Global Trends in Anti-Corruption Enforcement Webinar · conducts domestic and international internal investigations for corporate clients ... Joan routinely advises senior management

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Global Trends in Anti-Corruption Enforcement Webinar

September 30, 2020

2:00-2:05 pm Introduction 2:05-2:15 pm Update on Recent Enforcement 2:15-2:25 pm International Considerations 2:25-2:35 pm Impact of COVID-19 2:35-2:45 pm Recent Guidance Documents

2:45-2:55 pm Potential Legislative Actions

2:55-3:00 pm What’s Next – Q&A

Global Trends in Anti-Corruption Enforcement 1

Contact Information

1919 M Street, N.W.

Washington, D.C. 20036-3537

Direct: 202.263.4115

Fax: 202.331.8330

20 North Clark Street, Suite 800

Chicago, Illinois 60602-4101

Direct: 312.998.4240

Fax: 312.998.4245

Education

Loyola University Chicago School of Law, J.D.

Creighton University, B.A.

Joan Meyer

Partner

[email protected]

White-Collar Criminal Practice, Internal Investigations & Government EnforcementGovernment Contracts

International Trade

Overview

Joan has more than 25 years’ experience handling complex criminal and civil litigation, primarily domestic and international white-collar defense for companies involving anti-corruption, financial frauds, government contracting, false claims, securities and commodities violations, and trade compliance matters. She has tried scores of cases at the state and federal levels and handled more than 40 appeals in state and federal appeals courts. Joan also

conducts domestic and international internal investigations for corporate clients to determine if legal and regulatory violations were committed and defends companies and individuals in negotiation and litigation with U.S. government agencies.

With her extensive experience in global corporate compliance, Joan routinely advises senior management and boards of directors on best practices for compliance with U.S. and international legal requirements and regulations and the consequences of law enforcement inquiries, including the development of a defense strategy, government disclosures, disciplinary actions, and the enhancement of compliance policies and procedures and internal controls. She has handled matters around the world for companies in the manufacturing, life sciences, mining and extraction, financial services, transportation and logistics sectors and assisted them in conducting global risk assessments and audits, developing and implementing compliance programs, creating remediation plans

and developing emergency/crisis management strategies. Joan has been recognized multiple times by the National Association of Corporate Directors as one of the most influential professionals in corporate governance.

Before joining Thompson Hine, Joan was a partner at Baker McKenzie for more than ten years, where she served as practice chair of the Compliance & Investigations group and as the Washington, D.C. office litigation chair. Before entering private practice, she held several high-profile government positions, including serving as senior counsel to the Deputy Attorney General at the U.S. Department of Justice, where she advised on complex criminal litigation, including corporate frauds such as falsely inflating revenue, insider trading and accounting schemes, and managed the operation of the president’s Corporate Fraud Task Force. She also developed the Department’s corporate charging and monitorship policies. Joan also held a variety of positions in the U.S.


Attorney’s Office in the Western District of Michigan, including First Assistant and Chief of the Criminal Division, and she was a criminal prosecutor in Chicago at the Cook County State’s Attorney’s Office. Additionally, she worked as a senior trial attorney in the Division of Enforcement at the U.S. Commodity Futures Trading Commission where she prosecuted investment frauds involving the commodity futures markets.

Experience

Examples of Joan’s experience include:

Representing the special committee of a Fortune 100 manufacturing company’s board of directors in connection with a six-year global investigation involving the company’s agents and distributors, which was resolved with a guilty plea by a subsidiary.

Representing a technology company involved in processing mortgage-related documentation for major financial institutions during the financial crisis in connection with a highly publicized investigation by federal and state authorities.

Obtaining a favorable settlement with the U.S. government for one of the world’s largest snack food companies following a multi-year overseas investigation of one of the company’s subsidiaries.

Serving as co-lead counsel for a publicly traded Latin American petrochemical company in an investigation by two federal agencies of FCPA violations in Brazil.

Securing a favorable settlement with the SEC for a major beverage company

following an investigation of a foreign subsidiary’s distribution channel activities.

Achieving a settlement with multiple law enforcement agencies for a Latin American aerospace manufacturer in a multijurisdictional investigation of is operations in Latin America, Asia and the Middle East. The matter was selected and cited as a landmark case in U.S. and international publications.

Obtaining a declination of charges by the U.S. government for a professional infrastructure and environmental services company in connection with allegations of corruption involving a recently acquired foreign subsidiary.

Securing a declination of charges by the U.S. government for a software company in connection with activities within the company’s foreign distribution chain.

Representing a former executive of a major financial institution in civil litigation before a federal banking agency involving allegations of unsafe and unsound business practices.

Publications

"DOJ’s False Claims Act Recoveries in Fiscal Years 2020 and 2019," Thompson Hine Government Contracts Update, September 2020

“DOJ’s Fraud Section Issues Revised Corporate Compliance Guidelines,” Thompson Hine White-Collar Criminal Practice Update, June 2020


“SEC’s Enforcement Focus on Pandemic-Related Misconduct,” Thompson Hine COVID-19 Update, May 2020

“Supply Chain Disruptions Bring Compliance Risks to the Forefront,” Thompson Hine COVID-19 Update, April 2020

“U.S. Alleges Huawei Involved in Long-Running Scheme to Steal Trade Secrets,” Thompson Hine White-Collar Update, February 2020

“U.S. Probes Scientists and Academics with Overseas Ties, Targets Trade

Secret Transfers,” Thompson Hine White-Collar Update, January 2020

Co-author, "Justice Department Emphasizes Antitrust Enforcement Through Creation of Multi-Agency and Bid-Rigging Strike Force," Thompson Hine Antitrust & Government Contracts Update, November 2019

