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Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, host Tom Fox is joined Mike Huneke to explore the impact of the recent election on corporate compliance and enforcement.  Key topics include the continuity of corporate enforcement, the focus on national security in anti-corruption efforts, and the implications of U.S. policies on business operations in China. The dialogue also highlights the importance of a holistic and multidisciplinary approach to risk management and the need for corporations to proactively engage in public policy discussions. Through detailed analysis and real-world examples, Mike provides a nuanced perspective on how businesses can navigate the evolving regulatory environment. Key Highlights ·      Corporate Enforcement Trends ·      FCPA Enforcement Policies ·      China Policy and Business Implications ·      Holistic Risk Management Framework ·      Proactive Public Engagement Resources: Hughes Hubbard & Reed website  Mike Huneke

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. This week, we will feature five lawyers from HHR to introduce the firm’s always popular and annual FCPA and Anti-Bribery Alert. In part 5 of the 5-part series, host Tom Fox is joined by Sam Salyer on some key trends and highlights in enforcement and compliance from 2024. Tom and Sam explore the smaller number of corporate enforcements and the significance of four individual trials, including the notable Myrta and Aguilar cases. Sam elaborates on the DOJ’s updated Evaluation of Corporate Compliance Programs (ECCP), emphasizing the importance of emerging risks and technology. They also delve into the DOJ’s new whistleblower program, its implications for internal compliance professionals, and the potential effects of the recently signed Foreign Extortion Prevention Act. This episode is a comprehensive wrap-up for compliance officers and legal professionals aiming to stay ahead in 2024. Key highlights: Enforcement and Compliance in Brazil Enforcement in France and the Success of the Paris Olympics in Compliance ESG for US companies under the Trump Administration Resources: Hughes Hubbard & Reed website 2024 Fall FCPA and Anti-Bribery Alert Sam Salyer

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, host Tom Fox welcomes back Mike Huneke to discuss the recent French election and its implications. They explore the French electoral system, potential parallels with American and English elections, and the geographical and socio-economic dichotomies within France. The conversation also delves into the impact of European enforcement policies on multinational companies, particularly in areas such as environmental governance, anti-corruption enforcement, and data privacy. They also touch on the potential influence of the upcoming Paris Olympics and new European sanctions and export control directives on future compliance and enforcement landscapes. Key Highlights ·      Understanding the French Electoral System ·      Comparing French and American Electoral Dynamics ·      Impact of Recent Elections on French Politics ·      France's Role in European Enforcement and Governance ·      Challenges in Data Privacy and Compliance ·      Future Outlook   Resources: Hughes Hubbard & Reed website  Mike Huneke

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. In this podcast, host Tom Fox welcomes back Mike DeBernardis to discuss recent corruption convictions involving individuals connected to Venezuela, as highlighted in Hughes Hubbard & Reed’s ‘Month in a Minute.’ We use these criminal matters as a starting point to discuss how companies can effectively manage compliance in high-risk areas by assessing risks, crafting risk management strategies, implementing specific controls, documenting processes, and training employees. We emphasize the importance of maintaining thorough documentation to meet regulatory requirements and auditing standards. Key Highlights: Month-in-a-Minute Overview Compliance in High-Risk Areas Risk Management Strategies Documenting and Presenting Compliance Resources: Hughes Hubbard & Reed website Mike DeBernardis

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, Tom Fox is joined by Jan Dunin-Wasowicz a partner at Hughes Hubbard & Reed, who is a leading figure in trade sanctions and Jeff Nielsen, International Sanctions & Export Controls Lawyer at Rambol, for a deep dive into current issues in export control and economic sanctions. In Part 2 of a special two-part series on All Things Investigations, host Tom Fox is once again joined by Jeff Nielsen and Jan Dunin-Wasowicz to discuss trade sanctions from a global perspective. In this Part 2, Jeff and Jan provide their expertise on the EU Directive on Harmonization of Criminal Sanctions, detailing its implications and the challenges faced in its implementation across the 27 member states. They explain the mechanics of EU sanctions, enforcement disparities among member states, and the directive's focus on setting minimum standards for criminal offenses. The conversation also delves into future outlooks on the EU's stance towards the Russian invasion of Ukraine and the evolving profession of trade sanctions compliance. Key Highlights: Understanding the EU Directive on Harmonization of Criminal Sanctions Challenges and Implications of the Directive Future of Trade Sanctions and Compliance Career Advice for Aspiring Trade Sanction Experts Conclusion and Final Thoughts Resources: Hughes Hubbard & Reed website Jeff Nielsen on LinkedIn Jan Dunin-Wasowicz on LinkedIn HHR client alert on The Dawn of a New Era for EU Sanctions Enforcement? EU Adopts Directive on the Definition of Criminal Offences and Penalties for the Violation of EU Sanctions

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, I joined by Jan Dunin-Wasowicz and Jeff Nielson, International Sanctions & Export Controls Lawyer at Rambol, for a deep dive into current issues in export control and economic sanctions.   Jeff Nielsen, an American lawyer with expertise in US and European Union sanctions, currently works at a prominent Danish engineering firm, having transitioned from practicing law in the US to navigating the complexities of international sanctions. Jan​​​​ Dunin‑Wasowicz, a partner at Hughes Hubbard & Reed, is a leading figure in trade sanctions, operating globally out of the Paris office. Nielsen’s perspective on trade sanctions is shaped by his direct experience with US and European Union regulations, viewing the field as dynamic, challenging, and necessitating an understanding of both legal frameworks and international relations. Similarly, Dunin-Wasowicz emphasizes the industry's complexity, dynamism, and the importance of staying informed about global affairs to anticipate risks. His work underscores the increasing role of the private sector in dealing with sanctions, highlighting the need for a proactive and adaptable approach to risk assessment in this evolving field. Key Highlights ·      Private Sector Role in Evolving Trade Sanctions ·      Dynamic Compliance Strategies in Trade Regulations ·      Sanctions Enforcement Disparity: EU vs US ·      Global Landscape Risk Assessment in Trade Compliance  Resources: Hughes Hubbard & Reed website  Jeff Nielsen on LinkedIn HHR client alert on The Dawn of a New Era for EU Sanctions Enforcement? EU Adopts Directive on the Definition of Criminal Offences and Penalties for the Violation of EU Sanctions

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. In this episode, Tom Fox is joined by Yi-Chin Ho, who is the head of the firm’s China Practice. Yi-Chin Ho is a seasoned legal professional and co-chair of the China Practice at Hughes Hubbard Reed, with a strong foundation in cross-border legal practice. Ho’s perspective on cross-border legal practice, deeply embedded in her varied experiences, is based on her belief in its critical role for business growth and development, even amidst political tensions between nations such as the US and China. She underlines the importance of the symbiotic relationship between countries, emphasizing their mutual dependency on each other’s goods, services, and expertise. Ho, a trilingual, cross-cultural lawyer, believes in finding creative solutions and providing effective counsel to navigate through challenging situations in cross-border dealings. Her culturally diverse background and proficiency in Mandarin Chinese have been instrumental in bridging gaps and facilitating successful business transactions between different countries. Key Highlights: Cultural Nuances in Cross-Border Business Engagement  Strategic Advisory for Cross-Border Disputes Discovery Challenges in Cross-Border Investigations in China Growing Preference for Chinese Arbitration Venues Risk Assessment and Negotiation Strategies Guidance Resources: Hughes Hubbard & Reed website  Yi-Chin Ho

