Day: January 6, 2020

ComplianceLIVE Episode 11: Any Risk is a Business Risk

Post author By ComplianceLIVE
Post date January 6, 2020
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Amanda and Cailyn talk about our new studio equipment, snow, and the 8 steps to an effective annual risk assessment.
Listen to the episode:

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31 Days to More Effective Compliance Programs

Day 6 | The Code of Conduct

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Post date January 6, 2020
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What is the value of having a Code of Conduct? In its early days, a Code of Conduct tended to be lawyer-written and lawyer-driven to wave in regulator’s face during an enforcement action as proof of ethical overall behavior. Is such a legalistic code effective? Is a Code of Conduct more than simply your company’s internal law? What should be the goal in the creation of your company’s Code of Conduct?

How important is the Code of Conduct? Consider the 2016 SEC enforcement action involving United Airlines, Inc., which turned on violation of the company’s Code of Conduct. The breach of the Code of Conduct was determined to be a FCPA internal controls violation. It involved a clear quid pro quo benefit paid out by United to David Samson, the former Chairman of the Board of Directors of the Port Authority of New York and New Jersey, the public government entity which has authority over, among other things, United’s operations at the company’s huge east coast hub at Newark, NJ.
The actions of United’s former CEO, Jeff Smisek, in personally approving the benefit granted to favor Samson violated the company’s internal controls around gifts to government officials by failing to not only follow the United Code of Conduct but also violating it. The $2.4 million civil penalty levied on United was in addition to its 2016 Non-Prosecution Agreement (NPA) settlement with the DOJ, which resulted in a penalty of $2.25 million. The scandal also cost the resignation of Smisek and two high-level executives from United.
In the 2012 FCPA Guidance, the DOJ and SEC states:
A company’s Code of Conduct is often the foundation upon which an effective compliance program is built. As DOJ has repeatedly noted the most effective codes are clear, concise, and accessible to all employees and to those conducting business on the company’s behalf.
The Evaluation of Corporate Compliance Programs – Guidance Document (2019 Guidance) further specified “As a threshold matter, prosecutors should examine whether the company has a code of conduct that sets forth, among other things, the company’s commitment to full compliance with relevant Federal laws that is accessible and applicable to all company employees.” The Department of Justice (DOJ) Antitrust Division, Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (Antitrust Guidance) also specified “If the company has a Code of Conduct, are antitrust policies and principles included in the document?”
Three key takeaways:

Every formulation of a best practices compliance program starts with a written Code of Conduct.
The substance of your Code of Conduct should be tailored to the company’s culture, and to its industry and corporate identity.
“Document, Document, and Document” your training and communication efforts.

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FCPA Compliance Report

Fry Wernick on the Hoskins Jury Instructions

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Post date January 6, 2020
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In the Episode, I visit with Ephraim (Fry) Wernick. He is a partner in the Government Investigations and White-Collar Practice Group at Vinson & Elkins LLP in Washington, DC. Mr. Wernick joined V&E in June 2019 after serving 11 years as a federal prosecutor, including most recently as Assistant Chief of the U.S. Department of Justice, Criminal Division’s Fraud Section, where he supervised dozens of FCPA cases, including four of the largest-ever corporate criminal resolutions. Mr. Wernick now represents public and private companies and individuals in connection with government and internal investigations. Mr. Wernick is a graduate of Brown University and the University of Texas School of Law. In this podcast we take a deep dive into the jury instructions in the recent Hoskins FCPA trial. Some of the highlights include:

What was the procedural history of the Hoskins case leading up to trial?
The court’s agency instruction required the government to establish three elements: (1) “a manifestation by the principal that the agent will act for it”; (2) “acceptance by the agent of the undertaking”; and (3) “an understanding between the agent and the principal that the principal will be in control of the undertaking.” The court further instructed that “[t]he undertaking consists of the acts or services which the agent performs on behalf of the principal.” Hoskins’ arguments focus primarily on the element of control. Did the DOJ satisfy this element?
At trial, the DOJ presented evidence that although Hoskins worked for the French parent, for the purposes of his actions around bribery and corruption, he was the agent of the US subsidiary. What was some of evidence presented at trial to show agency? Will it be enough to satisfy the Second Circuit definition in the inevitable appeal?
At the ACI National Conference, Assistant Attorney General Brian Benczkowski said that the DOJ would analyze each case individually to determine if there was such an agency relationship present. What will the DOJ likely take into account?
Might there be further clarification from the trial court or Second Circuit?
Does the DOJ trial win against Hoskins open up wider individual prosecutions under the FCPA for foreign employees of foreign subsidiaries who may never set foot in the US?

Resources
Vinson and Elkins’ firm page on Fry Wernick