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All Things Investigations

All Things Investigations: Episode 38 – CCO Certification – A Better Approach with Kevin Abikoff

In this episode of All Things Investigation, Tom Fox and guest Kevin Abikoff discuss the Department of Justice’s introduction of a CCO certification in the wake of FCPA violations. Kevin offers his unique perspective on this issue; their conversation also explores broader issues of corporate governance and the role of the Board of Directors.

Kevin Abikoff is a Partner and Deputy Chair at Hughes Hubbard & Reed. He is a recognized authority in corporate governance and compliance. 

You’ll hear Tom and Kevin discuss:

  • Kevin questions the necessity of the CCO certification, suggesting it addresses a problem that doesn’t exist, given the absence of complaints from the Department of Justice about dishonesty during monitorships.
  • A more practical approach, Kevin posits, is a certification 12 to 24 months after a monitorship ends to empower CCOs during periods of vulnerability truly.
  • Measuring compliance effectiveness is subjective and may be void of vagueness in a legal context.
  • In the broader realm of corporate governance, the board has a pivotal role in overseeing compliance. Parallels to the Caremark duty and Delaware law are drawn.
  • Kevin raises concerns about the burden on CCOs to assess program effectiveness retrospectively, especially considering the dynamic nature of compliance programs over time.
  • Boards should take responsibility for compliance certifications and should sign off on these certifications, mirroring similar practices in financial reporting.
  • Innovation within compliance may be stymied if CCOs fear that enhancing a program might be used against them in the future, Kevin points out.

KEY QUOTES:

“I’ve just never heard, especially from the context of Chief Compliance Officer, that the DOJ feels like they’re being lied to. If that’s not the problem they’re trying to solve, I think the solution they have paved is, again, a solution in search of a problem that doesn’t exist…” – Kevin Abikoff

“If you’re going to have a certification and you want to empower the chief compliance officer, have the certification twelve months, 24 months after the conclusion of the monitorship and have the CCO certify that they continue to believe that the policies, procedures, things that have been put in place, continue to be in place.” – Kevin Abikoff

“Now what you fail to investigate can kill you.” – Kevin Abikoff

Resources:

Hughes Hubbard & Reed website 

Kevin Abikoff on LinkedIn

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All Things Investigations

All Things Investigations: The FCPA Unit in the DOJ with Laura Perkins

In this episode of All Things Investigations, Tom Fox and Laura Perkins delve into the workings of the FCPA unit within the fraud section of the Department of Justice. This unit, pivotal in investigating and prosecuting Foreign Corrupt Practices Act violations, operates within a robust hierarchy and collaborates extensively with other agencies.

Laura Perkins is a Hughes Hubbard partner whose practice focuses on representing clients in Foreign Corrupt Practices Act and white collar criminal investigations. She also advises clients on issues related to the FCPA, the federal securities laws, the False Claims Act, and other federal statutes. 

 

You’ll hear Tom and Laura discuss:

  • There was a recent transition in leadership within the DOJ’s FCPA unit, with an acting head taking the reins. Such changes can potentially shift the direction or focus of the unit.
  • The FCPA unit maintains a collaborative approach, liaising closely with other agencies such as the IRS, FBI, and the Department of State, ensuring a holistic investigative process.
  • Despite being two distinct units, the DOJ’s FCPA and the SEC’s FCPA work closely during parallel investigations. However, certain limitations arise from grand jury issues, preventing complete sharing.
  • Operating within the fraud section, this unit plays an instrumental role in evaluating corporate compliance programs, selecting compliance monitors, and contributing to policy developments and department-wide initiatives.
  • The Corporate Enforcement, Compliance, and Policy Unit has the task of handling FOIA requests, underscoring its role in promoting transparency and information access.
  • The relationship between the chief of the FCPA unit and the head of the fraud section is important as their interactions can potentially influence the direction and outcome of cases.
  • The fraud section provides weekly case summaries to the Deputy Assistant Attorney General’s office. This demonstrates the department’s diligent and ongoing monitoring and reporting system.
  • The FCPA unit doesn’t operate in isolation; it partakes in international collaborations on bribery issues, highlighting its commitment to global anti-corruption efforts.

