Tag: Hughes Hubbard

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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

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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

 

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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

 

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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

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All Things Investigations

All Things Investigations: Episode 12 – The Monaco Memo with Laura Perkins

 

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 Laura Perkins 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, including government enforcement actions and compliance counseling. She also advises clients on issues related to the FCPA, the federal securities laws, the False Claims Act, and other federal statutes.

Key areas we explain on this podcast are:

  • How the Monaco Memo instructs prosecutors to evaluate the prosecution of individuals responsible for corporate crime.
  • The Monaco Memo is guiding prosecutors to charge more foreign individuals as opposed to less.
  • Steps a company can take to show timeliness to the DOJ.
  • The Memo underscores the DOJ’s desire for companies to self-report misconduct that they become aware of.
  • Previously, in determining whether a monitorship was appropriate, prosecutors would look at what state your compliance program was in at the time of resolution.
  • The importance of clear communication in understanding the DOJ’s expectations.

Resources

Hughes Hubbard & Reed website 

Laura Perkins on LinkedIn

 

The Hughes Hubbard & Reed website has been updated with the following Anti-Corruption & Internal Investigations advisory:

Cutting Through the Noise: Take‑Aways from the DOJ’s Recent Announcements Regarding Corporate Criminal Enforcement

On September 15, 2022, Deputy Attorney General Lisa Monaco announced a series of policy revisions to the U.S. Department of Justice’s approach to criminal enforcement actions against corporations. At a high level, these new policy revisions show the Department’s desire to take an approach to criminal enforcement that targets the individuals directly responsible for corporate misconduct and encourages companies to assist in preventing misconduct by creating effective compliance programs and cultures. Companies should carefully review these policy changes and identify steps they can take to put themselves in the best position possible should they be subject to a criminal investigation in the future. 

For our discussion about these developments, follow this link to our website.

Practice Co-Chair Laura Perkins will cover this topic in-depth in an All Things Investigations podcast, which will be released on Monday, Sept. 26.

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The ESG Report

Hughes Hubbard & Reed’s New ESG Resource Guide, Part 2

 

Tom Fox welcomes Alexandra Poe, Andrew Fowler, and Bryan Sillaman of Hughes Hubbard & Reed (HHR) to part two of this series of the ESG Report. Hughes Hubbard & Reed released their newest ESG guide with practical guidance about the most common issues in establishing an ESG program. It also gives companies resources to help them comply with the evolving ESG expectations of regulators and investors.

 

 

Key ESG Topics In the Resource Guide

Tom asks Andrew and Alexandra to highlight the key ESG topics seen in the corporate sector that are covered in the resource guide. Alexandra says that before companies tackle any technical compliance concerns they must first understand that “[technical compliance] is a topic that involves governance strategy and mission and culture questions”. This chapter of the resource guide urges corporations to focus on the current trends. 

 

Andrew explains that there are many evolving ESG topics in this new social and political climate, so it may be difficult to choose umbrella topics for the corporate sector. However, he explains that most topics can fall into the category of risk assessment. Stakeholders and investors always need to ensure they’re investing in a safe business, so risk and mitigation planning is always a main issue. 

 

The Regulatory Environment

Tom asks Bryan how he assesses the regulatory landscape. Bryan says that the regulatory environment is constantly and rapidly evolving and it varies from region to region. The EU is more advanced than the US when it comes to regulatory efforts: they have several laws in place to limit greenwashing and identify environmentally friendly activities and sustainable economic activities. However, with the SEC rules in the final stages of being implemented, the US is on pace to become an ESG-friendly landscape. 

 

ESG From An Investor’s Perspective

Tom asks Alexandra to discuss how ESG is viewed by funds and investment advisors. Alexandra explains that ESG is viewed as an expensive commodity within the US. ESG regulations are better implemented by the private sector. The private sector is more likely to urge itself and government-based companies to make better disclosures and examine their practices better. She points out that companies always follow through with the ESG regulatory efforts they implement because it boosts their public image and aligns with their mission statement. 

 

Resources

Alexandra Poe | LinkedIn 

Andrew F. Fowler | LinkedIn

Bryan Sillaman | LinkedIn 

Hughes Hubbard & Reed | How to ESG: A Resource Guide for Establishing an ESG Program for your Company

 

Categories
All Things Investigations

All Things Investigations: Episode 8 – ABC Enforcement in Mexico and Brazil with Diego Duran and Salim Saud

 

Welcome to the Hughes Hubbard Anti-Corruption and Internal Investigations Practice Group’s Podcast, All Things Investigations. In this podcast, host Tom Fox and Diego Duran and Salim Saud of the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group highlight some of the key legal issues involved in white collar and other investigations, both domestically and internationally. 

 

 

Diego Duran is a Hughes Hubbard partner and criminal defense attorney licensed to practice in some parts of the US and Mexico, where he spent several years working for one of its top boutique law firms. Salim Saud is an attorney and partner based in Rio de Janeiro, Brazil, at Saud Advogados, in association with Hughes Hubbard. He specializes in anti-corruption and is also the coordinator of the Anti-Corruption Compliance practice at FGV.

Key areas we discuss on this podcast are:

  • The Mexican administration’s approach to anti-corruption investigation and enforcement.
  • Corporate criminal liability is a fairly recent concept in Mexican law.
  • Mexico’s National Digital Platform is anticipated to be a centralized database designed to host and process information about federal and state officials.
  • Brazil has two systems for anti-corruption enforcement; one is led by the CGU and AGU, and the other is led by the NPF.
  • Assessing the impact of COVID-19 on Brazilian anti-bribery and anti-corruption investigation and enforcement efforts. 
  • Highlights of Brazil’s recent regulations surrounding their anti-corruption law, the Clean Companies Act.

Resources

Hughes Hubbard & Reed website 

Diego Duran on LinkedIn

Salim Saud on LinkedIn