The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) announced a Foreign Corrupt Practices Act (FCPA) enforcement action. To say that the respondent company, Stericycle, Inc. (Stericycle) had a culture of non-compliance throughout its entire Latin American (LATAM) business unit belies those companies which only have a dysfunctional culture. Stericycle had a culture of corruption burned into the DNA of the LATAM business unit which was so thorough that it was documented via bribery spreadsheets and analysis of revenue based on payments of bribes in LATAM.
Yet even with this corrupt culture, Stericycle also demonstrated how a company can take advantage of the discounts available under the FCPA Corporate Enforcement Policy by extensive cooperation and remediation during the pendency of the FCPA investigation, as the criminal penalty reflects a 25% reduction off the bottom of the applicable US Sentencing Guidelines fine range.
The Stericycle enforcement action also provides insights into how the DOJ will implement the remarks made by Lisa Monaco last October on their new approach to FCPA enforcement. Finally, Stericycle agreed to a two-year corporate monitor under both the DOJ and SEC settlements. In short, there is much to unpack from this enforcement action which I will do so over the next few blog posts.
According to the Information and Deferred Prosecution Agreement (DPA), Stericycle entered into a three-year DPA. Stericycle agreed to a criminal Information, which charged the company with two counts of conspiracy to violate (1) the anti-bribery provision of the FCPA, and (2) the FCPA’s books and records provision. Stericycle agreed to a criminal penalty of $52.5 million. According to the DOJ Press Release, the DOJ agreed to credit up to one-third of the criminal penalty against fines the company pays to authorities in Brazil in related proceedings, including an amount of approximately $9.3 million to resolve investigations by the Controladoria-Geral da União (CGU) and the Advocacia-Geral de União (Attorney General’s Office). According to the SEC Press Release, Stericycle consented to the SEC’s cease-and-desist order that it violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA, and agreed to pay approximately $28.2 million in disgorgement and prejudgment interest. The SEC’s order provides for an offset of up to approximately $4.2 million of any disgorgement paid to Brazilian authorities.
Assistant Attorney General Kenneth A. Polite, Jr. of the Justice Department’s Criminal Division said in the DOJ Press Release, “Stericycle today accepted responsibility for its corrupt business practices in paying millions of dollars in bribes to foreign officials in multiple countries. The company also maintained false books and records to conceal corrupt and improper payments made by its subsidiaries in Brazil, Mexico, and Argentina. Today’s resolution demonstrates the Department of Justice’s continuing commitment to combating corruption and protecting the international marketplace.”
Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division said, “Today’s resolution with Stericycle shows that the FBI and our international law enforcement partners will not allow corruption to permeate domestic or international markets. The consequences of violating the FCPA are clear: Companies that bribe foreign officials for business advantage will be held accountable.” Finally, Eric I. Bustillo, Director of the SEC’s Miami Regional Office, said in the SEC Press Release, “Stericycle rapidly expanded in Latin America without any meaningful oversight or compliance measures, as evidenced by widespread bribery schemes lasting for many years in most of its Latin America operations. Companies in pursuit of global expansion cannot disregard the need for appropriate controls.” Damning words all but they had lessons for the compliance professional from this matter.
As part of the DPA, Stericycle has agreed to continue to cooperate with the department in any ongoing or future criminal investigations relating to this conduct. This could well mean additional criminal charges may be brought against any number of individuals known to the DOJ, as identified in the Information. In Brazil, the following persons, Stericycle LATAM Executives 1 & 2, Stericycle Brazilian Executives 1-3, and Stericycle Argentina Executive 1 were named in the Information. Also interesting was the active assistance of sister anti-corruption enforcement groups in Brazil and Mexico, which were both identified by the DOJ and SEC as helping.
It was also interesting to note that under the DOJ Press Release, it noted that while “Stericycle has taken extensive remedial measures, it has not fully implemented or tested its enhanced compliance program, necessitating the imposition of an independent compliance monitor for a term of two years. Stericycle agreed to continue to enhance its compliance program and to retain an independent compliance monitor for two years, followed by self-reporting to the department for the remainder of the term.”