 

KEY QUOTES

“[In] the FCPA unit, prosecutors and supervisors handle investigations and cases involving Foreign Corrupt Practices Act or potential Foreign Corrupt Practices Act violations.” – Laura Perkins

 

“[The DOJ and SEC have] a very close relationship, and often cases are worked in parallel, not necessarily jointly, because there are potential discovery issues that can be created if it’s a joint investigation.” – Laura Perkins

 

“The [Corporate Enforcement, Compliance and Policy Unit] has a major role in assisting prosecutors in evaluating corporate compliance programs as well as overseeing any compliance monitors that are put in place.” – Laura Perkins

 

Resources

Hughes Hubbard & Reed website 

Laura Perkins on LinkedIn

Categories
All Things Investigations

All Things Investigations: Episode 32 – Update on Trump Indictment, Target Letter and Michigan Electors with Kenyen Brown and Kevin Carroll

Tom Fox and guests Kenyen Brown and Kevin Carroll take a deep dive into the legal drama surrounding President Trump. On this week’s episode of All Things Investigations their seasoned attorneys walk us through three major legal events that unfolded in a momentous week. They uncover the delicate balance of political and legal intrigue, explain court strategies, and reveal the ins and outs of the judicial process.

 

Kevin Carroll and Kenyen Brown are partners at Hughes Hubbard & Reed. Kevin served as a senior counsel to the House Homeland Security Committee. Kenyen is a former United State Attorney. 

You’ll hear Tom, Kenyen and Kevin discuss:

  • The surprising lack of preparation on President Trump’s defense team’s part. They were surprised by the lack of a structured legal argument and the pleading for a trial after the election.
  • Is there any merit to the defense’s claim that the amount of information to be reviewed necessitates a delay? Kenyen and Kevin agree that the defense might be asking for too long of a delay; however, they do not rule out a timeline extension due to the volume of documents involved.
  • Trump’s defense does not have a large legal team to sift through the discovery material.
  • They examine the defense strategy, in particular the call for the trial not to be held before the election. Such a privilege is not usually granted to typical defendants.
  • Kevin voices his concerns over the defense’s public statements, questioning the judge’s hesitance in issuing gag orders. Kenyen speculates that the choice of the federal district for this case could be strategic on the part of the Justice Department, aiming for a more credible verdict.
  • They discuss Trump’s announcement about receiving a target letter from Jack Smith, and its implications. They believe that it indicates that the Special Counsel believes there is already probable cause to indict Trump.
  • Tom wonders if Smith’s motivation was to pre-empt any indictment that might have been made by the state of Georgia.
  • Kevin speculates that the Justice Department might have been embarrassed by the January 6 Committee progressing far ahead of their investigation. He posits that it would be even more mortifying if a smaller District Attorney’s office managed to build a significant conspiracy and racketeering case against the President while the DOJ was lagging behind.
  • Kenyen emphasizes that justice should be their main focus and he would hope that the pace of Smith’s actions is determined by the facts and evidence he has, rather than being influenced by a state prosecutor’s progress.
  • Would the District of Columbia be an appropriate venue for a case involving the January 6 insurrection? Kevin believes so since most of the activity relating to January 6, including the preparation and the event itself, happened in DC.
  • Tom asks Kenyen and Kevin for their views on this matter of the recent announcement from the Attorney General of Michigan, who charged a series of persons claiming to be electors from Michigan but who were in fact fraudulent. 
  • Kevin finds it interesting that Federal Prosecutor Smith is also examining the fake elector scheme. He labels the indictment as apt and defines the false claims of electoral victory as fraudulent.
  • Kenyen remarks on the difficulties of prosecuting election fraud cases due to allegations of partisanship. He underlines the necessity to protect the integrity of the election system. 
  • Kevin discusses an incident in Michigan, where meetings were apparently recorded in which fake electors were selected.

 

KEY QUOTES

“I would hope that federal authorities are not motivated by what might be taking place in a parallel state jurisdiction. In other words, your master in these circumstances is supposed to be justice…” – Kenyen Brown

 

“Having investigated a few instances of election fraud cases in Alabama that ended up not being accurate or true, it’s almost a no win for the prosecutor because there are going to be allegations of partisanship regardless of the outcome of the merit of your case. Nonetheless, you do it to protect the integrity of the election system.” – Kenyen Brown

 

“The only thing worse than getting a target letter from the Justice Department is when everybody else who was involved in the crime, except you, didn’t get a target letter, they suggest that everybody’s cooperating against you.” – Kevin Carroll

 

“It’s super interesting because we all know that the federal Prosecutor Smith is also looking at the fake elector scheme because he specifically subpoenaed some individuals who were electors or state election officials in the different states that the results were in question legitimately or illegitimately. It’s a very apt indictment. It’s a fraud.” – Kevin Carroll

 

Resources

Hughes Hubbard & Reed website

Kevin Carroll on LinkedIn

Kenyen Brown on LinkedIn

Categories
All Things Investigations

All Things Investigations: Episode 28 – New French Anti-Corruption Investigative Guidance with Anne Gaustad and Bryan Sillaman

 

The new French Investigative Guidance, jointly introduced by the AFA (Agence Française Anticorruption) and PNF (Parquet National Financier), discusses the appropriate methodology for carrying out internal investigations, specifically concerning corruption-related instances. In this episode of All Things Investigations, law experts Anne Gaustad and Bryan Sillaman join hosts Tom Fox and Mike DeBernardis to provide a detailed overview of the guide, contrasting the similarities and differences with US guidelines, and the implications it holds for US companies.