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

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, I joined by Hughes Hubbard Special Counsel, Thomas Lee to discuss the recent decision declaring unconstitutional the Corporate Transparency Act (CTA) in the case of NSBA v. Yellen. Thomas Lee  specializes in appellate law and constitutional issues. With nearly a decade of tenure at the firm and an impressive 21 years of teaching constitutional law at Fordham Law School, Lee is highly respected in his field. Lee and the HughesHubbard team brought the lawsuit on behalf of the National Small Business Association arguing the CTA was a constitutional over-reach, as it mandated the reporting of beneficial ownership data to combat money laundering and criminal activities. The constitutional claims included no Congressional authority for this regulation, privacy concern and lack of a foreign treaty ratified by Congress requiring the law. Drawing from his extensive background in constitutional law, they successfully argued that this federal regulation challenges traditional state regulation of entity formation and exceeds governmental power. This decision in the National Small Business Association case is a landmark case, which has now been appealed to the 11th Circuit Court of Appeals and appears headed to the US Supreme Court.  Key Highlights ·      Beneficial Ownership Reporting Requirement for Entities ·      Constitutional Challenges in Corporate Transparency Legislation ·      Court Proceedings of the Corporate Transparency Act ·      Efficient Negotiations and Potential Supreme Court Involvement  Resources: Hughes Hubbard & Reed website  Thomas Lee

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. In this podcast, Hughes Hubbard & Reed LLP partner Mike Huneke and I speak with Mei Li Zhen, Head of Ethics & Compliance, Commercial Operations & Subsidiaries, Airbus, about her role in the organization's compliance department. Mei Li Zhen and Michael Huneke are two accomplished professionals with extensive backgrounds in compliance programs and company culture, having both transitioned from external counsel to in-house counsel roles at Airbus. With her experience working with diverse international backgrounds, Zhen believes that a strong, company-wide, embraced compliance program is not just about avoiding fines but is a competitive advantage that attracts young talent and gains the trust of investors and governments. She sees integrity as beneficial for the bottom line and emphasizes the importance of everyone in the organization feeling responsible for behaving with integrity. Huneke, a US-qualified lawyer working in France, shares a similar perspective. He sees a strong compliance program as a self-reinforcing cycle that attracts the right talent and enhances the business's reputation and reliability. Like Zhen, Huneke believes that compliance should permeate the entire company culture, with every employee feeling accountable for maintaining integrity in their daily activities. Key Highlights: Airbus' Global Commitment to Compliance and Trust Ethics Ambassadors Shaping Airbus Compliance Culture Enhancing Team Trust through Transparent Communication Establishing Trust Through Empathetic Communication Practices Ethical Compliance Leadership in the Aerospace Industry Resources: Hughes Hubbard & Reed LLP Website Mei Li Zhen on LinkedIn

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. In this podcast, I was joined by HughesHubbardReed partner Mike Huneke and Brent Carlson, Director at BRG, to discuss the concepts around their recent paper, Boards of Directors Lovin’ It after McDonald’s? A Fresh Look at Directors’ Duty of Oversight in the New Era of Sanctions & Export Control Corporate Enforcement. Mike Huneke and Brent Carlson are seasoned professionals specializing in fraud compliance, corruption issues, sanctions, and export control enforcement. Huneke’s perspective on the duties of directors in sanctions and export controls is that boards need to be proactive and engaged in understanding and addressing these risks, emphasizing the importance of caution, skepticism, and diligence in overseeing these critical areas of compliance. His views are shaped by his experience in investigating, litigating, remediating, and preventing fraud, as well as his belief in the importance of good corporate governance and risk management. Carlson emphasizes the significance of understanding geopolitics in the context of company operations and advocates for a return to fundamental principles amidst rapid regulatory changes. His perspective is shaped by his experience in assisting companies navigate the complexities of sanctions and export controls, and his belief in the importance of boards actively engaging with management, asking questions, and ensuring thorough investigations are conducted. Key Highlights: Directors’ Role in Export Control Compliance McDonald’s Case: Duty of Oversight Emphasis Dynamic Compliance Monitoring for Export Controls Directors’ Accountability for Compliance and Risk Management Proactive Board Oversight for Compliance Excellence Resources: Hughes Hubbard & Reed website Brent Carlson on Linkedin This podcast is based on:  Brent & Mike’s blog post on directors’ duty of oversight can be found here: Boards of Directors Lovin’ It after McDonald’s? A Fresh Look at Directors’ Duty of Oversight in the New Era of Sanctions & Export Control Corporate Enforcement (Jan. 12, 2024). For more on sanctions and export control compliance in the new era of FCPA-like corporate enforcement, see Brent’s and Mike’s prior posts here: — Brent’s piece that launched the series, When Loopholes Create Liability Pitfalls: A Fresh Look at Export Controls (Aug. 25, 2023). — How can you assess your risk of sanctions violations?  Know Your Customer, But Also Yourself: A Fresh Look at Sanctions & Export Controls Risk Assessments in the Era of the “New FCPA” (Sept. 28, 2023). — If you discover a sanctions problem, how can you efficiently investigate and remediate it?  Slow is Smooth, Smooth is Fast: A Fresh Look at Planning and Executing Internal Investigations into Allegations of Sanctions or Export Controls Evasion (Oct. 30, 2023). — What does that mean for future fines and penalties for export control evasion?  From Peanuts to Prison Time – A Fresh Look at the Evolution of Export Controls Penalties (Nov. 14, 2023). — Why is an FCPA “mindset” required for sanctions and export control compliance, and how to apply one?  The Blind Men and the Elephant (Dec. 18, 2023).

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. In this podcast, I joined HughesHubbardReed partner Kevin Carroll to take a deep dive into the DC Court of Appeals opinion on the immunity claim of Citizen Trump. Kevin Carroll's perspective on the percussive opinion on Trump's immunity doctrine claims is that it was a significant and positive development for democracy. Carroll expresses satisfaction with the unanimous opinion and believes that it comprehensively addresses the issues at stake. His understanding of the resolution of Bill Clinton's special counsel case further reinforces his belief that former presidents can be held criminally liable for conduct committed in office. He also emphasizes the importance of the opinion being written in a way that is understandable to non-lawyers and the weight of the per curium nature of the opinion, indicating that all three judges signed it, making it difficult to challenge or dismiss any part of it. Join Tom Fox and Kevin Carroll on this episode of All Things Investigation to delve deeper into this topic. Key Highlights: Unified and Authorless Judicial Decisions Expiration and Integration of Presidential Terms Influence and Binding of the Opinion The Crucial Role of the Appeal Process Wither the Mandate? Resources: Hughes Hubbard & Reed website  Kevin Carroll on LinkedIn

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. This week, we will feature five lawyers from HHR to introduce the firm’s always popular and annual FCPA and Anti-Bribery Alert. In this fourth podcast of the 5-part series, host Tom Fox is joined by Tamara Kraljic on the key lessons learned in anti-corruption compliance and from international enforcement in 2024. Their conversation opens with an overview of the alert’s key findings, particularly the developments in international anti-corruption enforcement. They delve into updates from Brazil, including the 10-year anniversary of the Clean Company Act and new measures by Brazil’s Office of the Comptroller General (CGU), like the ‘term of commitment’ and updated integrity program guidelines. Additionally, they touch upon France’s anti-corruption efforts, reflecting on the corporate culture of compliance and the impact of the recent Corporate Sustainability Reporting Directive (CSRD). The episode provides a comprehensive overview geared towards a corporate audience interested in anti-corruption trends and regulations. Key highlights: Enforcement and Compliance in Brazil Enforcement in France and the Success of the Paris Olympics in Compliance ESG for US companies under the Trump Administration Resources: Hughes Hubbard & Reed website 2024 Fall FCPA and Anti-Bribery Alert Tamara Kraljic 