Regarding the final settlements with the DOJ and SEC; they both agreed to their respective resolutions with Stericycle based on several factors, including, among others, the company’s failure to voluntarily and timely disclose the conduct that triggered the investigation and the nature, seriousness, and pervasiveness of the offense. Although Stericycle did not self-disclose their illegal conduct to the DOJ or SEC, they did receive full credit for cooperation with both the agency investigations and engaged in extensive remedial measures. As noted above, this led to a 25% discount off the range suggested under the Sentencing Guidelines, saving Stericycle between $25 million to $30 million from their final criminal fine.
Finally, the Stericycle FCPA enforcement action is notable for the company’s use of code words to discuss bribery in its routine emails and other business correspondence. While chocolates and incentive payments (IPs) have been used before by other companies, cookies are now added to the bribery lexicon as a moniker for payment bribes.
Join us in our next blog where we consider the bribery schemes.
Tag: FCPA
As the NY Mets have the best record in baseball and we prepare for the celebrations of Easter and Passover, Tom and Jay are back to look at some of the week’s top compliance and ethics stories in the Ng Convicted edition.
Stories
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- Roger Ng was convicted. Tom in the FCPA Compliance and Ethics Blog.
- Lessons from DOJ’s first cyber fraud settlement? Annie Hudgins in the FCPA Blog.
- Depression as corporate materiality issue. Dick Cassin in the FCPA Blog.
- Should CCOs be required to certify compliance programs? Mike Volkov in Corruption Crime and Compliance.
- CEO fined by SEC for impeding whistleblower. Aaron Nicodemus in Compliance Week. (sub req’d) Matt Kelly in Radical Compliance.
- How much BOD oversight of compliance is enough? Jeff Kaplan in Conflict of Interest Blog.
- Compliance in recessionary times. Jim DeLoach in CCI.
- Water and corruption. Rick Messick in GAB.
- Why should an organization disclose diversity information? Antinuke Adrian in Harvard Law School Forum on Corporate Governance.
- Data governance best practices. Eray Eliaçik in Data Economy.
Podcasts and More
- Tom visits with Matt Galvin and Dan Kahn over a 2-part podcast series. In Part 1, they talk about dealing with the DOJ during an FCPA investigation and thereafter.
- Into Star Trek, then join Tom and John Champion, who is on a 15-year mission to do a podcast on every episode of Star Trek, television, movie, and animated show on the podcast MissionLogPodcast.com. In Part 1, from TOS up to the start of TNG. In Part 2, from TNG to today.
- This month on the Compliance Life, I visit with Susan Divers, Director of Thought Leadership at LRN. In Part 1, academic life and early professional career. In Part 2, she moves to the corporate world.
- Why should you attend Compliance Week 2022? Find out on this episode of From the Editor’s Desk. Listeners get a $200 discount to CW 2022 with the code Fox200. More here.
- Join Tom and Jay at ECI Impact 2022. Listeners to this podcast can save 20% off registration
by entering discount code: TOM20 at checkout. - Welcome back, Sam Rubenfeld.
Tom Fox is the Voice of Compliance and can be reached at tfox@tfoxlaw.com. Jay Rosen is Mr. Monitor and can be reached at jrosen@affiliatedmonitors.com.
Attorney David Simon joins us to share his expertise on the essence of G in ESG, the responsibilities of compliance practitioners, how lawyers are the perfect fit for ESG, and the importance of practicing authenticity and integrity in compliance.
▶️ The Meta Contract and Compliance in Governance with David Simon:
Key points discussed in the episode:
✔️ David Simon defines the meta contract as taught by Professor Alan Morrison in his Governance and Ethics course at Oxford University.
✔️ Procedures and internal controls should be given attention in the ESG space.
✔️ The meta contract is the corporation’s word. It can also be the organization’s brand, culture, and purpose for existing. It embodies what your business is all about.
✔️ Integrity and authenticity are the two key concepts companies must adhere to when applying ESG. Businesses should be real with their values and rank their stakeholders accordingly.
✔️ The FCPA has become a “one-stop-shop” for compliance, providing frameworks and roadmaps. But for any advances to happen, companies must adjust their programs focusing on their individual business risks.
✔️ Compliance professionals and lawyers shine in ESG roles. Their skillset suits the responsibility of reporting back to the C-levels. They can take meta contracts and enforce them consistently through accurate data tracking and providing feedback.