Anne Gaustad is an accomplished French lawyer and an authority in white-collar crime and compliance matters. With over 15 years of professional experience, Anne’s practice focuses on cross-border investigations and compliance matters, notably regarding corruption, fraud, and money laundering. 

 

Bryan Sillaman is a seasoned American lawyer based in Paris. As a partner at Hughes Hubbard & Reed, Bryan has worked extensively on matters related to the US Foreign Corrupt Practices Act (FCPA), French anti-corruption law (Sapin II), and other international anti-corruption laws. 

 

You’ll hear Tom, Mike, Anne and Bryan discuss:

  • The French Investigative Guidance is not covered by secret professional or French legal privilege, making its contents publicly accessible.
  • The new guide was jointly issued by the AFA and PNF agencies to provide comprehensive guidance on conducting internal investigations.
  • While there are similarities to US guidelines, the French guide incorporates the civil law tradition, stringent labor requirements, data privacy considerations, and whistleblower regimes.
  • The French legal privilege holds an absolute character, and it’s a criminal violation for French lawyers to breach it.
  • The new guide underscores the importance of transparency in data collection during internal investigations.
  • French blocking statutes and GDPR regulations may pose potential challenges to US-based companies.
  • The French guide, while non-binding, provides practitioners with comprehensive instructions for conducting internal investigations.
  • The guide puts a strong emphasis on understanding the nuances of French labor law.
  • The guide also encourages informing interviewees of the voluntary nature of their participation in investigations.

 

KEY QUOTES:

“The French Investigative Guidance represents a significant shift in the internal investigations landscape.” – Anne Gaustad

 

“It’s crucial for American lawyers to grasp the nuances of French labor law and privilege issues.” – Bryan Sillaman

 

“Transparency in data collection during internal investigations is key to avoiding legal repercussions.” – Anne Gaustad

 

Resources:

Hughes Hubbard & Reed website

Anne Gaustad on LinkedIn

Bryan Sillaman on LinkedIn

Guide (in original French)

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FCPA Compliance Report

HHR Webinar on Strategic Competition Between US and China

Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. Today, we have a special edition of the FCPA Compliance Report. On Wednesday, February 22, 2023, Hughes Hubbard & Reed and BGR Group co-hosted a virtual panel discussion on the U.S. House of Representative’s recent resolution to establish a Select Committee on Strategic Competition Between the United States and China as well as major changes in U.S.-China trade policy and its impact on U.S. and Chinese businesses with operations in both jurisdictions.

The panel was moderated by Hughes Hubbard partner and head of the Sanctions, Export Controls & Anti-Money Laundering practice group, Ryan Fayhee, who is joined by fellow international trade partner and chair of Hughes Hubbard’s China Practice, Roy Liu, as well as former staff director of the Senate Foreign Relations Committee, Lester Munson, co-head of the International Practice at BGR Group. This is a recording of their presentation.

Key Highlights

U.S. Export Control Regulations and Restrictions [00:04:51]

The Effectiveness of the China Select Committee in the House of Representatives. [00:09:19]

The Role of Bipartisanship in Overlapping Authorities [00:12:51]

Impact of U.S. Computer Chip Industry Subsidies [00:16:37]

The Presidential Authority and the US-Taiwan Relationship [00:20:19]

The Potential of Retaliatory Measures in China [00:23:42]

Navigating Chinese Investment in the US Amid Changing Protocols[00:28:14]

The Impact of Commerce on Bilateral Relationships [00:32:13]

 Impact of China on Western Companies and Semiconductor Industry [00:40:01]

Exploring Business Opportunities in Changing China-US Relations [00:44:11]

US-China Relations and Their Impact on Global Politics [00:48:02]

The Impact of Congressional Hearings on Chinese Companies and Businesses Partnering with China [00:51:53]

Reforming the NDAA Process in 2024[00:56:00]

Original Source:

HHR House Committee on Strategic Competition.mov from Hughes Hubbard & Reed LLP on Vimeo.