Co-author, “Corporate Settlement Tools, Deferred Prosecution Agreements, Non-Prosecution Agreements and Cooperation Agreements,” Bloomberg Law, 2018

Author, Mexico chapter of From Baksheesh to Bribery: Understanding the Global Fight Against Corruption and Graft, 2019

Co-author, “Decreased Enforcement Expected From SEC Regarding Conflict

Minerals Regulations – For Now,” NACD BoardTalk blog, 2017

Co-author, “Cross-Border Information Flows: Existing and Developing Challenges,” NACD BoardTalk blog, 2016

“One Year After Yates Memo: The DOJ’s Yates-Lite Approach,” Law360, 2016

“The Evolving Calculus of Corporate Voluntary Disclosure in FCPA Cases,” The Review of Securities and Commodities Regulation, 2016

Presentations

Panelist, “Setting the Stage: Government Investigation in High-Tech Industries,” Bloomberg Law In-House Forum West, 2019

Panelist, Sanctions, Export Control and National Security Conference, Global Investigations Review, 2019

Panelist, “Anti-Corruption Issues When Doing Business in Latin America,” The

Foreign Corrupt Practices Act and International Anti-Corruption Developments, PLI, 2019

Speaker, “Enforcement Developments in Latin America,” PLI, 2018

Panelist, Developments in Brazil Conference, Latin America American Conference Institute, 2017

Panelist, Transparency International Corporate Forum, 2017

Speaker, “The SEC Whistleblower,” Corporate Counsel Webcast, 2017

Speaker, “The Role of the General Counsel in the Remediation Process,” Corporate Counsel Seminar, 2017

Speaker, Ethisphere Roundtable, 2017

Speaker, NACD Roundtable, 2016

Speaker, Compliance Seminar, District of Columbia Bar, 2016

Panelist, American Conference Institute FCPA Panel, 2016

Presenter, SEC Whistleblower Program, ABA, 2016

Speaker, National Association of Real Estate Investment Managers Political Donations/Lobbying Compliance Seminar, 2016


Speaker, “Voluntary Disclosures in Corporate Investigations,” ABA Panel, 2016

Speaker, Leading Minds of Governance Forum, NACD, 2016

Distinctions

Selected for inclusion in The Best Lawyers in America© 2021 in the field of Criminal Defence: White-Collar Crime

Top 5 Global Investigations Practice (as D.C. chair of Baker McKenzie’s Compliance & Investigations practice), Global Investigations Review (2016 & 2017)

100 Most Influential People in Corporate Governance and the Boardroom, National Association of Corporate Directors (2016 & 2017)

Elite FCPA Practice (as D.C. chair of Baker McKenzie’s Compliance & Investigations practice), Global Investigations Review (2016)

Deal of the Year, Latin Lawyer (2016)

Department of Justice Director’s Award

National Award from the Center for Missing and Exploited Children

Professional & Civic

Professional Associations

American Bar Association

Chicago Bar Association

Admissions

District of Columbia

Illinois

Michigan

U.S. District Court for the Northern District of Illinois

U.S. District Court for the District of Columbia

U.S. Court of Appeals for the Seventh Circuit

U.S. Court of Appeals for the Eleventh Circuit


Contact Information

1919 M Street, N.W.

Washington, D.C. 20036-3537

Direct: 202.263.4136

Fax: 202.331.8330

335 Madison Avenue

12th Floor

New York, New York 10017-4611

Direct: 212.344.5680

Fax: 212.344.6101

Education

Fordham University School of Law, J.D., 2007, staff member, Fordham International Law Journal; member, Immigrant Rights and Access to Justice Clinic

Fordham Univ Graduate School of Business, M.B.A., 2007

University of Michigan, B.A., 1999

Samir D. Varma

PartnerWashington, D.C. Chair, Diversity, Equity & Inclusion InitiativeWashington, D.C. Chair, Pro Bono Committee

[email protected]

International TradeWhite-Collar Criminal Practice, Internal Investigations & Government

EnforcementCorporate Transactions & Securities

Government Contracts

Overview

Samir is a partner in the International Trade and White-Collar Criminal Practice, Internal Investigations & Government Enforcement practice groups. He advises multinational corporations on export controls, economic sanctions and customs, and counsels individuals and corporations on the Foreign Corrupt Practices Act (FCPA) and other anti-corruption laws. He represents clients in enforcement actions before U.S. regulatory agencies and conducts corporate internal investigations. Samir participates in many firmwide activities, including the pro bono program, and serves as the Washington D.C. chair of the firm's Diversity, Equity & Inclusion Initiative. He was a co-recipient of Thompson Hine's 2013 Diversity Champion Award for his work developing and launching the Diversity Externship Program, which provides law students in Washington, D.C. with

rewarding educational opportunities and real-life work experience on pro bono matters.

While in law school, Samir served as a judicial extern for Judge Douglas Eaton of the U. S. District Court for the Southern District of New York. Also, he interned for the U.S. Attorney's Office for the District of Nevada.

Experience

FCPA and Other Anti-Corruption Regulations

Advising companies on complying with FCPA and other anti-corruption laws, including the UK Bribery Act.

Representing corporate executives and companies in FCPA investigations by the DOJ and SEC.

Conducting FCPA/Anti-Corruption internal investigations and audits

Drafting and implementing compliance programs, and conducting Anti-Corruption training.


Drafting FCPA/anti-bribery contract provisions in distributor and agent agreements.

Performing due diligence on FCPA/anti-corruption risks in corporate transactions.

Export Controls and Economic Sanctions

Advising multinational corporations on a wide range of international regulatory issues related to BIS, DDTC and OFAC, including enforcement actions.