✔️ The meta contract is an implicit representation of how companies follow legislation. Breaking it is a violation of trust among consumers and their community.
David W. Simon is a litigation attorney who devotes much of his practice to helping corporate clients avoid and manage crises that potentially give rise to government enforcement actions. He provides compliance advice, conducts internal investigations, defends companies against enforcement actions, and represents companies in litigation.
The Foreign Corrupt Practices Act is a principal focus of Mr. Simon’s practice. He also has extensive experience representing clients in antitrust matters and in defending False Claims Act investigations and litigation.
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Do you have a podcast (or do you want to)? Join the only network dedicated to compliance, risk management, and business ethics, the Compliance Podcast Network. For more information, contact Tom Fox at tfox@tfoxlaw.com.
Categories
Roger Ng Verdict – Guilty
The Roger Ng Foreign Corrupt Practices Act (FCPA) trial has now concluded its jury phase. Last week the jury came back with a stunning victory for the prosecution with a guilty verdict against defendant Ng. Stewart Bishop, writing in Law360, said the jury deliberated over 16 hours over four days to arrive at the verdict. The trial, which lasted over two months, was one of the most extensive FCPA cases tried in recent memory. Probably the last such big FCPA trial were the two Gun Sting cases where two different sets of defendants were tried in 2011. The jury hung in both cases, the trial judge declared mistrials and the government eventually dismissed all pending charges against the defendants.
In the Ng case there were three clear issues the jury had to wade through to get to its verdict. The first was the veracity or lack thereof of key prosecution witness Timothy Leissner, a serial liar who was the backbone of the government’s trial testimony against Ng. As Bishop noted, “Leissner was pilloried on cross-examination over his admissions to extensive lies for years in both his professional and personal lives. He admitted to being married to two different women at the same time, twice, and lying about it. He also admitted to forging divorce documents and committing immigration fraud, as well as stealing.”
However, Leissner provided crucial testimony against Ng. Bishop noted, “Over the course of 10 days on the witness stand, Leissner said Ng was intimately involved in the scheme and placed him at a key 2012 London meeting with Low, Leissner and others in which Low laid out what government officials — including the former prime minister of Malaysia and an influential sheikh in Abu Dhabi — had to be bribed to ensure the bond deals went through.”
The second issue was the documentary evidence. The reason it was so critical was because it gave the jury evidence to convict Ng but in a way that they did not have to believe or even give any credence to the testimony of Leissner. To present this documentary evidence, the government brought forward FBI agent Eric Van Dorn, a forensic account. As reported by Patricia Hurtado and David Voreacos in Bloomberg, in this phase of the trial and perhaps most “central to the government’s case was an FBI chart showing that Leissner sent $35 million of the booty to a shell company controlled by Ng’s wife, Lim.” It was Van Dorn who explained the chart to the jury.
According to Tarani Palani, writing in The Edge, Van Dorn testified that “on March 14 that transfers of ill-gotten gains were made to entities and accounts under Tan Kim Chin, Ng’s mother-in-law. About US$35.1 million was transferred to the account of Silken Waters Victoria Square, whose beneficiary is Tan. This was effected through four separate transactions over 2012 and 2013 and stemmed from the first and third 1MDB bond deals, codenamed Project Magnolia and Catalyze.” From there, “The money transferred to Silken Waters was then funnelled through various other bank accounts that were either Tan’s bank accounts in UBS and Deutsche Bank or a joint bank account she held with her daughter, Ng’s wife Lim Hwee Bin, in OCBC Singapore and OCBC Malaysia.”
The final issue for the jury was the defense which consisted of Ng’s wife testifying to the source of this $35 million. According to Luc Cohen, writing in Reuters, “Ng’s wife, Hwee Bin Lim, testified on Monday that shortly after Ng began working for Leissner in the mid-2000s, she invested 48 million yuan – about $6 million at the time – at a Chinese company owned by the family of Leissner’s wife, Judy Chan.” It was allegedly this $6 million investment which grew into the $35 million funneled to shell companies controlled by Ng. The first problem for the defense is that Lim was “tied into knots” during her cross, according to one court watcher. But the bigger problem was that Lim, who is a corporate lawyer by professional training, had ZERO documents to back up her claims. She had no agreement with Chan regarding the original investment. She had no annual (or indeed any) statement which would show the status of the investment during the six-seven years the money was invested. Finally, she had no documents when the investment was concluding showing the arrangement was over or even the final payout.