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, I joined by HughesHubbardReed partner Mike DeBernardis to discuss the recently announced FCPA enforcement action involving SAP. Mike DeBernardis is a seasoned expert in the field of FCPA enforcement, with a specific focus on the SAP enforcement action and the critical role of compliance programs. Drawing from his extensive knowledge of corruption schemes in various countries and the role of third-party intermediaries in these activities, DeBernardis views the SAP enforcement action as a pivotal case study that underscores the importance of robust compliance programs and proactive remedial actions. He commends SAP for their significant investment in their compliance program and their willingness to alter their business practices, such as severing certain third-party relationships and high-risk conduct. DeBernardis believes these actions reflect a commitment to business integrity and serve as a valuable lesson for companies navigating complex investigations. Join Tom Fox and Mike DeBernardis as they delve deeper into this topic on this episode of All Things Investigations. Key Highlights ·      SAP's Corrupt Third-Party Intermediaries and Enforcement Action ·      The Power of Cooperation and Remediation ·      DOJ's Emphasis on Cooperation and Technology Resources: Hughes Hubbard & Reed website  Mike DeBernardis on LinkedIn

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, I joined by HughesHubbardReed partner Kevin Carroll as we continue to review the various indictments against former President Trump. In this episode we look at the oral argument in the DC Court of Appeals immunity defense appeal. Kevin Carroll, a professional in the field of investigation and law, brings his expertise to the podcast "All Things Investigation" with Tom Fox. Carroll's perspective on the topic of Trump's immunity claims and military officers' constitutional oath is shaped by his deep understanding of the various Trump lawsuits and his military background. He believes that military officers have a strong commitment to upholding their constitutional oath, distinguishing them from oppressive organizations like the SS or the Soviet KGB. Carroll also expresses concern about the potential harm caused by the irresponsible behavior of former President Trump and his lawyers. Join Tom Fox and Kevin Carroll on this episode of the All Things Investigation podcast for more insights into these topics. Key Highlights Trump's Absolute Immunity Claims and Criticisms The Significance of the Constitutional Oath Ongoing Lawsuits and National Security Proceedings Resources: Hughes Hubbard & Reed website  Kevin Carroll on LinkedIn

Today’s episode of All Things Investigations is a deep dive into the 2023 FCPA Alert with Tom Fox, Laura Perkins, and Kevin Abikoff from Hughes Hubbard and Reed. They unravel the complexities of the latest updates in anti-corruption laws, focusing on the impact these changes have on companies in the U.S. and abroad. They share a detailed analysis of the current anti-corruption enforcement landscape practical advice for navigating these legal waters, and how we can draw inspiration from a rock and roll great. Laura Perkins and Kevin Abikoff, from Hughes Hubbard’s Anti-Corruption and Internal Investigations Practice Group, join Tom Fox in this episode. Laura Perkins is the former Assistant Chief for FCPA enforcement at the DOJ, and Kevin Abikoff is a prominent attorney specializing in compliance, anti-corruption law, and internal investigations. Their combined insights provide a unique perspective on the challenges and strategies in compliance and anti-corruption, crucial for businesses operating globally. In this episode, you’ll hear Tom, Laura, and Kevin discuss: Why the FCPA Alerts from Hughes, Hubbard, and Reed always start with a quote from a popular artist – this year’s from Jimmy Buffet: “Go fast enough to get there but slow enough to see.” The guidance that was originally issued in 2021 has evolved as the Department of Justice gains experience with the policies and how they want companies to follow them.  Empowering compliance officers who are on the front lines of protecting companies and shareholders, and how doing so is ultimately good for business. What it can mean for companies to self-report to the DOJ and whether or not all of the implications have been considered. For years, the DOJ has been talking about compliance incentives, repercussions, and compensation, and this year, they have taken it a step further by allowing companies to benefit via reductions in fines based on their efforts to bring repercussions to individuals involved in misconduct. Company boards are obliged to exercise business judgment, which includes taking into account financial repercussions or pursuing bad actors. The new guidance may open the floodgates for private plaintiffs to sue boards that do not. Lessons learned from specific enforcement actions from DPA’s, NPA’s, and Declinations, specifically the Ericsson and ABB resolution.  The scope of anti-bribery and anti-corruption enforcement outside of the US, looking at France, Brazil, and China. A growing number of countries are entering the sphere of FCPA enforcement actions in the US and elsewhere. Resources Hughes Hubbard & Reed website  Laura Perkins on LinkedIn  Kevin Abikoff on LinkedIn Tom Fox Instagram Facebook YouTube Twitter LinkedIn

This episode of All Things Investigations explores the recent EU Corporate Sustainability Due Diligence Directive that could transform compliance programs and corporate governance globally. Tom Fox and Nicolas Tollet analyze the Directive's provisions mandating human rights and environmental risk management across company value chains. Nicolas explains how the law builds on France's pioneering 2017 Duty of Care legislation and its impact on corporate accountability for both EU and non-EU multinationals. Nicolas Tollet is a Partner at Hughes Hubbard. He previously served as Vice President for Compliance at Technip, an oil and gas service firm. With over 20 years of experience in compliance and internal investigations, he has worked on significant cases like Alcatel, TSKJ, and Lava Jato. Nicolas has expertise in monitorships, having been involved in the first one imposed on a French company by the DOJ and the SEC. He helps companies worldwide with compliance programs, audits, and M&A due diligence.  You’ll hear Tom and Nicolas discuss: The new EU Directive on Corporate Sustainability Due Diligence will require companies above certain revenue thresholds to implement human rights and environmental compliance programs, not just for their operations but across their entire value chain. France has been at the forefront of such legislation with its 2017 Duty of Care law. The EU directive builds on this, with more expansive requirements and penalties of up to 5% of worldwide turnover for non-compliance. The directive explicitly links human rights risks to corruption risks, recognizing their interconnection. It has the potential to drive even broader risk coverage than typical anti-bribery programs. By mandating due diligence across the value chain, the directive will necessitate contract terms like audit rights as standard procedure. Financial institutions may also need to evaluate the human rights impacts of clients they fund. The directive allows each EU country to determine how to specifically transpose and enforce the law's obligations. This could lead to a complex web of overlapping inspection regimes applied to multinationals. Even companies not based in the EU will fall under the law if they meet certain revenue thresholds in Europe. Non-EU companies should tap French expertise since France is about 6 years ahead in implementing similar mandates. Required public sustainability reporting adds another layer reinforcing the need for concrete compliance actions.  While the US led historically on anti-corruption compliance, the EU is now at the vanguard of expanding into human rights, environment, and sustainability. France in particular has established itself as a leader in advancing corporate compliance expectations. KEY QUOTES: “There is a direct link within the directive between human rights compliance and anti-corruption compliance, which the compliance community in the world has been seeing for years now.” - Nicolas Tollet “So we shouldn't expect one member state to be reluctant to enforce the legislation. The EU will make sure that every member state issue and then enforce the legislation in each country.” - Nicolas Tollet “Fortunately, we are still linked in how we work in the business field, and we have to take both into account. So there is a certain pride indeed, because there is real expertise in France now on compliance, but it's mixed between the French and the American compliance community, I would say. So it's working together that we've managed to improve compliance.” - Nicolas Tollet Resources: Hughes Hubbard & Reed website  Nicolas Tollet on LinkedIn EU Directive on Corporate Sustainability Due Diligence: Navigating the New Landscape of Corporate Accountability

