliance defense; and (iv) opines whether the FCPA, as it reaches 40, has been successful in achieving its objectives.
In this episode, David Pere (Bryan Cave - Paris) discusses: (i) developments in France relevant to the anti-bribery and compliance space including, most notably, the new so-called Sapin II law and the new French anti-corruption agency; (ii) what general counsel and other compliance professionals need to know about the new law and enforcement agency; and (iii) French resentment to aggressive U.S. prosecution of French companies based on sparse jurisdictional allegations.
This episode is a conversation with Claudius Sokenu. Sokenu is among a small number of individuals who has experienced the FCPA from three different vantage points. First, Sokenu was Senior Counsel at the SEC’s Enforcement Division where he worked on FCPA matters. Second, Sokenu was a partner at various leading law firms where his practiced focused on the FCPA. Currently, Sokenu is Deputy General Counsel and Global Head of Compliance at Andeavor.
In this episode, Kevin Muhlendorf (a former Assistant Chief in DOJ's Fraud Section and former Senior Counsel in the SEC's Enforcement Division) discusses: the DOJ and SEC's FCPA enforcement programs; FCPA enforcement and the rule of law; whether business organizations cooperate too much in FCPA enforcement actions including as to statute of limitation issues; and whether the FCPA - as it approaches forty - has been successful.
In this episode, Jonathan Drimmer (V.P. & Deputy General Counsel of Barrick Gold Corp. a Canadian company with shares traded in the U.S.) answers which law (the FCPA or Canada's Corruption of Foreign Public Officials Act) and its enforcement keeps him up more at night; the challenges of compliance including third party due diligence; and training best practices including whether there is compliance fatigue.
In this episode, Kara Brockmeyer (Chief of the SEC's FCPA Unit between 2011 - 2017) looks back at her time at the SEC including what she views as the most significant matters / trends; discusses a few items that, in her view, are not well-understood or appreciated about the SEC's FCPA enforcement program; explains theories of enforcement regarding the FCPA's internal controls provisions; and shares insights regarding the SEC's whistleblower program relevant to the FCPA.
In this episode, David Bitkower (former Principal Deputy Assistant Attorney General for the DOJ Criminal Division and current partner at Jenner & Block) discusses multilateral bribery settlements including whether it is ever appropriate for the U.S. to bring FCPA enforcement actions against foreign companies from OECD Convention countries. Bitkower also discusses whether the FCPA, as it approaches 40, has been successful in achieving its stated objectives.
In this episode, Neil Smith (former senior counsel in the SEC Enforcement Division and member of the SEC's FCPA Unit and current partner at K&L Gates) discusses: SEC remedies in FCPA enforcement actions, the SEC's theory of enforcement around the FCPA's internal controls provisions, the impact of the Supreme Court's recent Kokesh decision on SEC FCPA enforcement, and changes to the FCPA and FCPA enforcement that he would like to see.
In this episode, James Copland (senior fellow at the Manhattan Institute who has written extensively about NPAs and DPAs) discusses: why the increased use of NPAs and DPAs is concerning; whether the DOJ (and SEC) should abolish use of NPAs and DPAs; and whether business organizations (and their tendency to be excessively risk averse) are partly to blame for the current state of affairs.
In this episode, Milos Barutciski (Bennett Jones - Toronto) discusses Canada’s FCPA-like law, the Corruption of Foreign Public Officials’ Act. (CFPOA), including: some of the differences between the CFPOA and the FCPA; how enforcement of the CFPOA is different than enforcement of the FCPA; and whether Canadian companies subject to the FCPA are more concerned with CFPOA enforcement or FCPA enforcement.
In this episode, Shearman & Sterling attorneys Danforth Newcomb and Cynthia Urda Kassis discuss: (i) what makes potential legal liability under the FCPA or similar laws different than potential legal liability under other laws; (ii) the gap between corporate FCPA enforcement and individual FCPA enforcement; and (iii) whether a recent DOJ statement that “FCPA investigations [should] be measured in months, not years” is believable.