At this point, we do not know who or what the jury believed or who or what the jury did not believe during its deliberations. The jury has not said anything save one comment which was reported by Hurtado as “outside the courtroom a juror who declined to give his name stopped briefly when asked about the outcome. “I have said all I have to say in the courtroom today with my verdict,” he said.” Not very enlightening as to what the jury may or may not have believed.
There will no doubt be an appeal of this verdict. Hurtado reported defense counsel Marc “Agnifilo said, he would challenge the conviction before Brodie, particularly on the charge Ng conspired to violate U.S. anti-bribery laws by circumventing Goldman’s internal accounting controls. During the trial, Agnifilo and prosecutors agreed this was the first time the charge had been considered by a federal jury. “We’ve never been here before — it is all brand new territory,” he said after the verdict.”
What does all this mean for the Department of Justice? First and foremost, it will excise the ghosts of the Gun Sting trial debacles. While this criminal was originally filed several years ago, it could well be a starting point for a reinvigoration of the Yates Memo and the prosecution of individuals in FCPA criminal actions as suggested by Deputy Attorney General Lisa Monaco in her speech before the ABA White Collar Section last October. Procedurally, it demonstrates that even if you have a pathological liar on the witness stand, if you present documentary or other tangible evidence which support their testimony, the jury can believe that the documents or records are not lying. Such documentary evidence can also uphold a verdict on appeal. Finally, if your defense is so implausible as to defy common sense, you had better have something other than a fanciful story and faulty memory to back it up.
But there is still the post-trial motion for significant discovery abuse by the prosecution as well as the legal issues noted above. There is still much to go on down the road.
And Timothy Leissner has yet to be sentenced. His sentencing is set for July 6.
This episode of the FCPA Compliance Report begins a special two-part series with two well-known compliance professionals. Matt Galvin, most recently the CCO at AB-InBev and Dan Kahn, former acting Deputy Assistant Attorney General of the Criminal Division, Chief of the Fraud Section, and Chief of the FCPA Unit. Dan is now in private practice at DavisPolk. In this Part 1 we take up the key issues around dealing with the DOJ including the factors which go into the decision to self-disclose, incentives and disincentives in compliance programs, internal investigations including who is involved and scoping an investigation, presenting information to the DOJ during the pendency of an investigation and negotiating the final settlement and post-resolution; including both ongoing reporting and continuing innovation in your compliance program.
Resources
Matt Galvin on LinkedIn
Dan Kahn at Davis Polk
Categories
Roger Ng Trial Goes to the Jury
The Roger Ng Foreign Corrupt Practices Act (FCPA) trial has now concluded its testimony phase, the parties have closed and the decision on freedom or not for Ng rests with the jury. The closing arguments highlighted the strengths and weaknesses of both parties’ positions in the trial. As reported by Patricia Hurtado, writing in Bloomberg, the prosecution’s closing assailed Ng’s defense based upon the testimony of Ng’s wife, Hwee Bin Lim, who testified that a “$35.1 million infusion of capital into a shell company she controlled was not a kickback for her husband in the 1MDB scheme, but was from an unrelated, legitimate business transaction.” Luc Cohen, writing in Reuters, said that “Ng’s wife, Hwee Bin Lim, later testified for the defense that the business venture was, in fact, legitimate. She said she invested $6 million in the mid-2000s in a Chinese company owned by the family of Leissner’s wife at the time, and the $35 million was her return on that investment.”
The biggest problem for the prosecution was its star witness Timothy Leissner. From his innocuous “lying a lot” admission, the government had to both depend on Leissner’s testimony and distance itself from it, largely at the same time. In the former category, Cohen wrote that “Leissner said the men (he and Ng) agreed to tell banks a “cover story” that the money was from a legitimate business venture between their wives and that Alixandra Smith, a prosecutor, said in her closing argument that other evidence backed up Leissner’s testimony.”