How can companies effectively remediate after uncovering misconduct? In this episode of All Things Investigations, Tom Fox discusses with Mike DeBernardis the lessons learned from the recent Albemarle FCPA enforcement action and settlement. They analyze the company's self-disclosure timeline, the credit received for holdbacks, and the overall cooperation and remediation efforts that led to a favorable NPA. Mike DeBernardis is a partner in Hughes Hubbard’s Washington office and a member of the firm’s Anti-Corruption and Internal Investigations and White Collar & Regulatory Defense practice groups. He assists clients with internal investigations relating to high-stakes matters, including corruption under the Foreign Corrupt Practices Act, procurement fraud, financial and accounting fraud, money laundering, and other ethics issues and violations of company policy.  You’ll hear Tom and Mike discuss: The DOJ deemed Albemarle's self-disclosure untimely, even though it was voluntary and unknown to the government. The 16-month delay from learning of allegations to disclosing crossed the line per updated standards. Companies should carefully evaluate timing when self-disclosing misconduct if they want to maximize credit. Even voluntary disclosures can be considered untimely under an evolving reasonableness standard. Albemarle discovered allegations in Vietnam in 2016, confirmed misconduct in early 2017, and then disclosed in January 2018 when FCPA Corporate Enforcement Policy permanence was still uncertain.  $780,000 in total bonuses were held back from employees directly involved, those with supervisory responsibility, and other relevant staff. Albemarle received a full 1:1 penalty offset. Contractual ability to withhold bonus payments is easier to execute than clawbacks of compensation already disbursed, especially across regions. Settlement dynamics were shifting during Albemarle's decision timeline, but current standards still applied for judging timeliness. Pandemic delays also won't change future judgments.   The egregiousness and duration of Albemarle's schemes across multiple countries involving high-level executives would typically warrant a DPA or plea deal. Their cooperation and remediation directly led to the NPA result. Albemarle thoroughly investigated, cooperated, remediated, and self-disclosed even though the misconduct was not yet government-known. This approach clearly benefited them.   Implementing data analytics was called out in the settlement documents specifically. Even basic initial steps were still recognized and rewarded by the DOJ. Resources Hughes Hubbard & Reed website  Mike DeBernardis on LinkedIn

How can companies adequately prepare for the DOJ's aggressive new deadlines for M&A disclosures? In this episode of All Things Investigations, Tom Fox discusses the implications of the DOJ's new M&A Safe Harbor policy with Mike Huneke. They explore best practices for meeting the 6-month and 1-year deadlines, how to approach pre-acquisition due diligence, and whether this policy will lead to more or fewer disclosures. Mike Huneke is a partner in Hughes Hubbard & Reed’s Washington office. He advises clients on the navigation and resolution of multi-jurisdictional criminal or Multilateral Development Bank (MDB) anti-corruption investigations. He also assists companies subject to post-resolution monitorships or other commitments and designs and executes risk-based strategies for due diligence on third parties. You’ll hear Tom and Mike discuss: The 6-month post-closing deadline to disclose is extremely quick for large, complex companies. Compliance teams need to get involved very early in the M&A process to spot potential issues adequately. Sellers must also prepare for more scrutiny from buyers under this policy. They should proactively assess compliance programs in their portfolio companies, anticipate buyer due diligence questions, and address any issues to maximize sale value. The policy's criminal liability focus means boards and senior execs must now approve disclosures. This may lead to more hesitation in disclosing, as companies lose the ability to "test run" disclosures.  Companies must apply an "anti-corruption mindset" to issues like sanctions and export controls now that those areas have potential criminal penalties. Cross-train compliance and trade professionals to instill this mindset. Pre-acquisition due diligence should identify the root causes of any issues so companies can prioritize remediation post-close. Have a detailed, documented integration plan ready. Managing investigations and remediation simultaneously with tight deadlines will be challenging. A strong tone from the top will be crucial for integration. It is unclear if other agencies like the SEC will follow the DOJ's approach. Disclosers may hesitate if issues span multiple regulators. Overall, the policy adds certainty around timelines, though meeting them will be difficult. It forces compliance to have a seat at the M&A table. KEY QUOTES “And so the more that things are criminal and the larger the penalties, the more you're going to have boards get involved, the more you're going to need very senior management to be involved. And that may result in just more hesitation to make a voluntary disclosure…” - Mike Huneke. “So sellers should be looking at this and anticipating that there will be more questions from buyers and more questions from buyers’ counsel.” - Mike Huneke. “So identifying the root cause is absolutely the key and then realistically you're not going to be able to integrate an entire company into your compliance program in one year. Make sure you have a plan that's well documented and based on the due diligence for prioritizing what's coming in first.” - Mike Huneke. Resources Hughes Hubbard & Reed website  Mike Huneke on LinkedIn

In this episode of All Things Investigations, host Tom Fox and Kevin Carroll discuss the alarming revelation that former President Trump allegedly shared sensitive information about nuclear submarines with an Australian civilian, as well as a peculiar court hearing involving a limited gag order on Trump. They explore the gravity of the information shared, its implications on national security, and the potential legal repercussions.  Kevin is a partner in the Washington, D.C., and New York offices of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practice groups. He also helps counsel businesses on CFIUS/FIRRMA, cyber security and data privacy, EAR/ITAR, FARA, FCPA, FISA, FMS, NISPOM, and OFAC compliance. You’ll hear Tom and Kevin discuss: President Trump allegedly discussed secrets about nuclear submarines with an Australian civilian, Anthony Pratt. Kevin emphasizes the seriousness of this revelation, highlighting the crucial role submarines play in national security, including preserving Taiwan's independence and intelligence collection. Strategic missile submarines (boomers) are the ultimate nuclear guarantee, capable of retaliatory strikes against adversaries, and their secrecy is paramount. Kevin is surprised that additional charges were not laid against Trump for willfully communicating classified information to an uncleared foreign national. The disclosure of classified information poses a risk to national security, as adversaries may adapt their tactics and enhance technology based on shared information.  There is no remedy once sensitive information is released; the damage caused may be irreversible. The intelligence relationship between the United States and Australia is one of the closest, with both countries part of the Five Eyes alliance. A limited gag order was imposed on President Trump after an unusual hearing related to a motion brought by Special Counsel Jack Smith. Kevin criticizes the defense lawyers' aggressive approach and disrespectful behavior toward the federal judge during the hearing. The judge's decision to impose a limited gag order is a necessary step to prevent potential harm to individuals targeted by Trump's remarks. The broader societal implications of such unchecked criticisms from a public figure like Trump, with a significant following, are emphasized. Judges may consider escalating fines as a deterrent to gain Trump's attention and prevent further damage and incitement of violence. Trump's potential strategy may be to use incarceration as a political narrative, portraying himself as a victim. Kevin believes fines would be a more effective deterrent and expresses hope that financial penalties would capture Trump's attention. Repeated violations of the gag order is a strategy Trump may use to attempt to poison the jury pool. Such efforts might have more impact in Florida and Georgia. Venue selection in high-profile cases is crucial to ensure a fair trial. Lawyers have the responsibility to weed out jurors with preconceived notions, regardless of the case's profile. However, in some cases, it's impossible to find a jury unaffected by public awareness. Resources Hughes Hubbard & Reed website Kevin Carroll on LinkedIn

