Categories
MoForecast

MoForecast: Predictions on the SEC


In this episode of MoForecast, Morrison & Foerster partner James Koukios speaks with fellow partners Michael Birnbaum, Jina Choi, and Haima Marlier about what to expect from the SEC under the new Biden Administration.

Morrison & Foerster LLP (MoFo) · MoForecast: Predictions on the SEC

James Koukios is co-chair of Morrison & Foerster’s Securities Litigation, Enforcement, and White Collar Defense Group and serves as co-head of the FCPA + Global Anti-Corruption Practice. James represents companies and individuals in high‑stakes government enforcement actions and complex internal investigations. He previously served as a federal prosecutor at the U.S. Department of Justice (DOJ), where he was the lead prosecutor in two landmark FCPA related trials: United States v. Esquenazi and United States v. Duperval. While at DOJ, James also served as lead prosecutor in United States v. AEY Inc., a defense procurement fraud and export licensing case that served as the basis for the 2016 film War Dogs. He also previously served as Special Counsel to then-FBI Director Robert S. Mueller, III.
About the Speakers
 James Koukios is co-chair of Morrison & Foerster’s Securities Litigation, Enforcement, and White Collar Defense Group and serves as co-head of the FCPA + Global Anti-Corruption Practice. James represents companies and individuals in high‑stakes government enforcement actions and complex internal investigations. He previously served as a federal prosecutor at the U.S. Department of Justice (DOJ), where he was lead prosecutor in United States v. AEY Inc., a defense procurement fraud and export licensing case that served as the basis for the 2016 film War Dogs. He also previously served as Special Counsel to then-FBI Director Robert S. Mueller, III.
James is joined in this episode by:

  • Michael Birnbaum, partner in Morrison & Foerster’s New York office, former Senior Trial Counsel at the U.S. Securities and Exchange Commission
  • Jina Choi, partner in Morrison & Foerster’s San Francisco office, former Director of the San Francisco Regional Office of the U.S. Securities Exchange Commission
  • Haima Marlier, partner in Morrison & Foerster’s New York office, former Senior Trial Counsel for the U.S. Securities and Exchange Commission

The Morrison & Foerster team is made up of talented defense lawyers, including many who once served as prosecutors and regulators. The team helps firm clients resolve their legal issues by immersing themselves in how their clients think and operate. Learn more about the firm’s Investigations + White Collar Defense and Securities Enforcement groups.
 

Categories
MoForecast

MoForecast: Predictions on Antitrust


In this episode of MoForecast, Morrison & Foerster partner James Koukios speaks with fellow partners Megan Gerking and Lisa M. Phelan about what to expect in the antitrust space under the new Biden Administration.

Morrison & Foerster LLP (MoFo) · MoForecast: Predictions on Antitrust

The MoForecast podcast series, produced by global law firm Morrison & Foerster, looks into what we saw in the legal landscape under the Trump administration and how policies might change under President Biden by leveraging the firm’s decades of private practice experience and insight from former government roles. Discover more MoForecast episodes.
About the Speakers
 James Koukios is co-chair of Morrison & Foerster’s Securities Litigation, Enforcement, and White Collar Defense Group and serves as co-head of the FCPA + Global Anti-Corruption Practice. James represents companies and individuals in high‑stakes government enforcement actions and complex internal investigations. He previously served as a federal prosecutor at the U.S. Department of Justice (DOJ), where he was the lead prosecutor in two landmark FCPA related trials: United States v. Esquenazi and United States v. Duperval. While at DOJ, James also served as lead prosecutor in United States v. AEY Inc., a defense procurement fraud and export licensing case that served as the basis for the 2016 film War Dogs. He also previously served as Special Counsel to then-FBI Director Robert S. Mueller, III.
James is joined in this episode by:

  • Megan Gerking, partner in Morrison & Foerster’s Washington, D.C. office, former trial attorney in the DOJ’s Antitrust Division
  • Lisa M. Phelan partner in Morrison & Foerster’s Washington, D.C. office, co-chair of Global Antitrust Law Practice, former Chief of National Criminal Enforcement and Washington Criminal I Sections of the Antitrust Division of the DOJ

The Morrison & Foerster team is made up of talented defense lawyers, including many who once served as prosecutors and regulators. The team helps firm clients resolve their legal issues by immersing themselves in how their clients think and operate. Learn more about the firm’s Investigations + White Collar Defense and Antitrust Law groups.
 

Categories
FCPA Compliance Report

Don Stern on the US Attorney Offices

In this episode, I am joined by Don Stern, Managing Director at Affiliated Monitors and former US Attorney for Massachusetts. We discuss the 93 US Attorneys offices across the US. How they work, how are cases worked up and their interaction with Main Justice in Washington.