In the latter category, Matthew Goldstein, writing in the New York Times, said “A federal prosecutor told jurors on Monday that they had received enough evidence to convict a former Goldman Sachs banker for his role in one of the biggest international money laundering and bribery schemes even without the testimony of the government’s star witness.” He went on to note that the prosecutor claimed Leissner had selected moments of truthful testimony, writing “Mr. Leissner did not lie when he testified in federal court in Brooklyn to the key facts of the scheme, which was funded by a series of bond offerings that Goldman arranged for the 1MDB fund.”
The defense assailed Leissner and his testimony in their grueling 6-day cross examination, where Leissner “admitted to lying a lot in life. He was forced to admit to initially lying to federal agents, to his fellow partners at Goldman and to his wives and girlfriends.” At closing, Ng’s attorney “said Mr. Leissner was a man who “will lie if it suits his interest.” He said that, despite what the prosecution had said, without Mr. Leissner’s testimony the government could not connect Mr. Ng to the conspiracy to steal billions from the 1MDB fund. There is no evidence that connects Roger. There is not a dirty email. Not a bad text message.”
Interestingly, in the prosecution’s rebuttal, another prosecutor, Drew Rolle appeared to change tactics to defend and rehabilitate Leissner. Stewart Bishop, writing in Law360 said “Rolle also mounted a last-ditch defense of Leissner. Tim Leissner came in here, took the stand and told you the unvarnished truth,” Rolle said. “It was painful, but that’s what has to happen, because it’s the truth.” When you must try and rehabilitate your story witness on rebuttal, it is never a good sign.
Finally in an interesting twist, Hurtado reported that “The jury in the 1MDB conspiracy case against former Goldman Sachs banker Roger Ng has asked to review testimony from his wife that the defense says is key to its case. After seven weeks of testimony in federal court in Brooklyn, New York, the jurors deciding the fate of Goldman Sachs Group Inc.’s former head of investment banking in Malaysia made the request soon after they began their deliberations on Tuesday afternoon.” Trial lawyers and trial watchers are continually trying to read signs from the jury. It seems to me that this request means that the jury took Ng’s defense to heart through the testimony of his wife about the source of the family’s funds.
We all now have to sit back and wait for the jury to return with its verdict. If the jury comes back with a guilty verdict, it will bolster the Department of Justice’s (DOJ) attempts to hold individual actors culpable for their actions in engaging in FCPA violations and other white collar crime involving corporations. If the jury comes back with a not guilty verdict in the wake of the largest corporate FCPA fine and penalty, against Ng’s former employer Goldman Sachs, it could bode poorly for DOJ attempts to hold individuals accountable in similar cases or even other cases of fraud cases going forward. If there is a not guilty verdict in the Ng and you couple it with the recent not guilty verdict in the prosecution of Mark Forkner, the former chief technical pilot at Boeing responsible for the 737 Max, it may well point to the difficulties of trying to hold employees at large corporations responsible.
Mike Volkov said of the Forkner verdict, “Juries often bring justice to deliberations and verdicts. In the Boeing case, the jurors saw through the government’s lack of fairness – Boeing officials were not charged – only a chief technical pilot was held accountable. The fundamental flaw in this approach is that even assuming that Forkner engaged in misconduct, his actions or failures to act occurred in the context of an organization with colleagues, supervisors and other senior officials ultimately responsible for Boeing’s actions.” He concluded “Forkner’s defense attorney argued to the jury, “This was a massive corporate failure, and Boeing simply needed someone to pin it on.” The jury agreed.”
Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigations. In this podcast host Tom Fox and members of the Hughes Hubbard Anti-Corruption & Internal Investigations practice group will highlight some of the key legal issues involved in white collar and other investigations, both domestically and internationally. In this first episode, I visit with Mike Huneke on discovery dispute in the US v. Coburn criminal action.
Mike Huneke is a Hughes Hubbard & Reed partner who has spent his career in both Washington, DC and Paris, France. For his entire 17-year career Mike has been practicing in the anti-corruption space, on everything from investigations and government resolutions, acting as “buffer counsel” to companies subject to compliance monitors, third party and M&A due diligence, and proactive risk assessments and second-level compliance reviews. Most recently, Mike and his Hughes Hubbard colleagues were recognized for their role on the Airbus case by Global Investigations Review.