Advising multinational corporations on compliance issues related to U.S. trade sanctions and export controls, including licensing and classification issues.

Drafting and implementing export compliance programs and procedures.

Conducting internal audits and investigations of possible violations and helping draft voluntary disclosures to regulatory agencies.

Counseling clients on regulatory requirements affecting the movement of technology and services.

Customs

Advising companies on the U.S. regulatory requirements for imports of goods through the U.S. border, including issues of classification, origin and valuation.

Advising clients on participation in Customs C-TPAT and FTZ programs and compliance with related commitments.

Representing clients in Customs and Border Protection import enforcement actions; drafting voluntary disclosures when needed.

Developing import compliance programs and conducting internal audits and investigations of import processes and procedures.

Pro Bono

Assisting international public policy group with the drafting of a post-conflict constitution.

Advocating on behalf of human rights victims in front of the Inter-American

Commission on Human Rights.

Representing asylum applicants before the DOJ's Immigration Court.

Publications

"BIS Publishes Advance Notice of Proposed Rulemaking to Identify and Review Controls on Foundational Technologies: What's Next?", Thompson Hine International Trade Update, September 2020

“President Trump Signs the Hong Kong Autonomy Act and Issues Executive Order on Hong Kong Normalization,” Thompson Hine International Trade Update, July 2020

“Departments of State, Commerce, Homeland Security and the Treasury Caution Businesses Regarding Human Rights Abuses in Xinjiang,” Thompson Hine International Trade Update, July 2020

“DOJ’s Fraud Section Issues Revised Corporate Compliance Guidelines,” Thompson Hine White-Collar Criminal Practice Update, June 2020


“Commerce Issues Interim Final Rule Addressing Foreign-Produced Direct Products and Specifically Targets Huawei Technologies Co., Ltd.,” Thompson Hine International Trade Update, May 2020

"Petitions by Vehicle Producers for Alternative Staging Regime for Compliance with USMCA Rules of Origin for Automotive Goods Due to USTR by July 1," Thompson Hine International Trade Update, April 2020

“OFAC Issues Fact Sheet on Providing Humanitarian Aid to Combat COVID-

19 Under Various Sanctions Programs,” Thompson Hine COVID-19 Update, April 2020

“Government Measures Worldwide in Response to COVID-19,” Thompson Hine COVID-19 Update, April 2020

"FEMA Announces Export Restrictions on Personal Protective Equipment (PPE)," Thompson Hine COVID-19 Update, April 2020

“COVID-19 and International Trade: Status of Trade-Related U.S. Government Agencies & Courts and Helpful Online Resources,” Thompson Hine COVID-19 Update, March 2020

“Treasury Proposes Regulations to Institute CFIUS Filing Fees; Comments Due April 8,” Thompson Hine International Trade Update, March 2020

“New CFIUS Regulations Will Cover Certain Non-Controlling Investments and Real Estate Transactions,” Thompson Hine Business Law Update, Winter 2020

“Department of Justice Revises Export Control and Sanctions Enforcement Policy for Business Organizations,” Thompson Hine International Trade Update, January 2020

“U.S. Government Agencies Stress the Importance of Corporate Compliance Programs Through the Issuance of Guidance Documents,” Thompson Hine International Trade Update, July 2019

“New CFIUS Law Mandates Reporting of Certain Transactions Involving Foreign Investment in U.S. Companies,” Thompson Hine Business Law

Update, Winter 2019

“2018 Year in Review – Overview of President Trump’s Major Trade Actions,” Thompson Hine International Trade Update, January 2019

“Yates Memo Revised to Provide DOJ Greater Flexibility in Corporate Investigations,” Thompson Hine White-Collar/FCPA Update, December 2018

“Department of the Treasury Releases Interim Rules Expanding Scope of CFIUS and Creating Pilot Program for Certain Transactions,” Thompson Hine International Trade Update, October 2018

“Recent FCPA Developments,” Thompson Hine White-Collar Update, October 2018

“President Trump Withdraws United States from Iran Nuclear Deal,”

Thompson Hine International Trade Update, May 2018

“DOJ Officials Signal Expansion of Voluntary Self-Disclosure Incentives Beyond the FCPA,” Thompson Hine White-Collar Update, March 2018

“U.S. Department of Justice Provides New FCPA Voluntary Self-Disclosure Incentives,” Thompson Hine White-Collar Update, December 2017

“President Trump’s Cuba Policy Is Implemented,” Thompson Hine International Trade Update, November 2017

“CFIUS Annual Report Reflects Increased National Security Scrutiny of Foreign Acquisitions,” Thompson Hine Business Law Update, Fall 2017


“U.S. Sanctions on Sudan to Be Removed,” Thompson Hine International Trade Update, October 2017

“The FCPA Pilot Program One Year Later: What Have We Learned?,” Thompson Hine White-Collar Update, April 2017

“OFAC Sanctions 271 Employees of Syria’s Scientific Studies and Research Center,” Thompson Hine International Trade Update, April 2017

“Office of the U.S. Trade Representative Releases President Trump’s Trade

Policy Agenda,” Thompson Hine International Trade & Customs Update, March 2017

“ZTE Pleads Guilty to Illegal Exports to Iran and North Korea,” Thompson Hine International Trade & Customs Update, March 2017

“Trump Administration Sanctions Iran for Ballistic Missile Tests and Expands List of Medical Devices Requiring License for Export to Iran,” Thompson Hine International Trade & Customs Update, February 7, 2017

“United States Begins to Lift 20-Year-Old Trade Sanctions Toward Sudan,” Thompson Hine International Trade & Customs Update, January 24, 2017