Some of the highlights include:

  • What is the Dept of Justice structure including the US Attorneys?
  • What is the role of a US Attorney?
  • Is policy set at Main Justice in Washington and then carried out in offices across the country?
  • What is the relationship of the US Attorney offices to Main Justice?
  • Does a US Attorney or the office decide to open an investigation or does the FBI or other investigative agency bring information to the US District Attorney and ask them to prosecute?
  • If there is a prosecution of a Main Justice investigation, who staffs the matter at trial?
  • How are cases worked up in US Attorney’s offices?
Categories
Daily Compliance News

December 7, 2020-the Chickens Come Home edition


In today’s edition of Daily Compliance News:

  • Chick-Fil-A suing its suppliers for price-fixing. (WSJ)
  • Will Biden Administration require greater disclosure of ESG data? (WSJ)
  • More fraud at Wirecard (This is my shocked face). (FT)
  • BOE loses $67bn in cash. (NYT)
Categories
Sunday Book Review

December 6, 2020, the Mind Opening Business Books edition


In today’s edition of Sunday Book Review:

Categories
Daily Compliance News

December 5, 2020-the FCPA Year edition


In today’s edition of Daily Compliance News:

  • Chinese prof pleads guilty in Huawei theft case. (WSJ)
  • Foreign bribery enforcement set for record setting year. (WSJ)
  • Former Google employee claims termination after criticism. (NYT)
  • TikTok deadline passes (again). (NYT)
Categories
Daily Compliance News

December 4, 2020-the Bad Actors edition


In today’s edition of Daily Compliance News:

  • Vitol Paying $163MM to Settle Corruption, Manipulation Charges. (WSJ)
  • South Carolina Utility Agrees to $137.5 Million Settlement to Resolve Fraud Charges. (WSJ)
  • Will Huawei plead guilty over corruption allegations? (WSJ)
  • DOJ sues Facebook over HB-1 visa issues. (WSJ)
Categories
This Week in FCPA

Episode 231 – the 50 Days to Inauguration edition


As TrumpLand continues to live in fantasy and denial, we are on the 50-day countdown to the Biden Inauguration. Tom and Jay are back after the Thanksgiving holiday to look at some of the top compliance articles and stories which caught their eye this week.

  1. Are compliance certifications worth it? Jeff Kaplan thinks so and says so in the FCPA Blog.
  2. Does Zoom portend more FTC enforcement actions? Matt Kelly thinks so in Radical Compliance.
  3. More issues in domestic corruption for pharma? Mike Volkov takes a look in Corruption Crime and Compliance.
  4. Avoiding COIs during the holidays. Rick Burt in Navex Global’s Risk and Compliance Matters.
  5. Did France make U-turn on corporate liability? Lawyers from Debevoise explore in NYU’s Compliance and Enforcement Journal.
  6. Swiss begin SBM Offshore corruption investigation? Jaclyn Jaeger in Compliance Week. (sub req’d)
  7. What is the scope of the FCPA Internal Controls provisions? Lawyers from Shearman & Sterling discuss in JDSupra.
  8. How can a Board of Directors use data? James Howard in the Harvard Law School Forum on Corporate Governance.
  9. A new month is here and a new guest on The Compliance Life. Kim Yapchai, Chief Counsel – Environmental, Social & Governance at Tenneco Inc. In this week’s first episode we consider Kim’s undergraduate degree in economics and how this informed her decisions which led her down the path to the CCO chair. Check out the series here.
  10. My podcast with Mikhail Reider-Gordon on Wirecard was so popular we spun it out into its own series, The Wirecard Saga. Check out the latest episodes here.
  11. On 31 Days to a More Effective Compliance Program, we consider Training and Communications. Tuesday– Introduction to Training and Communications.Wednesday– Social media is a 360-degree communication strategy; Thursday-Using social media to innovate in compliance; Friday– the D&B experience with social media and 360 degrees of communications. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel. If you want to binge out and listen to only these episodes, click here.
  12. On Monday, join Tom, Neta Meidav, CEO, Vault Platform and Maxine Gee, Chief Risk Officer – UK Capital Markets and London Stock Exchange for a webinar on why culture drives compliance. Hosted by the London Stock Exchange. December 7 at 10 AM CT, 1600 GMT. Registration and information here.
  13. On Wednesday, interested in podcasting and the latest information on this great medium? Join Tom and Megan Dougherty, co-founder at One Stone Creative for review of One Stone Creative annual survey of all things business podcasting. December 9 at noon CT/1 PM ET. Details and registration here.
  14. On Thursday, join Tom, StoneTurn partner Stephen Martin and Stephanie Holmes, Director, Solution Consulting, Convercent for a Convercent/StoneTurn sponsored webinar on Using ECP Generated Data for Continuous Monitoring and Continuous Improvement. In this event you will learn what compliance metrics are available to you now. how you can use these metrics to inform each part of your compliance program and how to create a documented, auditable trail of compliance program improvements. It will be held on December 10, 12 noon CT. Details and registration here.
  15. Join K2 Integrity for two great events in December. On Dec. 14, they host a webinar on “Proliferation Financing: Risks, Threats, and Mitigation.” The webinar will explore critical issues around understanding and combatting the financing of WMD proliferation. https://bit.ly/2VujK1O. On December 17, DOLFIN and K2 Integrity’s financial crimes compliance experts will host their latest “Ask an Expert FINQuiry” webinar. Expect answers to questions on topics such as: the latest developments in AML/CFT, sanctions, fraud, anti-bribery and corruption, and export controls; financial integrity risks related to the global pandemic; and regionally focused financial crime risks. https://bit.ly/39zzhFP

Tom Fox is the Compliance Evangelist and can be reached at tfox@tfoxlaw.com. Jay Rosen is Mr. Monitor and can be reached at jrosen@affiliatedmonitors.com.