Key areas we discuss on this podcast are:
- Individual defendants are wildcards in matters involving privilege claims in FCPA investigations.
- The dangers of the over-assertion of privilege to the DOJ and to the Courts.
- The false comfort of “oral” disclosures.
- The “personal jurisdiction” discussion by the Court.
- Beware civil discovery in criminal cases.
Resources
Hughes Hubbard & Reed website
Mike Huneke bio
Anti-Corruption and Internal Investigations Practice Group
US v. Coburn, Judge McNulty decision
In this episode of the FCPA Compliance Report, I am joined by Stewart Bishop, reporter at Law360. We discuss his coverage of the Roger Ng trial currently ongoing in New York. Highlights in include:
· Roger Ng relationship to 1 MDB scandal.
· Pre-trial issues.
· Timothy Leissner, direct and cross.
· Assessing the judge and jury.
· The discovery dispute.
· Covering such a lengthy trial.
Resources
The Compliance Podcast Network is thrilled to announce its latest podcast, All Things Investigations, a podcast from the law firm Hughes Hubbard & Reed LLP’s Anti-Corruption & Internal Investigations practice group. The group represents many of the premier companies around the world, providing advice on issues spanning the full anti-corruption and compliance spectrum. In this podcast host Tom Fox and members of the Hughes Hubbard Anti-Corruption & Internal Investigations practice group will highlight some of the key legal issues involved in white collar and other investigations, both domestically and internationally. We will tackle topical issues involved in investigations as well as explore how companies can help prevent and detect issues that arise in conducting business on a worldwide basis.
The inaugural episode features partner Mike Huneke, who has spent his career in both Washington, DC and Paris, France. For his entire 17-year career Huneke has been practicing in the anti-corruption space, on everything from investigations and government resolutions, acting as “buffer counsel” to companies subject to compliance monitors, third party and M&A due diligence, and proactive risk assessments and second-level compliance reviews. Most recently, Huneke and his colleagues were recognized for their role on the Airbus case by Global Investigations Review.
The subject of the podcast is the recent US District Court decision by Judge Kevin McNulty in the criminal case of US v. Coburn. McNulty is overseeing the criminal charges against former Cognizant Technology Solutions Corporation (Cognizant) executives Gordon J. Coburn and Steven Schwartz (Coburn; Schwartz or defendants) alleging violations of the Foreign Corrupt Practices Act (FCPA). Defendants had sought discovery from the Department of Justice (DOJ) consisting of materials turned over by counsel for Cognizant (outsourced investigation firm) to the DOJ in the company’s FCPA investigation. The defendants argued that Cognizant waived privilege over a broad category of documents when it disclosed a summary of its investigation findings to DOJ. The waiver, they argued, included “any communications regarding conduct alleged in the indictment and any materials related to Cognizant’s internal investigation.” Cognizant maintained that it did not waive the privilege over the entire internal investigation as the result of simply cooperating with DOJ or disclosing portions of investigative documents.
According to Huneke, Judge McNulty’s decision went back to “first principles. Why are we here? What are we doing? If you are sharing with the United States government privileged information, you have waived privilege by doing so.” That is not particularly controversial or new, but, as Huneke noted, “Judge McNulty then further granted a very broad waiver, a subject matter waiver of the privilege. Not only were interview memorandum from which external counsel read summaries to the government considered to have lost the protection of attorney-client privilege, but all documents supporting those memoranda, cited in those memoranda, drafts, notes or anything else based on which those memorandum were prepared were all ordered by Judge McNulty to be produced.”
It was this second step which Judge McNulty took that garnered much attention in the white-collar defense and FCPA defense bar. While Judge McNulty did not criticize making an oral presentation, he did say that if counsel makes an oral presentation to the DOJ, the underlying basis of that presentation is also not privileged and subject to discovery. Huneke noted, “it underscored there’s no kind of magic secret or magic protection that you get by doing something orally rather than in writing. I think there is a natural preference to maybe have an initial conversation orally with the government. This underscores the importance of reducing it to writing very soon afterwards. I assume that some of the thought behind giving an oral presentation and maybe not reducing it to a writing later is an idea that maybe you have some flexibility afterwards or there’s room to argue. If you are going to waive privilege anyway, it is probably a good practice to document what you think you said. Not only so that you and your client can anticipate what the potential waiver might be, but also to help you later, if you do have to make arguments against individuals who are pleading not guilty and fighting the prosecution about where the waiver line might have been drawn.”
