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All Things Investigations

All Things Investigations: Compliance Lessons from Gunvor and Trafigura Enforcement Actions

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. In this podcast, I joined by Mike DeBernardis to mine compliance lessons from the recently announced Gunvor and Trafigura FCPA enforcement actions.

Mike DeBernardis is a seasoned professional with a comprehensive understanding of FCPA enforcement actions and compliance matters, a perspective deeply informed by his numerous client advisory roles on self-disclosure decisions related to FCPA violations and his regular participation in industry discussions.

DeBernardis believes that FCPA enforcement actions are increasingly considering past misconduct as a determinant in assigning penalties and discounts. He underscores the necessity for companies to be proactive and innovative in their remediation efforts rather than simply adhering to minimal compliance standards. He also notes a decrease in the reliance on external monitors in FCPA resolutions, potentially due to businesses taking more initiative in improving their compliance programs and directly reporting to the DOJ.

In DeBernardis’ view, the Department of Justice’s approach to FCPA enforcement is dynamic and adaptive, with companies helping shape best practices through their communication with outside counsel and the DOJ itself.

Key Highlights:

  • Impact of Self-Disclosure on FCPA Penalties
  • DOJ’s Quantifiable Self-Disclosure Benefits in FCPA
  • Cross-Regional Executives in Trafigura Bribery Scheme
  • Innovative Risk Mitigation Strategies in FCPA
  • Rewarding Compliance Efforts in Energy Trading

Resources:

Hughes Hubbard & Reed website

Mike DeBernardis

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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

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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

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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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All Things Investigations

All Things Investigations: Episode 26 – The ITC – The Most Important Court You’ve Never Heard Of with Andrew Kopsidas

Did you know about a powerful court that handles investigations of products imported into the US? On this episode of All Things Investigations, host Tom Fox sits down with Andrew Kopsidas to discuss the International Trade Commission (ITC). Andrew walks Tom through the ins and outs of the ITC, including its broad definition of unfair trade practices, the plaintiff and defendant roles, and the power of the agency to bar products from entering the US. He also shares insights on the speed of ITC cases, the role of administrative law judges, and the importance of having good ITC counsel.

Andrew Kopsidas is a litigation and strategic consulting expert with over 20 years of experience in intellectual property (IP) matters. He graduated from George Washington University Law School in 1999, after earning a degree in aerospace engineering from the University of Maryland. Kopsidas is a partner at Hughes Hubbard & Reed, where he advises clients on litigation and strategic counseling matters related to IP.

 

You’ll hear Tom and Andrew discuss these ideas:

  • The ITC is a federal agency that investigates unfair trade practices related to international trade, with the power to bar products from entering the US.
  • Any company that has a domestic industry in the US and is facing imports of products made in a foreign country using unfair trade practices can file a complaint with the ITC.
  • Unfair trade practices can include patent and trademark infringement, trade secret misappropriation, false advertising, and more.
  • ITC cases move quickly, with only 30 days to prepare for discovery and respond to requests, making it crucial for in-house counsel to act fast and get management buy-in.
  • Administrative law judges are the fact-finders in ITC cases, and their credibility determinations can be influenced by the reputation of the lawyers involved.
  • ITC lawyers must have knowledge of the nuances of ITC practice and be able to work with the Office of Unfair Import Investigations and persuade them that their side of the case is right.
  • Andrew emphasizes early assessment of cases. He recommends organizing a scrub session with the outside litigation team and employees to go through the merits of the case. He points out that it’s important to consider the client’s objectives to find the best solution for their business.
  • The ITC litigation process is strictly one way, with no counterclaims, and the respondent is always on the receiving end.
  • The government attorneys at the ITC are neutral and trained to represent the public interest. They participate in discovery and give their opinion right before the trial.
  • Going on the offensive is an essential strategy for a defendant in an ITC case. For example, a defendant can file their ITC action as a counteraction, file district court actions, or refuse to stay the district court case.
  • Trials in the ITC can be a lot like a district court, but without a jury. The rules of evidence are not as stringent as in district court.
  • Companies should take ITC cases seriously and avoid hiring inexperienced counsel as there is a lot of nuance to ITC practice.

 

KEY QUOTES

“I’ve seen a lot of good lawyers stumble in the ITC because they just weren’t familiar with the nuance of practice.” – Andrew Kopsidas

 

“If a company isn’t taking things seriously, the case can be lost before it’s practically even begun.” – Andrew Kopsidas

 

“The first question I like to ask clients is, What’s your business objective here? We as litigators a lot of times want to think that what we do is the be all and end all. Really we’re just a tool for these companies that have broader business objectives and we need to keep that in perspective.” – Andrew Kopsidas

 

Resources:

Hughes Hubbard & Reed website

Andrew Kopsidas on LinkedIn

ITC Spotlight

You’ve Been Sued – Part 1

You’ve Been Sued – Part 2

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All Things Investigations

All Things Investigations: Episode 22 – Mike Huneke and Laura Perkins on Changes to Corporate Enforcement Policy

Welcome to the Hughes Hubbard Anticorruption and Internal investigation Practice Group’s podcast, where host Tom Fox and Hughes Hubbard Anticorruption and Internal Investigation Practices Group members delve into the legal issues surrounding white-collar and other investigations, both domestically and internationally.  Laura Perkins and Mike Huneke join Tom on this episode to discuss the changes to the Department of Justice’s Corporate Enforcement Policy.