Categories
Life with GDPR

SARS and Liability Issues under GDPR

In this episode Jonathan Armstrong and Tom Fox are back to discuss issues relating to data privacy, data protection and GDPR. Today, we consider the increase in subject access requests (SARs) and other liability issues under GDPR. Recently, the UK Data Protection Authority, the Information Commissioner’s Office (ICO), issued new guidance on handling SARs. The guidance follows responses from organization of all shapes and sizes however and is clearly an indication of what the ICO is thinking. Cordery also took part in the consultation process for this new guidance. Some of the highlights are:

  1. How much have SARs increased?
  2. Why are there excessive requests?
  3. What are the ways companies can slow things down?
  4. Why are 3rd party portals so problematic?
  5. How does big data make all this more difficult?
  6. Are companies looking at data protection in the due diligence phase of M&A?

Check out the Cordery Compliance, client alert on SARs, click here. For more information on Cordery Compliance, go their website here. Also check out the GDPR Navigator, one of the top resources for GDPR Compliance by clicking here.

Categories
Popcorn and Compliance

Darth Vader, Rogue One and the Myth of the Rogue Employee


In honor of David Prowse, the original actor portraying Darth Vader, I am running a podcast series this week on the intersection of compliance and Star Wars. Today, I consider at the only stand-alone entry in the Star War series, Rogue One. This movie tells the tale of the spies who stole the schematics from the original Death Star and transmitted it to Princess Leia and thereby the Rebel Alliance. Rogue One is the first film in the Star Wars Anthology series, a series of stand-alone spin-off films in the Star Wars franchise. It is not clear where the name of the movie came from; although my personal nomination is that in the attack led by Luke on the original Death Star, his squadron was Rogue Two so the movie title is a tribute to those Rebel Alliance X-wing fighters and their pilots. It informs the myth of the rogue employee.
As long as 25 years ago, Lynn S. Paine wrote about the myth of the rogue employee in the Harvard Business Review (HBR), in an article entitled “Managing for Organizational Integrity”. In this article she wrote, “executives are quick to describe any wrongdoing as an isolated incident, the work of a rogue employee. The thought that the company could bear any responsibility for an individual’s misdeeds never enters their minds. Ethics, after all, has nothing to do with management. In fact, ethics has everything to do with management.” How prescient she was in her article.
For it is management who sets the tone throughout the organization, whether that is something along the lines of a wink and a nod towards ethics and compliance or the more ubiquitous miss your numbers for two quarters and you will be history, Paine noted, “More typically, unethical business practice involves the tacit, if not explicit, cooperation of others and reflects the values, attitudes, beliefs, language, and behavioral patterns that define an organization’s operating culture. Ethics, then, is as much an organizational as a personal issue.”
However, a company’s responsibility is more than simply to set the right tone then sit back and do nothing. The drafters of the Foreign Corrupt Practices Act (FCPA) recognized this when they included the requirement for internal controls to be included in the law. For, as Paine said, “Managers who fail to provide proper leadership and to institute systems that facilitate ethical conduct share responsibility with those who conceive, execute, and knowingly benefit from corporate misdeeds.”
Yet the myth of the rogue employee is more than a simple myth. It is also a dangerous myth. It is dangerous because it excuses negligent or intentional corporate behavior. Mike Volkov, in a blog post entitled “The Myth of the Rogue Employee”, noted that illegal conduct such as that under the FCPA does not occur “in a vacuum.” He explained “There are other employees with whom the person interacts, there are financial controls in place to protect against such misconduct, there are reporting mechanisms for employees to report suspicious activity, and there is likely to be someone in the organization who is close enough to the bad actor, or responsible for the conduct of the bad actor, and who suspected or should have suspected that the actor was engaged in misconduct.” Moreover, the more sophisticated the scheme, the more actors are involved and the more controls are overridden or disregarded as he explained, “As the misconduct becomes more complicated, like in the case of bribery or antitrust violations, where such schemes require additional actors or raise red flags or where others are in a position to know or suspect that misconduct may have occurred”.
The three basic tenets of a best practices compliance program are to prevent, detect and remedy. By claiming employees who engage in bribery and corruption have ‘gone rogue’; companies are attempting to divest themselves of responsibility for actions from which they benefit, particularly if the bribery and corruption generated business sales and revenue.