In this episode of All Things Investigation, Tom Fox and guest Kevin Abikoff discuss the Department of Justice’s introduction of a CCO certification in the wake of FCPA violations. Kevin offers his unique perspective on this issue; their conversation also explores broader issues of corporate governance and the role of the Board of Directors. Kevin Abikoff is a Partner and Deputy Chair at Hughes Hubbard & Reed. He is a recognized authority in corporate governance and compliance.  You’ll hear Tom and Kevin discuss: Kevin questions the necessity of the CCO certification, suggesting it addresses a problem that doesn’t exist, given the absence of complaints from the Department of Justice about dishonesty during monitorships. A more practical approach, Kevin posits, is a certification 12 to 24 months after a monitorship ends to empower CCOs during periods of vulnerability truly. Measuring compliance effectiveness is subjective and may be void of vagueness in a legal context. In the broader realm of corporate governance, the board has a pivotal role in overseeing compliance. Parallels to the Caremark duty and Delaware law are drawn. Kevin raises concerns about the burden on CCOs to assess program effectiveness retrospectively, especially considering the dynamic nature of compliance programs over time. Boards should take responsibility for compliance certifications and should sign off on these certifications, mirroring similar practices in financial reporting. Innovation within compliance may be stymied if CCOs fear that enhancing a program might be used against them in the future, Kevin points out. KEY QUOTES: “I’ve just never heard, especially from the context of Chief Compliance Officer, that the DOJ feels like they’re being lied to. If that’s not the problem they’re trying to solve, I think the solution they have paved is, again, a solution in search of a problem that doesn’t exist…” – Kevin Abikoff “If you’re going to have a certification and you want to empower the chief compliance officer, have the certification twelve months, 24 months after the conclusion of the monitorship and have the CCO certify that they continue to believe that the policies, procedures, things that have been put in place, continue to be in place.” – Kevin Abikoff “Now what you fail to investigate can kill you.” – Kevin Abikoff Resources: Hughes Hubbard & Reed website  Kevin Abikoff on LinkedIn

In this episode of All Things Investigations, host Tom Fox and guest Mike Huneke explore a complex legal case involving Cognizant Technologies and former executives facing criminal charges for alleged bribery. The court's ruling in this case has far-reaching implications for privilege disputes, document production, and cooperation with the government.  Mike Huneke is a partner in the firm’s Washington office. Among other things, Mike advises clients on the navigation and resolution of multi-jurisdictional criminal or Multilateral Development Bank (MDB) anti-corruption investigations. He assists companies subject to post-resolution monitorships or other commitments, and designs and executes risk-based strategies for due diligence on third parties. You’ll hear Tom and Mike discuss: The Coburn and Schwartz Case is an ongoing document dispute that serves as a masterclass in federal criminal and civil procedure related to document production. The court categorizes documents into three categories, emphasizing their relevance to the criminal proceeding and repeatedly referencing Federal Rule of Criminal Procedure 17. The court addresses supporting documentation and investigative reports, considering waiver of privilege in relation to supporting evidence. It also highlights the need to defend the documents used in an investigation. Maintaining a wall between remedial activity and disclosures is crucial to prevent the remediation justification from surpassing disclosures.  It is important to pause and carefully consider an investigation. While quickness and focus are essential, thoroughness should not be sacrificed. Keeping stakeholders informed is key. Privilege protects certain communications from being disclosed. Internal investigations can prevent disclosure of harmful information. Rule 17 requires disclosure of relevant documents, but privileged documents are exempt. Relevance must be demonstrated. Counsel who cooperate with the government face challenges in confidentiality, client protection, and legal issues. Balancing the defense of the investigation and its documents adds to the complexity. The court discusses concerns raised by the chief legal officer regarding the duration and fees of the investigation. It addresses the use of discussions between the CLO and the investigative team as evidence. KEY QUOTES “Talking about partial waivers. What does that mean? It means, well, waiving a little bit of a discussion, but not going for the whole discussion in a way that may be disadvantageous to the other party.” - Mike Huneke “One common thread through all three categories, at least in the rulings from the magistrate judge or the recommended rulings from the magistrate judges to all three, was the importance of this being in a criminal proceeding. Time and again, the magistrate looks to Federal Rule of Criminal Procedure 17. And as that's articulated, at least in the Third Circuit and in the District Court of New Jersey, even if there is a waiver, that doesn't mean documents automatically have to be produced to the other party.” - Mike Huneke “I think compliance professionals can rest assured that this is not an instance that will be cited back to them where they have to reveal all the nuts and bolts of how the program was designed, what choices were made about the scope of the program and how it was implemented or not.” - Mike Huneke Resources Hughes Hubbard & Reed website  Mike Huneke on LinkedIn

In this episode of All Things Investigations, host Tom Fox delves deep into the significant enforcement action by the SEC against 3M in China with guest Mike DeBernardis. The action revolves around the provision of covert trips to Chinese government officials by 3M to secure business deals. These concealed itineraries raised eyebrows due to tell-tale signs like simultaneous scheduling of tourist activities with educational events and an absence of proper translation services. Mike DeBernardis is a partner in Hughes Hubbard’s Washington office and a member of the firm’s Anti-Corruption and Internal Investigations and White Collar & Regulatory Defense practice groups. He assists clients with internal investigations relating to high-stakes matters including corruption under the Foreign Corrupt Practices Act, procurement fraud, financial and accounting fraud, money laundering, and other ethics issues and violations of company policy.  You’ll hear Tom and Mike discuss: The SEC has recently released two pertinent documents, one of which revolves around the covert operations of 3M China. 3M China had set up a clandestine system to mask their dealings, notably by offering Chinese officials fabricated travel itineraries. These itineraries emphasized tourist activities over the actual educational events. Platforms like WeChat, categorized as ephemeral messaging, are prevalent in China's business landscape. However, their misuse can project a deficiency in compliance culture. While these platforms are efficient, they can blur the lines of official and casual communication. Compliance professionals are at the frontline of ensuring business legitimacy. They should actively verify the genuineness of business-related activities. Tools such as sign-up sheets and photographs can be instrumental in documenting attendance. The penalty levied on 3M was considerable. The rigorousness of the action was evident as detailed spreadsheets calculated the return on investment of bribes. 3M's own employees in China assisted in this calculation, simplifying the process for regulators.  An interesting aspect discussed was the opinion release regarding travel costs for foreign officials visiting adopted children's families. It brings to light the nuances of these expenses and how they can be misconstrued. Companies need to ensure they don't pay for personal expenses in these situations. The opinion release procedure stands as a beacon for companies seeking clarity, offering companies an avenue to gain insights from the DOJ. Such procedures guide businesses when treading on uncertain compliance grounds.  KEY QUOTES “I think looking at this from one lens, you could say, here are the things that maybe the compliance professionals could have done to really look at this more diligently with a closer lens.” - Mike DeBernardis “We often advise clients, when they're approving donations and sponsorships from a compliance perspective, [to get] some sort of documentation to prove that the donation [they] have approved was actually given in the manner [they] thought it was going to be.” - Mike DeBernardis “I think trade companies in particular should be looking at ephemeral messaging policies, what they have in place, and how to manage this issue. This issue is extremely difficult because in certain parts of the world, ephemeral messaging, however you want to define that, is used as the main way to do business, right? So there is a business justification, a legitimate business justification for using it.” - Mike DeBernardis Resources Hughes Hubbard & Reed website  Mike DeBernardis on LinkedIn