“Trump Administration: Key Players in International Trade,” Thompson Hine

International Trade & Customs Update, January 17, 2017

“Looking Back: Trump and Trade,” Thompson Hine International Trade & Customs Update, January 9, 2017

“U.S. Further Normalizes Trade Relations with Cuba ,” Thompson Hine International Trade & Customs Update, October 18, 2016

"Compliance with U.S. Antiboycott Laws Critical in Foreign Transactions," Thompson Hine International Trade & Customs Update, October 13, 2016

"BIS and DDTC Harmonize Destination Control Statements for Use in Export Transactions," Thompson Hine International Trade & Customs Update, September 19, 2016

"United States Implements Trade Sanctions on Additional Persons & Entities

for Activities in Crimea," Thompson Hine International Trade & Customs Update, September 8, 2016

“OFAC Releases New Kingpin Act General Licenses Relating to Panama,” Thompson Hine International Trade & Customs Update, July 2016

“Commerce Releases New EAR Penalty Guidance,” Thompson Hine International Trade & Customs Update, June 23, 2016

“Caveat Emptor! Don’t Buy Another Company’s Export Violations,” Thompson Hine Business Law Update, Spring 2016

“U.S. Government Provides Additional Cuba Sanctions Relief,” Thompson Hine International Trade & Customs Update, January 29, 2016

“‘Implementation Day’” Brings Iran Sanctions Relief,” Thompson Hine International Trade & Customs Update, January 2016

“WTO Expands Scope of Products Under Information Technology Agreement,” Thompson Hine International Trade & Customs Update, December 2015

“OFAC General License Authorizes Certain Transactions Supporting Exports With Burma,” Thompson Hine International Trade & Customs Update,December 2015

“Preparations for Implementing Iran Agreement Begin,” Thompson Hine International Trade & Customs Update, October 20, 2015

“Iran Nuclear Deal Reached but Sanctions Remain in Place,” International

Trade & Customs Update, July 15, 2015


“Proposed Rule to Control Exports of Cybersecurity Technologies,” Thompson Hine International Trade & Customs Update, May 26, 2015

“New Export Policy to Govern Military & Commercial Use of U.S. Drones,” Thompson Hine International Trade & Customs Update, February 2015

“Regulatory Amendments Issued to Ease Cuba Sanctions,” Thompson Hine International Trade & Customs Update, January 22, 2015

“More U.S. Trade Sanctions & Restrictions Against Ukraine’s Crimea Region.”

Thompson Hine International Trade & Customs Update, January 7, 2015

“Obama Administration Eases Embargo Against Cuba,” Thompson Hine International Trade & Customs Update, December 19, 2014

“President Signs New Russia Sanctions Bill,” Thompson Hine International Trade & Customs Update, December 18, 2014

“U.S. Tightens Ukraine-Related Sanctions on Russian Entities,” Thompson Hine International Trade & Customs Update, September 30, 2014

Co-author, “Getting the Deal Through – Trade & Customs 2015,” Getting the Deal Through, Fall 2014

“U.S. and EU Expand Ukraine-Related Sanctions on Russian Entities,”

Thompson Hine International Trade & Customs Update, August 1, 2014

“Temporary Iran Sanctions Relief Extended to November 2014,” Thompson Hine International Trade & Customs Update, July 25, 2014

“U.S. Expands Ukraine-Related Sanctions to Russian Financial, Energy & Defense Technology Firms,” Thompson Hine International Trade & Customs Update, July 24, 2014

“Court Clarifies Foreign Government ‘Instrumentality’ Under FCPA,” Thompson Hine FCPA/Antibribery Update, May 21, 2014

"U.S. Expands Ukraine-Related Sanctions and Further Restricts Exports to Russia," Thompson Hine International Trade & Customs Update, May 2, 2014

“U.S. Issues Additional Sanctions in Response to Events in Ukraine,” Thompson Hine International Trade & Customs Update, March 21, 2014

“President Expands Sanctions on Russian and Ukrainian Officials,” Thompson Hine International Trade & Customs Update, March 2014

“President Issues Sanctions Regarding Ukraine,” Thompson Hine International Trade & Customs Update, March 6, 2014

"Iranian Sanctions Relief Has Little Direct Impact for U.S. Companies," Thompson Hine International Trade & Customs Update, January 2014

“SEC Conflict Minerals Rule Upheld,” Thompson Hine International Trade & Customs Update, July 2013

“Long-Awaited FCPA Guidance Released,” Thompson Hine International

Trade & Customs Update, November 2012

“New Iran Sanctions May Expose U.S. Companies to Liability for Foreign Subsidiary Transactions,” Thompson Hine International Trade & Customs Update, August 2012

“United States Condemns Argentina’s and Indonesia’s Import Trade Restrictions,” Thompson Hine International Trade & Customs Update, June 2012

“Bribes Paid by Foreign Sales Representative Lead to FCPA Conviction,” Thompson Hine Antitrust, Competition and Distribution Update, May 2011

“Guidance Issued for UK Bribery Act: Act Will Take Effect July 2011 and

Could Reach U.S. Companies,” Thompson Hine International Trade & Customs Update, April 2011


Presentations

Moderator, “FCPA Multi-Jurisdictional Enforcement,” Federal Bar Association Current Issues in Government Investigations Conference, April 26, 2018

Professional & Civic

Professional Associations

American Bar Association, Section of International Law and Practice

District of Columbia Bar, Section of International Law

New York State Bar Association

Admissions

District of Columbia

New York

Rebecca Rohr Hewlett Packard Enterprise

Rebecca (Becky) Rohr is Vice President, Anti-Corruption and Global Trade, in the

Ethics & Compliance Office at Hewlett Packard Enterprise. She supervises a team of

attorneys, auditors and compliance professionals located in offices around the world.

