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Personnel Moves

It was recently reported [1] that Matthew Miner [1] (Morgan Lewis) has been hired by Walmart as its Global Chief Ethics and Compliance Officer.

Miner previously served as DOJ Deputy Assistant Attorney General in the Criminal Division. While at the DOJ, Miner helped to develop various DOJ policy documents including its “inability to pay” guidance (see here [2]), the FCPA Corporate Enforcement Policy (see here [3]), and the Evaluation of Corporate Compliance Programs (see here [4]). During this 2020 FCPA Flash podcast [5], Miner discusses how these various DOJ policies are likely to be interpreted during the COVID-19 environment.

In going to Walmart, Miner will complete a rare trifecta of FCPA experience: government, private practice, and in-house.

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As highlighted in this article [6], the DOJ recently appointed David Last as Chief of the FCPA Unit. Last was previously serving as Acting Chief of the FCPA Unit. As noted in the article: ” Mr. Last is a five-year veteran of the FCPA unit, serving as a trial attorney, assistant chief and principal assistant chief before being appointed unit head. Before joining the DOJ’s fraud section, which houses the foreign bribery team, he was a federal prosecutor in the U.S. attorney’s office in Washington, D.C.”

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In a 2012 article about Walmart’s FCPA scrutiny, Breon Peace [7] (Clearly Gottlieb) correctly noted:

“Given the facts as reported by the New York Times, Wal-Mart, and individuals involved in the bribery scheme, would have a plausible statute of limitations defense to any FCPA actions-even a potential conspiracy charge. As a practical matter, companies, especially publicly held companies like Wal-Mart, typically make a strategic decision to fully cooperate with a DOJ investigation. Despite the potential success of a statute of limitations defense, a company will often make the judgment that the negative press of a protracted investigation and the uncertainty of the outcome at trial make cooperation the more prudent business judgment. The company’s hope is that it will be given credit for the cooperation and it will achieve a better outcome than if it went to trial (i.e., avoid charges, a deferred prosecution agreement, or a reduced fine).”

As highlighted here [8], Peace was recently nominated by President Biden to serve as the U.S. Attorney for the Eastern District of New York.

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