Employees who are individually charged are really the “wild cards” in all of this. Huneke said, “they have nothing to lose at this point. Companies are ongoing concerns for them, the important thing is to resolve the matter and move on and get out.” It could involve the risk of debarment, and the potential impact on their stock price for example. Indicted individuals are often no longer employed. If they were executives there may be a legal or contractual right to advancement of their legal fees. They could well be facing jail time. Huneke concluded, “it is not surprising to see them really throwing the kitchen sink at it in furtherance of their defense. Moreover, they are none too pleased with the perceived infiltration of their legal team by the government or the way, probably in their view, the company turned on them.”
The bottom line is for investigative counsel, whether outsourced or in-house, to understand that their entire investigation, notes, memoranda, ideas and investigations may all be turned over to counsel for defendants if individuals are charged. Huneke emphasized that this ruling does not prevent outside or outsourced counsel from effectively investigating potential FCPA claims or negotiating with the government. If there is a settlement reached, it is “based on full information and everyone having the same information. We would rather the government have more, rather than less information, to make sure we are not accused later, of having not provided something to the DOJ that we should have. It does mean it will create additional burdens on the government to track what information it receives. If the government wishes to take a strict view of its disclosure obligations to then individual defendants, and there will be more documents it needs to carefully track and monitor and make sure it is complying with of those obligations.”
Huneke concluded, “if the DOJ is going to reinstitute the full force of the Yates Memo regarding its prosecution of individuals, it may well create additional cost and a longer tail to the consequence of these things. It could also require, going forward, defense counsel to take a very disciplined and well documented approach with the DOJ.” It certainly does not mean you cannot have informal discussions with the DOJ, but it does mean any document response must be “meticulously detailed, documented, cataloged, including the reasons for any redactions or things held back for privilege otherwise.”
You can check out the full podcast with Mike Huneke on All Things Investigations. To find out more about the Hughes Hubbard Anti-Corruption & Internal Investigations practice group click here. All Things Investigationswill post every other Monday on the Compliance Podcast Network.
On this April Fool’s Day for 2022, Tom and Jay are back to look at some of the week’s top compliance and ethics stories in the Slap Seen ‘Round the World edition.
Stories
- The Slap Seen ‘Round the World and Compliance. Tom in FCPA Compliance and Ethics Blog.
- Will CCOs have to certify compliance? Text of Kenneth Polite speech. Tom and Matt in Compliance into the Weeds. Matt in Radical Compliance.
- Coal exec indicted under the FCPA. Harry Cassin in the FCPA Blog.
- Good bribes. Dick Cassin in the FCPA Blog.
- Why controls are key to compliance. Chris Audet in CCI.
- MarshMac UK sub garners Declination with Disgorgement. Dylan Tokar in WSJ Risk & Compliance Journal.
- ZTE whistleblower feared for his life. Ashley Yablon in CCI.
- Whistleblowing keys. Jan Stampers In Risk and Compliance Matters.
- Fine line between compliance and evasion of OFAC sanctions. Mike Volkov in Corruption Crime and Compliance.
- ISSB delivers sustainability guidelines. IFRS Press Release.
Podcasts and More
- What is the intersection of Sports and Ethics? Each year, Jason Meyer holds Ethics Madness, a discussion of this intersection done during March Madness. This year, Jason engaged Tom for Ethics Madness in the podcast format. It was cross-posted on Jason’s site Eight Mindsets, which he co-hosts with Nicole Rose and on Tom’s site, Greetings and Felicitations.
- Tom has a two part series with Aly McDevitt on her recent Ransomware case study, on Greetings and Felicitations, Part 1 and Part 2.
- Why should you attend Compliance Week 2022? Find out on this episode of From the Editor’s Desk. Listeners get a $200 discount to CW 2022 with the code Fox200. More here.
- Tom visits with longtime MS 150 rider Alan Peterson on The Hill Country Podcast. Donate to the fight against MS here.
- Why should compliance lead corporate ESG? Kristy Grant-Hart explains on the ESG Compliance Podcast.