Before joining HPE in May 2016, Ms. Rohr served as the Principal Deputy Chief of the

Fraud Section in the Criminal Division of the Department of Justice, where she

supervised over 120 prosecutors who worked on cases involving the Foreign Corrupt

Practices Act, financial and securities fraud, and health care fraud. She graduated from

the U.C.L.A. School of Law and Cornell University. Ms. Rohr lives in Washington DC.

Mara V.J. Senn is currently a Director and Senior Counsel for Global

Compliance Investigations at Zimmer Biomet conducting investigations all over

the world with a particular focus on Latin America. She was previously a Senior

Investigator and Senior Litigation Specialist at the Integrity Vice Presidency at

the World Bank where she investigated allegations of corruption, fraud,

collusion, obstruction and coercion in World Bank-financed projects around

the world and litigated them in front of the World Bank Sanctions Board,

seeking debarment of companies and individuals from World Bank funding. Prior to the World

Bank, she was a federal international corruption prosecutor at the Department of Justice who

found, froze and forfeited the hidden assets of corrupt dictators and leaders around the world,

and prosecuted involved individuals. Before DOJ, she was a white-collar partner at Arnold &

Porter for 10 years. Mara received her law degree from New York University and got a

bachelor’s degree in economics and political science from Swarthmore College.

Global Trends in Anti-Corruption

Enforcement

September 30, 2020

This presentation is intended for the general information of individuals and organizations on matters of current interest. It is not legal advice. Participants should not act on the

information in this presentation without professional counsel. Participating in or viewing this presentation is not intended to establish and does not establish an attorney/client

relationship with Thompson Hine LLP.

Panelists

Rebecca Rohr, Vice President, Anti-Corruption and Global Trade, Ethics & Compliance Office, Hewlett Packard Enterprise

Mara Senn, Director & Senior Counsel, Global Compliance Investigations, Zimmer Biomet

Joan Meyer, Partner, White-Collar Criminal Practice, Internal Investigations & Government Enforcement, Thompson Hine LLP

Samir D. Varma, Partner, International Trade, Thompson Hine LLP

Update on Recent Enforcement

Impact of Alstom (Hoskins) Case

Intersection between Government Enforcement and Politics

International Considerations

Coordination between United States and Foreign Governments

New Anti-Corruption Laws in Foreign Jurisdictions

Impact of COVID-19

Compliance Concerns

Change in Investigation Techniques

Ability to Obtain Evidence

New Enforcement Priorities

Recent Guidance Documents

Update to FCPA Resource Guide

DOJ’ Evaluation of Corporate Compliance Programs

FCPA Opinion 20-1

Potential Legislative Actions

Countering Russian and Other Overseas Kleptocracy (CROOK) Act

Foreign Extortion Prevention Act

Corporate Transparency Act

What’s Next???

QUESTIONS?

Global Trends in Anti-Corruption

Enforcement

September 30, 2020

This presentation is intended for the general information of individuals and organizations on matters of current interest. It is not legal advice. Participants should not act on the

information in this presentation without professional counsel. Participating in or viewing this presentation is not intended to establish and does not establish an attorney/client

relationship with Thompson Hine LLP.

DOJ’sFraudSectionIssuesRevisedCorporateComplianceGuidelinesWhite-CollarCriminalPracticeUpdateDate:June03,2020

OnJune1,2020,withlittlefanfare,theDepartmentofJustice’sCriminalDivision,FraudSectionpublishedarevisedversionofitsguidancedocument,“EvaluationofCorporateCompliancePrograms.”This20-pagememoisthekeymeasuringstickfederalprosecutorsusewhenconductingananalysisofacompany’scomplianceprograminthecontextof“conductinganinvestigationofacorporation,determiningwhethertobringcharges,andnegotiatingpleaorotheragreements.”TheFraudSectionfirstreleasedthisguidanceinFebruary2017,withonepriorupdateinApril2019.

Withthesenewrevisions,DOJhasshownthatitisgrowingmoreexactinginitsexpectationsforcompaniesandisincreasinglyexpectingcompanieswhoseekleniencyduetothestrengthoftheircomplianceprogramtohaveasophisticatedanddata-orientedapproachtocompliance.Gonearethedaysthatcompanieswiththebareminimumincompliancepoliciesandprocedurescouldexpectanycompliance-relatedbenefitsfromDOJ.

Herearesomenotabletakeawaysfromtherevisions:

EnsuringtheComplianceFunctionHasActualResourcesandPower.Underthepriorguidelines,inassessingwhetherthecompany’scomplianceprogramwasbeingappliedin“goodfaith,”DOJaskedonlywhetheracompany’sprogramwas“beingimplementedeffectively.”Now,thenewguidelinesaskwhethertheprogramis“adequatelyresourcedandempoweredtofunction.”Thisisamuchhigherandmoreconcretestandard.TheDOJwillassesswhetherthecompanyisgivingmoney,personnelandauthoritytothecompliancedepartmenttoperformitsfunction.FocusonLessonsLearnedbytheCompanyItself–andtheIndustryandtheGeographicRegion.Intwopassages,DOJaskswhetherthecompanyhasaprocessfortracking“lessonslearned,”bothfromthecompany’sownpriorissuesandthoseinthesame“industryand/orgeographicregion.”Thisplacesapremiumoncompanieslearningfromtheirownpastproblems,aswellasdisplayingsituationalawarenessintheirindustry’sandregion’sspace.Thisrevisioneffectivelydeniesanycompliancecredittocompaniesthatignoreindustryrisksorbelieveifaproblemdidnothappenspecificallytotheircompany,thentheydon’thavetounderstandorrespondtoinherentrisks.Companiesnowmustnotonlymonitortheirownprograms,butalsomonitorenforcementactionsbroughtagainsttheircompetitorsandbusinesspartners.NeedforContinuousThird-PartyMonitoring.Alwaysahotareaforcompliance,especiallyintheForeignCorruptPracticesActspace,therevisedguidanceaddsanadditionalexpectationthatcompanieswillperformcontinuousduediligenceonthethirdpartiestheyhire.Thenewguidanceasksifthecompanyengages“inriskmanagementofthirdpartiesthroughoutthelifespanoftherelationship,orprimarilyduringtheonboardingprocess?”ANeedtoJustifyAnyComplianceImpedimentsBasedonForeignLaw.TherevisedguidanceintwoplacesmakesclearthatDOJwillcriticallyexamineacompany’sassertionsthatitstructureditscomplianceprograminawaythathewedtothe“company’sconclusionaboutforeignlaw.”Withthisedit,DOJissignalingthatitexpectscompaniesnottoskimponcomplianceforreasonspurportedlyrelatingtoforeignlaw.TheDOJstillexpectsthatthecompanywillmaintaintheintegrityandeffectivenessoftheprogram,evenifforeignlawrequirementsarelessstringent.TheComplianceFunction’sRealisticAccesstoCompanyData.Anewsectiondiscusseswhetherthecomplianceandcontrolpersonnelhave“accesstodata”sufficienttoallowthemtomonitorcompliance.ThisunderscorestheimportanceDOJisplacingonthe“bootsontheground”realitysurroundingwhetheracompany’scomplianceofficerscanactuallygainaccesstothecompany’ssensitiveandproprietarydatafortestingandmonitoring,orifthecorporationimpedessuchaccessinfavorofrunningthebusiness.Accesstodatacanbequitechallenging,especiallyifacompanyhasacquiredotherbusinessesrecentlyandhasnotyetintegratedaccountingsystems.Accesstodatawillbeanespeciallycriticalcomponenttomanagingacomplianceprogram.

https://www.thompsonhine.com/

https://www.justice.gov/criminal-fraud/page/file/937501/download

Companieswhoareon,orhavebeenon,DOJ’sradarscreenoroperateinhigh-riskorhighlyregulatedindustriesarewelladvisedtoreviewandimplementtheguidance,asappropriatetotheirbusiness.Withthesenewchanges,DOJhasmadeclearthatitscomplianceexpectationsaregrowingincreasinglyheightened.Notably,DOJreleasedtherevisedguidanceinthemidstoftheCOVID-19pandemicandnationwidecivilunrest,protestsandlooting,signalingtocompaniesthatitsexpectationsformorerobustandmeaningfulcomplianceprogramsaredurableeveninthefaceofnationalandinternationalturmoil.

FORMOREINFORMATIONFormoreinformation,pleasecontact:

[email protected]

[email protected]

[email protected]

Thisadvisorybulletinmaybereproduced,inwholeorinpart,withthepriorpermissionofThompsonHineLLPandacknowledgmentofitssourceandcopyright.Thispublicationisintendedtoinformclientsaboutlegalmattersofcurrentinterest.Itisnotintendedaslegaladvice.Readersshouldnotactupontheinformationcontainedinitwithoutprofessionalcounsel.

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9/30/2020 Too Little Too Late: DOJ Releases FCPA Opinion that Provides a Generic Analysis | Does Crime Pay?

https://www.doescrimepay.com/2020/08/too-little-too-late-doj-releases-fcpa-opinion-that-provides-a-generic-analysis/ 1/3

Does Crime Pay?Does Crime Pay?Tales from the White-Collar Criminal Defense TrenchesTales from the White-Collar Criminal Defense Trenches

Too Little Too Late: DOJ Releases FCPA Opinion that Providesa Generic AnalysisBy Samir Varma & Joan Meyer on August 19, 2020

Late last week, the Department of Justice (DOJ) issued a Foreign Corrupt Practices Act (FCPA)Opinion 20-1, its �rst such opinion in almost six years. In the Opinion, the DOJ advised a U.S.-basedinvestment advisor that the DOJ did not intend to take any enforcement action related to thepayment of certain fees to a foreign investment bank indirectly owned by a foreign government. Unfortunately, the Opinion offers little insight into DOJ’s FCPA enforcement priorities.

The facts outlined in the Opinion are relatively straightforward. A multinational �rm headquarteredin the United States (the “Requestor”) received assistance from a subsidiary (the “Country B O�ce”)of a foreign investment bank indirectly owned by a foreign government related to a purchase ofassets from a different subsidiary (the “Country A O�ce”) of the same bank. The Country B O�cerequested fees in the amount of $237,500, which was equal to 0.5% of the purchased assets, tocompensate for the assistance it provided on the Requestor’s behalf.

https://www.doescrimepay.com/

http://www.thompsonhine.com/professionals/varma-samir

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In stating that it did not intend to commence an enforcement action, the DOJ referenced thefollowing factors: (1) the payment was to a foreign government instrumentality, namely the CountryB O�ce, and not a speci�c individual or foreign o�cial; (2) there was no evidence that the paymentwas intended to corruptly in�uence a foreign o�cial; (3) the Requestor received speci�c, legitimateservices from the Country B O�ce, and (4) the fees were commercially reasonable andcommensurate with the services provided. The Opinion did not provide detailed informationregarding the entities involved, the services provided, or any further clarity into the issues presented.