In this episode, Richard Grime (Gibson, Dunn & Crutcher and former Assistant Director of SEC Enforcement) discusses: (i) reasons for the general increase in FCPA enforcement (among the reasons mentioned is "the government has realized this is a money-winner"; (ii) whether FCPA enforcement, including the internal control's provisions, has been pushed beyond the breaking point (in Grime's words yes it has and "almost any conduct becomes subject to an enforcement vehicle"); and (iii) whether long, drawn-out FCPA investigations can be avoided. The episode is a must listen if you want to hear informed and candid commentary about the current FCPA enforcement landscape from someone who used to enforce the FCPA.
In this episode, Ryan McConnell (founder of the boutique Houston law firm R. McConnell Group and author of the article "Watching Which Way the Wind Blows: You Need Good Forecasting to Build Good Compliance"), discusses: (i) how many company risk assessments are fundamental flawed; (ii) how best to forecast FCPA risk; (iii) and whether the DOJ and SEC's approach to enforcing the FCPA is fair to certain companies.
In this episode, Judy Krieg (a U.S. educated lawyer in the U.K. offices of Shepherd and Wedderburn) talks about her recent post titled "UK DPAs - Have We Really Built a Better Mousetrap?" and discusses the U.K.'s emerging DPA regime; answers the above question; explains why certain recent UK DPAs "have had their accuracy and factual underpinnings questioned;" and opines whether DPAs in the U.K. going forward will be the rule rather than the exception.
In this episode, Joseph Covington (Smith Pachter and former head of the DOJ's de facto FCPA unit in the early 1980's). The podcast is a must listen for anyone seeking a better understanding of the DOJ's "early" enforcement of the FCPA. In the episode, Covington also offers a candid assessment of how FCPA enforcement has changed; whether the FCPA has been successful in achieving its objective of reducing bribery; and why he continues to support an FCPA compliance defense.
In this episode, Jay Darden (Paul Hastings and former Assistant Chief of the DOJ's Fraud Section) discusses what FCPA practitioners need to understand about being a DOJ FCPA attorney and along the same lines what DOJ FCPA enforcement attorneys need to understand about being an FCPA practitioner. Darden also provides a list of things he would change about the FCPA or FCPA enforcement and comments on recent FCPA enforcement actions concerning internship and hiring practices.
In this episode Sherbir Panag (managing partner of the New Delhi office of Panag & Babu) addresses the question of whether doing business in India is possible without paying bribes; talks about the “bribery panic” that often results in India; discusses how companies can best navigate India’s “Licence Raj”; and provides advice for how companies can “Indianise” FCPA compliance programs.
In this episode Marc Bohn (Miller & Chevalier) previews Kokesh v. SEC, a case recently accepted by the Supreme Court which presents the issue of whether a five-year statute of limitations applies to SEC claims for disgorgement. Although not an FCPA matter, disgorgement is the predominate remedy the SEC seeks in corporate FCPA actions and Bohn discusses the potential impact of the Kokesh decision on FCPA compliance, internal investigation, and enforcement issues.
In this episode Karen Popp (Sidley Austin - an FCPA practitioner with prior DOJ experience) provides her list of the top 2016 developments including: international collaboration, a DOJ initiatives "scorecard," and reflections on the Leslie Caldwell / Andrew Weissmann era at the DOJ; and the continued prominence of compliance and the potential for even greater expectations in the Trump administration.
In this episode, Andrew Levine (Debevoise & Plimpton) discusses the Nu Skin enforcement action including: (i) legal authority relevant to the FCPA's books and records and internal controls provisions; (ii) the SEC's "virtual strict liability" enforcement theory; and (iii) how FCPA enforcement actions based on charitable donations may represent a net negative because it induces excessive risk aversion by companies.