Welcome to the Hughes Hubbard & Reed Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. This week, we will feature five lawyers from HHR to introduce the firm’s always popular and annual FCPA and Anti-Bribery Alert. In this third podcast of the 5-part series, host Tom Fox is joined by Dan McLaughlin on the key lessons learned in anti-corruption compliance and from FCPA enforcement in 2024. In this episode, they explore the recurring lessons learned regarding third-party agents, the importance of due diligence, and the implications of the DOJ’s new policies. The conversation also highlights the significance of understanding ultimate beneficial ownership and the resurgence of gifts and entertainment as compliance risks. The discussion emphasizes the need for robust compliance programs and proactive risk management strategies. Key highlights: The Continuing Risks from Third Parties M&A Safe Harbor The Ongoing Challenges from Gifts, Travel and Entertainment Resources: Hughes Hubbard & Reed website 2024 Fall FCPA and Anti-Bribery Alert Dan McLaughlin

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

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. In this podcast, I joined by HughesHubbardReed partners Kenyen Martin and Kevin Carroll as we continue to review the various indictments against former President Trump. In this episode we look at the state court Indictment from Georgia.  The use of Racketeer Influenced and Corrupt Organizations (RICO) charges in the Georgia indictment against former President Trump is seen as a bold move by legal experts. The indictment includes a wide range of individuals at different levels of government, raising concerns about its sweeping scope and potential consequences. The conversation between Tom, Kenyan, and Kevin delves into the challenges and complexities of the election fraud trial, including the large number of defendants and potential disruptions in the proceedings. The podcast also discusses the difficulties faced by accounting prosecutors in bringing a case against the President and the importance of judicial restraint in maintaining order and fairness in the legal system. Overall, the podcast provides insights into the significance of the RICO charges, the concerns surrounding the Georgia indictment, and the challenges faced in prosecuting high-ranking officials. Key Highlights ·      RICO Charges in Trump Indictment ·      Georgia Indictment: Bold and Daring Move ·      Challenges and Complexity of the Election Fraud Trial ·      Challenges in Prosecuting the President ·      Judicial Restraint and Building a Record in the Jan6 Indictment in DC Resources Hughes Hubbard & Reed website Kenyen Brown bio Kevin Carroll bio Anti-Corruption and Internal Investigations Practice Group

In this episode of All Things Investigations, host Tom Fox discusses the legal intricacies surrounding the Donald Trump indictments with legal experts Kenyen Brown and Kevin Carroll. Tearing apart the indictment against the former President, the conversation illuminates the reality of a country grappling with the unprecedented indictment of its former Commander-in-Chief. They dive deep into the evidence, the potential repercussions, and the broader implications for the legal profession and democracy itself. Kevin Carroll and Kenyen Brown are partners at Hughes Hubbard & Reed. Kevin is a partner in the Washington, D.C. and New York offices of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practice groups. Former U.S. Attorney Kenyen Brown is a partner in the Washington, D.C. office of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practices. You’ll hear Tom, Kenyen and Kevin discuss: The indictment against Donald Trump centers around "prolific lies" used to defraud the United States citizens and election officials, aiming to overturn the 2020 election results. This has legal implications far beyond insurrection. The evidence collected against Trump is expansive, including public statements, internal campaign emails, attorney-client privilege documents, voicemails, and audio recordings. There's potential for more evidence that can prove the charges brought against Trump, as the indictment itself was written in plain English, suggesting transparency and inclusivity for all concerned citizens. The indictments were carefully formulated to avoid charges of sedition or insurrection, focusing instead on a set of charges that come with very serious sentences. Some of the unindicted conspirators may potentially flip on Trump and provide crucial testimony against the former president. However, the roles of distinguished members of the legal profession in the alleged coup d'etat raise concerns about ethics training and professional discipline at the bar. The likely trial date for this case is expected to be around six to ten months in the future, depending on the course of pretrial motion practice and the scope of the issues being relitigated. The upcoming trial could potentially be the most important in American history, hence all counsel should be given adequate time to prepare. Kevin explains that the oath to the Constitution, not to the Commander-in-Chief, holds deep importance for him and his peers. This oath suggests that the co-equal branches of the government, including the federal judiciary and Congress, deserve equal loyalty. The troubling presence of veterans and a small number of active-duty personnel at the January 6 riot, was deeply disappointing to Kevin.  Kenyen says, as a prosecutor, it is a great honor to represent the United States of America. He emphasizes the weight of the responsibility and the seriousness with which he took his duties of candor and good stewardship of information. The fact that the National Guard was not deployed to aid the Capitol police during the riot, given that only the president can order their deployment in the District of Columbia, suggests that this decision was part of an attempt to pressure Congress and Vice President Mike Pence. President Trump may find it difficult to convince the public of the legitimacy of his actions. Resources Hughes Hubbard & Reed website Kevin Carroll on LinkedIn Kenyen Brown on LinkedIn

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 Carroll and Kenyen Brown are partners at Hughes Hubbard & Reed. Kevin is a partner in the Washington, D.C. and New York offices of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practice groups. Former U.S. Attorney Kenyen Brown is a partner in the Washington, D.C. office of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practices. 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.  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 "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 Resources Hughes Hubbard & Reed website Kein Carroll on LinkedIn Kenyen Brown on LinkedIn

Mike Huneke and Jan Dunin-Wasowicz join Tom Fox on this episode of All Things Investigation, to shed light on key ideas and challenges faced by companies and compliance professionals in the evolving landscape of trade sanctions and anti corruption compliance. They explore the shift from traditional know your customer (KYC) practices to a more comprehensive anti-corruption mindset, the impact of sanctions on various sectors in Europe as well as the convergence of anti-evasion practices. Focusing on the recent emphasis on trade sanctions and their impact on global business, Mike and Jan offer valuable insights and practical guidance for companies navigating these complex regulatory landscapes. Mike Huneke and Jan Dunin-Wasowicz are partners at Hughes Hubbard and Reed. They are both anti-corruption lawyers with a passion for bridging the gap between ABC and trade sanctions compliance. Mike and Jan provide valuable expertise to companies seeking to align their risk management strategies with the evolving regulatory landscape. You’ll hear Tom, Mike and Jan discuss: The impact of the Russian invasion of Ukraine and the subsequent trade sanctions imposed by the US and Europe. Companies need to move beyond traditional KYC analysis and adopt an anti-corruption mindset when dealing with trade sanctions compliance. Mike emphasizes that this shift requires companies to proactively identify and address high-risk countries, red flags, and evasion techniques. The challenges posed by sophisticated evasion schemes and the importance of adopting a holistic approach that combines the expertise of anticorruption and export controls teams. A new geography of sanctions risks has emerged, with companies having to navigate potential risks not only directly linked to Russia but also arising from the global ripple effects. It’s therefore important to incorporate a dynamic and flexible framework that can adapt to changing geopolitical dynamics and future risks beyond the current focus on Russia. Jan points out that with the imposition of Russia sanctions, entire segments of the European economy are affected by controls and measures. This extends beyond financial institutions and requires operators in different sectors to learn about and navigate sanctions compliance, leading to a steep learning curve. In-house compliance departments need to address trade sanctions risks, with a focus on collaboration between anti-corruption and export controls teams to identify and address the highest risks of evasion. The convergence of anti-corruption and trade sanctions compliance: The focus is on combating evasion techniques, such as the use of third parties and assessing risks to prevent bribery and sanctions violations. Compliance professionals and companies face increasing pressure and find themselves in complex situations. The goal is to develop frameworks and methods that help professionals navigate and operate in a world that is becoming more complicated by the day. KEY QUOTES: "KYC is dead, and you have to apply an anti-corruption mindset to trade sanctions compliance." - Mike Huneke "If those two teams work together, I think you can identify very defensible and well-documented ways to identify what are the highest risks of evasion and then taking that skepticism and maybe paranoia that we develop in the anticorruption space and applying it to those select transactions." - Mike Huneke "Two-thirds of the world population live in countries that haven't imposed sanctions on Russia or simply don't really care for the sanctions in Russia." - Jan Dunin-Wasowicz "The goal here, really, in this exercise is to formulate a framework, formulate a method to look at this problem, to make the life of an in-house lawyer compliance professional a little easier." - Jan Dunin-Wasowicz  Resources: Hughes Hubbard & Reed website Mike Huneke on LinkedIn Jan Dunin-Wasowicz on LinkedIn