Perhaps the biggest takeaway is the lack of insight the Opinion provided. It was issued as part ofthe DOJ’s Opinion Procedure Release, a scarcely used procedure that allows companies subject tothe FCPA to obtain an opinion from the DOJ regarding whether certain speci�ed, prospective, nothypothetical, conduct conforms with the DOJ’s FCPA enforcement policy. Prior to this currentrelease, the last opinion release occurred in November 2014, which concluded a run of roughly onlytwo releases per year for the prior 20 years.

There are several reasons why the Opinion Procedure Release is rarely used. For one, the length oftime for an opinion to be issued can be considerable. In the instant case, the Opinion was issuedabout nine months after the initial request was submitted, and included several supplementalinformation requests. In addition, even with the use of pseudonyms, companies may be hesitant torequest opinions given the public nature of the advice and the fact that they are consulting aprosecutorial body about the legitimacy of a transaction. Finally, the opinion process does not givecomfort to companies that they will never be prosecuted. Should other facts come to light thatwere not provided to the government before the opinion was issued, the DOJ is free to prosecute. This is a risk most companies choose not to take.

The Opinion comes on the heels of the DOJ’s release of an updated version of its Resource Guide tothe FCPA, which may suggest a continued effort by the DOJ to keep the FCPA unit visible during thecoronavirus pandemic. International travel has stalled and FCPA investigations have most certainlylanguished. However, the DOJ could have relaunched its use of the opinions process with a moresigni�cant analysis that would have made a greater splash with FCPA practitioners. The six-year dryspell without opinions and the issuance of this generic analysis likely signals that the FCPA opinionsprocedure will continue to remain largely dormant.



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9/30/2020 Not Very New Wine in an Old Bottle: Recent Revisions to the DOJ FCPA Resource Guide | Does Crime Pay?

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Not Very New Wine in an Old Bottle: Recent Revisions to theDOJ FCPA Resource GuideBy Joan Meyer & Norman Bloch on July 9, 2020

The Department of Justice (DOJ) just released an updated version of its Resource Guide to theForeign Corrupt Practices Act. While the new version does not announce any groundbreakingchanges, it now includes updates and references to recently issued policies, such as the DOJ’sCorporate Enforcement Policy, Evaluation of Corporate Compliance Programs, and the CorporateMonitorship Policy. The updated guidance was released with little fanfare on Friday night, July 3,2020, as the Criminal Division at Main Justice was undergoing a change in leadership. The Guide islargely the same document and limited to a discussion of the FCPA, but it nonetheless is a usefultool for practitioners seeking to understand the government’s corporate charging policies generally.The Resource Guide is lengthy, at almost 200 pages, and the new revisions do not lengthen itfurther. The DOJ has mostly restructured sections and added more recent cases for discussion butlargely left the Guide intact. Nevertheless, certain revisions to the Resource Guide merit emphasisand are highlighted below.

The Aftermath of Hoskins

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The DOJ is careful in this guidance to characterize the reach of criminal co-conspirator and aidingand abetting liability as a result of a recent, well-publicized Second Circuit decision that limited theDOJ’s ability to pursue foreign nationals who participate in a bribery scheme. In United States v.Hoskins, 902 F.3d 69 (2d Cir. 2018), the Second Circuit held that a foreign national who was nototherwise covered by the speci�cally enumerated categories in the FCPA, could not be prosecutedusing co-conspirator or aiding and abetting liability. The Court held that the government couldproceed on the theory that Hoskins was an “agent” of a “domestic concern” which required thegovernment to prove that Hoskins, who was a foreign national working for a foreign subsidiary,participated in a bribe scheme and took direction from the U.S. subsidiary. The governmentultimately persuaded a jury to convict Hoskins on various charges, although post-verdict, the districtcourt acquitted Hoskins on the foreign bribery counts because there was insu�cient evidence of“agency.” With these setbacks, the DOJ is now limited in pursuing its expansive view of co-conspirator liability under the FCPA, at least in the Second Circuit.

The DOJ says as much in the Guide, acknowledging the opinion and its application in the SecondCircuit, but also noting that a district court in the Seventh Circuit disagreed with the holding andconcluded that precedent in the Seventh Circuit would dictate that defendants could be criminallyliable for violations of the anti-bribery provisions of the FCPA as co-conspirators or aiders andabettors, even if they did not fall under one of the enumerated categories of liability in the statute.United States v. Firtash, 392 F. Supp. 3d 872, 889 (N.D. Ill. 2019). Although the DOJ cites Firtash,presumably to make the point that the law is not settled, it has cautiously revised the Guide, deletingbroad language in its description of the breath of the anti-bribery provisions. Previously, the DOJstated that a foreign national who attended a meeting in the United States would be subject to theFCPA, as well as co-conspirators or aiders and abettors, “regardless of whether the foreign nationalor company itself takes any action in the United States.” (Emphasis added.) That reference is deleted.Similarly, in an example in the same section, the DOJ also deleted language indicating that acompany and an intermediary working on behalf of an “issuer” would be liable if they had nevertaken action in the territory of the United States, both as co-conspirators and for substantiveviolations of the anti-bribery provisions, because the violations were “reasonably foreseeable” and infurtherance of the conspiracy. (Emphasis added.) Although the DOJ will continue to try to limit theapplicability of Hoskins in other circuits, it appears to be taking a more restrained approach andpulling back on previously broad assertions of conspiracy liability under the FCPA. In practice, thecourt-imposed limitation may not mean much because DOJ has many other ways of chargingdefendants, including the use of money-laundering and various fraud statutes.