Laura Perkins is the Co-Chair of the Anti-Corruption & Internal Investigations practice group and Co-Managing Partner of the Washington, DC, office at Hughes Hubbard & Reed. Prior to joining the firm, Laura worked for nearly ten years at the Criminal Division of the U.S. Department of Justice, where she served as Assistant Chief of the FCPA Unit and oversaw some of the largest individual and corporate FCPA cases in the U.S. Laura now advises corporations, boards of directors, and senior executives on high-stakes government and internal investigations, crisis management, white-collar criminal defense, and cross-border compliance counseling. She has particular expertise in FCPA/anti-corruption, healthcare fraud, financial fraud, and money laundering cases.

 

Mike Huneke is a Hughes Hubbard & Reed partner specializing in Anti-Corruption & Internal Investigations. His work involves advising clients on navigating complex international anti-corruption investigations, implementing compliance risk assessments and program enhancements, and conducting due diligence on third parties. He has received several awards, including Lexology’s Client Choice Award for Investigations-USA in 2022 and recognition from Global Investigations Review for his work representing Airbus in resolving bribery and corruption allegations.

 

Key ideas you’ll hear in this episode:

  • The Department of Justice’s corporate enforcement policy has been expanded to a broader range of white-collar crimes. Prosecutors can use it to evaluate possible criminal violations against a company when investigating potential criminal violations. It’s also an unofficial guide for companies to position themselves to avoid prosecution or mitigate consequences.
  • The new policy offers a 75% discount for self-reporting, a significant change, and an additional incentive for companies to self-report.
  • The discounts offered can stack up quickly, and the range of penalties for non-compliance can be large so the discount can make a marked difference in the amount of criminal penalty under the sentencing guidelines.
  • There may still be apprehension about self-reporting, as there is uncertainty about the actual penalties and the reputational harm that can result from a public criminal resolution.
  • The definition of extraordinary cooperation is subjective and largely depends on the speed and fulsomeness of the material going from the company to the department.
  • Proactive cooperation, being efficient in conducting an internal investigation, and being the one to come to the department with a good rhythm and cadence are all ways to stay on the good side of extraordinary cooperation.
  • The decision to self-disclose still depends on whether the company thinks the issue will come out or not and the pros and cons of self-disclosure need to be weighed in a case-specific analysis.
  • The more guidance that comes out in speeches, policy memos, or resolutions and declinations, the better companies will be able to evaluate the value of self-disclosure.

 

KEY QUOTES:

“One of the major [changes to the Corporate Enforcement Policy is] increasing the maximum potential fine reduction a company can get for self-reporting. It’s a further effort by the Department to incentivize self-reporting.” – Laura Perkins

 

“I think [the updated Corporate Enforcement Policy] does provide a clear incentive for companies to continually maintain a good compliance program and controls that can detect these violations.” – Laura Perkins

 

“I think the more that the government can show examples of the application of this increased benefit for exceptionally cooperating recidivists and ABB is a great example of that.” – Mike Huneke

 

“[The Corporate Enforcement Policy is] also the unofficial guide for companies and how they can position themselves best in the event of a problem to avoid prosecution either or to mitigate the consequences.” – Mike Huneke

 

Resources:

Hughes Hubbard & Reed website

Laura Perkins on LinkedIn

Mike Huneke on LinkedIn

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All Things Investigations

All Things Investigations: Episode 20 – FTX – What’s the Current Status with Amina Hassan

Welcome to the Hughes Hubbard Anticorruption and Internal investigation Practice Group’s podcast, where host Tom Fox and members of the Hughes Hubbard Anticorruption and Internal Investigation Practices Group delve into the legal issues surrounding white-collar and other investigations, both domestically and internationally. In this episode, Tom sits down with Amina Hassan, a litigator in the Hughes Hubbard litigation department. Tune in as they discuss the FTX scandal, one of the most unbelievable stories in recent fraud history.

Amina has been with the firm since graduating law school and has a wealth of experience in the crypto world, handling cross-action security litigation and helping clients navigate the uncertain regulatory and enforcement landscape in the US.