Welcome to the award-winning podcast All Things Investigation. Join Tom Fox on All Things Investigation, where he is joined by Kenyen Brown and Kevin Carroll, partners at Hughes Hubbard Reed, as they discuss the recent Indictment of the former President. Kevin Carroll and Kenyen Brown are partners at Hughes Hubbard & Reed. Kevin is a partner in the Washington, D.C. and New York offices of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practice groups. Former U.S. Attorney Kenyen Brown is a partner in the Washington, D.C. office of Hughes Hubbard & Reed in the White Collar & Regulatory Defense and Anti-Corruption & Internal Investigations practices. Brown described the indictment as “mind-boggling in its specificness,” providing strong evidence of guilt. The charges include mishandling classified information, with a strong focus on the Espionage Act. Further, the hosts discuss the severity of the charges, sensitive material, and the potential penalty the former president could face, which could mean up to 20 years imprisonment and a $250,000 fine for each count! You want to attend the discussion on the attorney-client privilege and the possibility of Judge Cannon recusing herself from the trial. You will learn much about this unprecedented Indictment with the hosts’ legal expertise. Key Highlights: ·      Analyzing an Espionage Act Indictment ·      Charges for mishandling classified information ·       Piercing Attorney-Client Privilege in Florida Courts ·      Potential penalties for charges against former president ·      Judicial Impartiality and Independence ·      Federal Trial Process & Political Implications  Notable Quotes: “All this indictment is mind-boggling in its specificness. I’ve never seen this type of indictment with this much detail. First, that indicates to me they’ve got the goods.” “And repeatedly, the National Archives and then the Justice Department through the FBI asked for the documents to be returned, and not only were they not returned, but it appears that there was a conspiracy to obstruct justice to keep them from being returned.” “Only a small number of people, such as the President of the United States, chairman of the Joint Chiefs, need to have that. These are the absolute crown jewels of the intelligence and defense communities deliberately mishandled.” “The attorney’s testimony can be admitted.” Resources Hughes Hubbard & Reed website Kenyen Brown bio Kevin Carroll bio

In this award-winning All Things Investigations episode, Tom Fox hosts Benjamin Britz to unpack two high-profile wire fraud cases reshaping how fraud convictions are viewed. Their conversation explores the Cuomo administration cases – Percoco and Ciminelli – providing in-depth analysis of the unanimous Supreme Court decisions and highlighting their broader implications on applying the wire fraud statute. Ben Britz is a partner at Hughes Hubbard & Reed and an expert in the legal complexities regarding financial fraud. His analysis helps shape a clearer understanding of legal precedents, providing invaluable context to legal practitioners and interested observers. You’ll hear Tom and Ben discuss: Ben recently wrote a “client alert” article, Hanging by a Thread: Unanimous Supreme Court Snips Back Two Wire Fraud Convictions. The article discusses two high-profile wire fraud cases related to the Cuomo administration in New York, the Percoco and Ciminelli cases. These cases examine the legality of influence exerted in government and the implications of bid rigging. In the Percoco case, Joseph Percoco, a senior advisor to Governor Cuomo from 2011 to 2018, was charged with honest services fraud after he was paid $35,000 to lobby an arm of the New York state government on a labor dispute related to a real estate holding. The case raises questions about the legality of such actions when the individual is technically not in government service. The Ciminelli case involves bid rigging, where Ciminelli and a third party manipulated the qualifications for a project’s bidding process so that only Ciminelli’s company could win. The case raises questions about the “right to control” theory and whether withholding information influencing decision-making amounts to fraud. The Supreme Court has demonstrated a trend of a strict interpretation of wire fraud statutes, often reigning in attempts to expand the application of these laws. Tom and Ben discuss two Supreme Court decisions that pushed back on the expansion of wire fraud statutes, emphasizing a focus on the statutory language. The Department of Justice’s positions in the Percoco and Ciminelli cases were unusual, as they only partially defended the charges. The DOJ admitted that the right-to-control theory was misapplied in the Ciminelli case and agreed that the jury instructions in the Percoco case were based on outdated law. The Supreme Court rulings in these cases put a greater onus on prosecutors to charge cases correctly according to the specific wording of the statute. This includes ensuring the facts align with the charge and not pursuing novel interpretations of the wire fraud statute. The ramifications of these rulings may impact future cases and how prosecutors and defense attorneys approach wire fraud charges. Understanding where the legal boundary lies is crucial, especially for those engaged in political activities, lobbying, and public bidding processes. KEY QUOTES: “But I think it’s also these are two weird cases in that in both of them, the DOJ takes a very odd position where it only sort of half defends its case.” – Benjamin Britz “The Court is getting fairly tired of it, and they want these statutes to be read and interpreted as they’re written and charged in that way.” – Benjamin Britz “Isn’t it possible that someone can be not in government but still have enough control over what the government is doing that bribing them is illegal?” – Benjamin Britz Resources: Hughes Hubbard & Reed website Benjamin Britz on LinkedIn Hanging by a Thread

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)

Ethical misconduct can destroy a company's reputation, result in fines and legal action, and erode trust with stakeholders. However, building an ethical culture is not easy, and compliance officers face many challenges in doing so. Ethical culture is not just about having a set of guidelines or policies in place, but rather, it's about employees having strong values and principles that guide their decisions, even when no one is looking. In this episode of All Things Investigations, compliance expert Laura Paredes joins hosts Tom Fox and Mike Bernadis to discuss what ethical culture means, how to achieve it, and signs that a company does or does not have an ethical culture. Laura Paredes is the Compliance Director for the Americas at Ingram Micro, a Fortune 100 company and global technology distributor. She is a compliance expert with over 15 years of experience in the field, focusing on anti-corruption, anti-bribery, and antitrust compliance. Prior to her current role, Laura worked as a compliance attorney and auditor for leading multinational corporations. She has a law degree from Universidad de Buenos Aires and an LLM in International Business and Economic Law from Georgetown University. You’ll hear Tom, Mike and Laura discuss: An ethical culture is about employees having strong values and principles that guide their decisions, even when no one is looking. An ethical culture is part of a company's DNA and should allow employees to make the right decision, even if the rule is not written anywhere. Signs that a company has an ethical culture include: Positive peer pressure, where employees feel free to speak up and raise concerns without fear of retaliation. Leadership plays a crucial role in creating and maintaining an ethical culture by communicating the values of the company and reinforcing them through middle management. Transparency and an open-door policy. Signs that a company does not have an ethical culture include employees being afraid to speak up, wrongdoing being allowed, and lack of accountability. An ethical culture is led by committed leadership and requires institutional justice and fairness. Establishing policies and procedures that are relevant and easy to understand is key, along with constant training and communication to employees. Recognizing and rewarding good conduct can have a positive effect on the culture. It's important to have a plan for building an ethical culture and to have leadership and the Board of Directors on board with it. Building alliances and working with other departments, such as audit and finance, can be effective in promoting compliance. KEY QUOTES: "An ethical culture is about employees having strong values, strong principles that they can apply when they're going to make a business decision. It's something that is part of the DNA of the company, and it's something that will allow them to make the right decision even if the rule is not written anywhere." - Laura Paredes "When employees are not afraid to speak up, and they will openly bring concerns up to their managers or to a compliance officer or legal. They will feel free to ask questions they will not feel ashamed of... There is transparency and there is an open door policy and people feel free to speak up without fear of retaliation, that's a good sign." - Laura Paredes "If you can work with an audit, if you can work with finance and share the same tools that they're using to implement the compliance program, to communicate, to create a culture of compliance, then maybe you can reach more people and you can be more effective." - Laura Paredes Resources: Hughes Hubbard & Reed website Laura Paredes on LinkedIn Ingram Micro