De�ning a State-Owned or State-Controlled Entity



Before any kind of judicial guidance, practitioners were forced into their own fact-based analysis asto what constituted an “instrumentality” of the state when determining whether a target entity was astate-owned or -controlled company under the FCPA. This analysis was, and is, critical for in-housecompliance personnel in determining whether their company’s interactions with employees of theseentities were “foreign government o�cials.” A few years ago, the Eleventh Circuit issued a well-reasoned opinion that will greatly assist in this analysis. United States v. Esquenazi, 752 F.3d 912(11 Cir. 2014) set forth factors that determined whether a Haitian telecommunications companywas a state-owned or controlled company under the control of the Haitian government. Thereasoning of the Circuit, including the applicable factors to analyze that question, have now beenincorporated into the DOJ’s Guide. The factors in determining whether the government controls anentity include: (1) the government’s formal designation of the entity; (2) whether the government hasa majority interest in the entity; (3) the government’s ability to hire and �re principals of the entity; (4)the extent to which the entity’s pro�ts go directly into the government’s �scal accounts, and if thegovernment has or will fund the entity when it is operating at a loss; and (5) the length of time thesefactors have existed.

In addition, factors determining whether the entity is performing a function that is essentially agovernmental function include: (1) whether the entity has a monopoly over the function it seeks tocarry out; (2) whether the government subsidizes the entity’s costs in providing the service; (3)whether the entity provides services to the public at large in the foreign country; and (4) whether thepublic and the government of the foreign country generally perceive the entity to be performing agovernmental function. This second part of the analysis is also important. It is not enough forcounsel to analyze whether the entity is state-owned or controlled, but counsel must also evaluatewhether the pertinent function it performs has enough government characteristics to be considereda governmental action.

While the analysis in Esquenazi has already been used by FCPA practitioners, it is helpful that theDOJ adopted these factors in its new guidance to further assist outside counsel, as well ascompanies training their compliance staff. Moreover, the recent cases prosecuted and cited in theDOJ guidance �t squarely within that analysis. In determining whether a company was a state-owned entity in various cases, the DOJ cites factors such as the receipt of special tax advantages,the appointment of management or board members by government o�cials, the installation ofpolitical appointees as managers, or a government’s large ownership stake and veto power overmajor expenditures.

In adopting the Eleventh Circuit’s analysis and illustrating it with recent cases, the revised ResourceGuide provides greater clarity in de�ning what companies or entities are “instrumentalities” and, as a

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consequence, who would be a “foreign government o�cial” under the FCPA.

A Parent Company’s Liability for the Actions of Its Subsidiaries

The revised Resource Guide reiterates the government’s position that a parent may be liable for itssubsidiary’s conduct under traditional agency principles. While there has been recent discussionabout how far the government would take this concept, the outgoing AAG of DOJ’s Criminal Divisionhas assured practitioners that the DOJ does not intend to hold parent companies liable forsubsidiaries merely because of corporate ownership, but instead would evaluate each case on itsown facts. AAG Benczkowski’s Remarks at ACI’s 36 Conference on the Foreign Corrupt PracticesAct, December 4, 2019. The result in Hoskins shows that the government needs a strong showing ofcontrol and direction to establish agency in a criminal case.

The revised Resource Guide acknowledges that the government will evaluate the control exercisedover the subsidiary, including the parent’s knowledge and direction of the subsidiary’s actions. Whilethe guidance states that “if an agency relationship exists between a parent and a subsidiary, theparent is liable for the bribery committed by the subsidiary’s employees,” that statement is too broadand should be read along with other parts of the guidance and recent remarks by the outgoing AAG.Viewing DOJ ’s guidance in its entirety, the following questions need to be asked in evaluatingparental liability: Did an agency relationship exist between the parent and subsidiary? Did the parenthave knowledge of, or direct, the actions of the subsidiary generally and related to the speci�ctransactions in question? Did the subsidiary act within the scope of authority conferred by theparent? The revised Guide is clear that DOJ will not be deterred by the formalities of the corporatestructure but will focus on a fact-based inquiry into the parent’s conduct in conferring authority andproviding direction to its subsidiaries, particularly with respect to the misconduct at issue.

A Nod to Internal Controls

With the emphasis the government has placed on compliance, companies are often asked detailedand speci�c questions about the state of their �nancial controls. The government notes in therevised Resource Guide that a compliance program and internal controls are not the same, but bothcontain a number of components that overlap and should be monitored. When reviewing internalcontrols, the Guide directs companies to take into account the risks of its business, including thetype of products and services it provides, how products and services get to market, the nature of thecompany’s work force, the degree of regulation, the extent of government interaction, and thedegree to which it has business in high risk countries. While these factors are not new, the

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government’s increasing focus on �nancial compliance should prompt companies to continue tointegrate their compliance and audit functions.

Conclusion

The revised FCPA Resource Guide did not tackle some of the very important issues facingcompanies today. The Guide notes that the DOJ has coordinated resolutions with foreigngovernments in ten cases and the SEC has coordinated in �ve cases which demonstrates that thegovernment is attempting to avoid “piling on” by imposing duplicative penalties. But for multinationalcompanies that often face years of investigation by multiple foreign governments after the DOJ andSEC settle their cases, these statistics are not promising. Foreign authorities can be moredisorganized, lack resources, or may not be bound by any statute of limitations. All of these factorscan cause unacceptable delays in negotiating separate foreign resolutions and can result induplicative penalties imposed long after the misconduct occurred. Moreover, data privacy and cybersecurity concerns for employee and proprietary data are top priorities for companies operating inmultiple, high risk regions or in countries with a track record of trade secret theft. Moving dataacross borders to satisfy U.S. government requests can be problematic under these conditions, butthe Resource Guide does not give guidance on these issues. Perhaps in the next set of revisions, theDOJ and SEC will give greater thought as to how companies can meet these challenges when theyseek to cooperate in a government investigation.

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