Key ideas you’ll hear in this episode:

  • FTX was the second largest crypto exchange. It was a sprawling group of over 100 entities headquartered in the Bahamas. It offered a crypto derivatives exchange for trading futures on a margin, but not available to US customers.
  • Sam Bankman-Fried was the founder of FTX. Alameda Research was a sister company and one of FTX’s biggest customers, but also borrowers. Money seemed to flow between and through all of the entities in an unusual way which led to the failure and lack of control.
  • The collapse of FTX has brought scrutiny on the SEC’s role in regulating crypto. However, the SEC’s position is that they already have a regulatory structure in place and will continue to enforce it.
  • The SEC has been the most active regulatory agency for crypto enforcement, but other agencies, such as the CFTC, FTC, and CFPB, will likely become more active in enforcing regulations in the crypto space.
  • Sophisticated investors such as pension funds, hedge funds, and large wealth management funds invested nearly a billion dollars in FTX despite having fewer financial statements than the average individual.
  • The FTX scandal is a wake-up call for institutional investors to improve their due diligence in the crypto space. This should include understanding the technology and asking the right questions, such as how wallets are kept and stored.
  • The aftermath of the collapse of FTX may mean challenges for its competitors, such as Coinbase or even Bitcoin.
  • The SEC has taken an enforcement-centric approach towards crypto and has not indicated any plans for rulemaking in 2023.
  • There have been calls for more clarity in existing regulations for the crypto space and for possible specialized agencies like FINRA to be created for the crypto industry.

KEY QUOTE:

“One of the key takeaways from the FTX scandal is really the complete failure and lack of controls.” ~ Amina Hassan

Resources

Hughes Hubbard & Reed website

Amina Hassan on LinkedIn

Categories
All Things Investigations

All Things Investigations: Episode 17 – Kevin Abikoff and Laura Perkins on the FCPA & Anti-Bribery Fall 2022 Alert

 

Welcome to the Hughes Hubbard Anti-Corruption and Internal Investigations Practice Group’s Podcast, All Things Investigations. In this podcast, host Tom Fox and guests Laura Perkins and Kevin Abikoff of the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group highlight some of the key legal issues in white-collar investigations, locally and internationally.

 

 

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. 

Kevin Abikoff is partner, deputy chair at Hughes Hubbard, and Chairman of the firm’s Anti-Corruption & Internal Investigations Practice Group. He specializes in securities and white-collar criminal litigation, enforcement, regulation, and counseling, emphasizing the representation of entities in anti-corruption (including FCPA) matters.

Key ideas we discuss in this podcast:

  • The DOJ’s recent discussions about requiring Chief Compliance Officer (CCO) certifications.
  • The Monaco Memo is a guidance document from the DOJ that sets expectations for prosecutors when investigating and prosecuting companies. 
  • How the Monaco Memo is taking a different approach to monitoring.
  • The Monaco Memo gives companies flexibility in how they approach compliance, demonstrating they take it seriously. 
  • The DOJ can now successfully prosecute internal controls in a criminal context.
  • Assessing the past year in FCPA.

 

Resources

Hughes Hubbard & Reed website 

FCPA & Bribery 2022 Fall Alert

Laura Perkins on LinkedIn

Kevin Abikoff on LinkedIn

 

Categories
All Things Investigations

All Things Investigations: Episode 13 – Tyler Grove on New CFIUS Executive Order

Welcome to the Hughes Hubbard Anti-Corruption and Internal Investigations Practice Group’s Podcast, All Things Investigations. In this podcast, host Tom Fox and returning guest Tyler Grove of the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group, highlight some of the key legal issues in white-collar investigations, locally and internationally.

 

 

Tyler Grove has worked at Hughes Hubbard for over 10 years, starting as a paralegal and then working his way up to full-time associate before taking the position of counsel. Tyler’s specialties include sanctions and export controls in addition to anti-money laundering and foreign investment issues. His practice has three main areas: compliance counseling, enforcement and investigations, and corporate diligence and filings.

Key areas we explore on this podcast are:

  • The genesis of Executive Order 14083 relating to CFIUS, and what it entails.
  • It’s become a standard follow-up question when making CFIUS filings to ask about a US business’ cybersecurity policies.
  • What is excepted foreign state? 
  • The Biden administration has conducted a holistic approach to business issues that may not have been considered national security issues in the past. 
  • CFIUS has been a flexible tool for the Biden administration to apply foreign policy.
  • How companies should be prepared to respond when asked to provide information or assistance in a CFIUS review.

Resources

Hughes Hubbard & Reed website 

Tyler Grove on LinkedIn

 

Categories
FCPA Compliance Report

Mike Huneke on The General Counsel Role in CCO Certification

In this episode, I visit Mike Huneke, a partner at Hughes Hubbard. We look at the role of the GC in the CCO certification requirement as first announced by Assistant Attorney General Kenneth Polite and confirmed by Deputy Attorney General Lisa Monaco.

Key areas we discuss on this podcast are:

  • What is the new CCO certification policy?
  • Why did the DOJ create the policy?
  • How has the DOJ’s thinking around recidivists evolved?
  • Reasonableness is not a factual basis.
  • Companies with full transparency are unlikely to have conflicts due to the recent changes in CCO certification.
  • What is the role of the monitor going forward?

Resources

Mike Huneke on Hughes Hubbard

What is the General Counsel’s role in CEO and CCO compliance certifications? On the FCPA Blog