In this episode, Juliet Sorensen (a law professor at Northwestern Pritzker School of Law and co-author of the recent book "Public Corruption and the Law") discusses: (i) the many gray areas when it comes to bribery and corruption; (ii) whether the FCPA, as it nears its 40th year, has been successful in achieving its objectives; (iii) how FCPA enforcement can be improved; and (iv) other forms of corruption outside the FCPA context.
In this episode, Joseph Warin (Gibson Dunn) discusses: (i) why so few companies under FCPA scrutiny refuse to settle; (ii) why the terms of NPAs or DPAs may be worse for companies compared to going to trial; and (iv) whether the current FCPA enforcement environment would look the same if more companies opted to put the DOJ or SEC to its burden of proof.
In this episode, Matthew Wagstaff (Joint Head of Bribery and Corruption at the U.K. Serious Fraud Office) discusses: (i) whether the Bribery Act’s adequate procedures defense has motivated corporates to adopt best practices compliance policies and procedures to a greater extent than prior to the Bribery Act; (ii) the U.K. deferred prosecution agreement regime; and (iii) the meaning of “success” of an anti-corruption law.
In this episode, Mark Srere (Bryan Cave) articulates why the current FCPA enforcement environment does not offer business organizations the best positive incentives and he offers an FCPA reform proposal that he believes would. In addition, Srere critiques the hindsight driven nature of certain FCPA enforcement actions as it relates to the internal controls provisions.
In this episode, Ty Cobb (Hogan Lovells) discusses whether the SEC should formally announce an FCPA Pilot Program similar to what the DOJ announced in April 2016; the lack of judicial scrutiny of FCPA enforcement actions; what "success" means in FCPA enforcement; and dynamics relevant to foreign law enforcement actions.
In this episode, Lee Dunst (Gibson, Dunn & Crutcher) discusses his recent article and how senior executives and corporate directors have come to resent the DOJ's paternalistic commands embodied in various FCPA enforcement policies. Dunst also touches upon the "Yates Memo" and the DOJ's "FCPA Pilot Program."
In this episode, Philip Rohlik (Debevoise & Plimpton) discusses the DOJ's recent so-called "declinations" and how in none of the examples did the companies truly benefit from not being charged with a violation that they did not commit. The episode is a must listen for FCPA practitioners, in-house counsel, and others interested in the proper meaning of the term "declination."
In this episode, David Simon (Foley & Lardner) 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.
In this episode, Jonathan Pickworth (a lawyer in the London office of White & Case) discusses various aspects of the U.K. Bribery Act including the still lack of clarity regarding the so-called "failure to prevent bribery" offense as well as the "adequate procedures" defense.
In this episode, David Ogden (WilmerHale and a former DOJ Deputy Attorney General) elaborates on a 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.
In this episode, Thomas Gorman (Dorsey & Whitney and a former SEC enforcement attorney who also runs the SEC Actions blog) talks about the FCPA's books and records and internal controls provisions, expansive SEC theories of liability thereunder, and whether the time has come for an issuer to put the SEC to its burden of proof in an FCPA enforcement action.
In this episode Matt Ellis (Miller & Chevalier and founder and editor of the FCPAmericas Blog) 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.
In this episode Homer Moyer (Miller & Chevalier) 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.
In this episode, Anthony Mirenda (Foley Hoag) 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.
In this episode, Billy Jacobson (Orrick and a former Assistant Chief in the DOJ's FCPA Unit) 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.
In this episode, Colby Smith (the co-chair of the Securities Litigation Practice at Debevoise & Plimpton) discusses the prominence of disgorgement in SEC FCPA enforcement actions, the questionable use of disgorgement in FCPA enforcement actions that did not charge or find anti-bribery violations, and other notable issues in SEC FCPA enforcement actions.
In this episode, Paul Calli (an FCPA practitioner who has successfully defended individuals in FCPA trials) 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.
In this episode, Paul Pellletier (former Principal Deputy Chief of the DOJ's fraud section) 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.