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

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast, All Things Investigation. This week, we will feature five lawyers from HHR to introduce the firm’s always popular and annual FCPA and Anti-Bribery Alert. In this second podcast of the 5-part series, host Tom Fox is joined by Jiaxing Hao on the significance and enforcement actions of Multilateral Development Banks (MDBs) like the World Bank and Inter-American Development Banks in combating corruption. They examine key trends from 2024, including a renewed focus on complex corruption cases. Jiaxing emphasizes the importance of compliance, particularly in accurately documenting and reporting all transactions, as MDBs consider even internships, employment contracts, and additional personnel as potential bribery risks. The conversation highlights the MDBs’ lower burden of proof, making it critical for compliance professionals to be vigilant in their anti-corruption efforts. Key highlights: Understanding Multilateral Development Banks Key Trends in MDB Enforcement Actions Compliance Lessons for Corporations Fraudulent Practices in Bid Documents Burden of Proof in MDB Investigations Resources: Hughes Hubbard & Reed website 2024 Fall FCPA and Anti-Bribery Alert Jiaxing Hao

Can Congress investigate a local prosecutor’s ongoing investigation and prosecution? This is the question that has been sparked by the purported potential congressional investigation of Manhattan District Attorney Alvin Bragg. In this episode of All Things Investigations, hosted by Tom Fox, guests Kevin Carroll and Kenyen Brown share their thoughts on the unprecedented matter and discuss the potential constitutional and legal issues that may arise. Kevin Carroll and Kenyen Brown are partners at Hughes Hubbard & Reed. Kevin is a professor, and former Assistant Attorney General for the U.S. Department of Justice. He has also served as a senior counsel to the House Homeland Security Committee. Kenyen is a former federal prosecutor and currently serves as the President of the National Bar Association. You’ll hear Tom, Kenyen and Kevin discuss: Congress has never before tried to use its subpoena power or investigative powers to interfere with an ongoing investigation and prosecution by a state or local prosecutor.  There are many potential problems with congressional subpoenas of an ongoing criminal investigation and prosecution by a state or local prosecutor. False accusations, grand jury confidentiality, and potentially ruining a meritorious criminal investigation are just a few examples. The congressional committee's request for grand jury material is unlikely to be successful and would be very unpopular due to the privacy of individuals and the sacrosanct nature of the grand jury. Members of Congress weighing in on local prosecutions could unduly destroy the separation between the different branches of government and the respective functions of the executive and judicial branches. This could also be a recipe for disaster in terms of creating political investigations that are subject to the whims of different constituencies. Prosecutors' offices regularly receive false allegations about prominent people, especially politicians, and potential investigations should remain within the confidences of that office or committee. There is potential for people to be slimed by the revelation under oath of false accusations. The Manhattan DA's office is a first-class operation, staffed by some of the brightest legal minds in the country. They have responded appropriately to the congressional committee's request by citing relevant law and their area of authority. Public theater is likely driving much of the debate around congressional oversight of the Manhattan DA's investigation. The Republicans may attempt to use this issue to score political points with their base, even though the legal basis for such oversight is questionable at best. Alvin Bragg, the Manhattan DA, is acting properly by refusing to comply with any congressional subpoenas. He should continue to resist any attempts by Congress to interfere with his ongoing investigations. There may be interesting news in the coming weeks and months regarding this issue, and it is worth keeping an eye on as it unfolds. KEY QUOTES "Congress has never before tried to use its subpoena power or investigative powers generally to get in the weeds of an ongoing investigation and now prosecution by a state or local prosecutor." - Kevin Carroll “Why should Congress decide how a local prosecutor spends his resources or what the policy is on a local level? I just think that excuse is paper thin.” - Kenyen Brown Resources: Hughes Hubbard & Reed website Kein Carroll on LinkedIn Kenyen Brown on LinkedIn

In this episode of All Things Investigations, we're tackling a rule that every business executive and compliance officer needs to be aware of. It's the IT Supply Chain Security Rule, and it authorizes the US Department of Commerce to review transactions involving property or services subject to US jurisdiction that come from foreign countries deemed as foreign adversaries, such as China and Russia. Joining host Tom Fox are Tyler Grove and John Hannon, who co-wrote a paper on this rule. They discuss the implications of the rule, its impact on trade with China and other countries, and what businesses need to know to stay compliant. Tyler Grove is a partner at Hughes, Hubbard and Reed, specializing in sanctions, export controls, and foreign direct investment review. John Hannon is an associate at the same firm and works with Tyler in the International Trade Group, focusing on export controls and sanctions, as well as commercial litigation. Some of the ideas discussed in this episode include: The IT Supply Chain Security Rule gives the US Department of Commerce powers similar to those of CFIUS to review transactions and require mitigating action up to and including unwinding certain transactions if national security concerns are identified. The rule applies to a broad range of products, including internet-connected software, data hosting and cloud services, networking equipment, internet-connected cameras, and potentially drones. While it's still early in the enforcement process, there could be indirect impacts on trade with China and other countries due to third-party partners refusing to engage in transactions for reputational reasons or otherwise. Commerce has requested approximately $36 million to hire 114 positions dedicated to ICTS administration and enforcement, indicating that there will be more reviews and enforcement in the near future. The ICTS rule targets companies that are headquartered or sending products from foreign adversary jurisdictions and aims to prevent these companies from acquiring US technology that could be used for national security purposes. Companies that fall within the scope of the ICTS rule should conduct a risk assessment to identify any potential national security concerns that Commerce may have and form a response plan for internal stakeholders in the event of an enforcement matter. KEY QUOTES "There are some significant differences between the ICTS and CFIUS regimes. First, CFIUS regime allows at-risk companies to proactively seek review and clear their transactions. Although there is a proposed licensing procedure for this ICTS regime, it has not become effective yet." - John Hannon  "I think the clientele and types of target companies may dictate the regulatory attitude." - John Hannon "I think at this point we really are advising companies that are at risk to try to be proactive, think about ways that they could get ahead of potential ICTS enforcement action. Probably the very first place to start there is to conduct a risk assessment where a company would look at their products at the supply chain." - Tyler Grove "As we've mentioned a couple of times already, this rule is very much in the early stages right now, and so it's almost certain that additional guidance will be forthcoming in the near future.” - Tyler Grove Resources: Hughes Hubbard & Reed website Tyler Grove on LinkedIn John Hannon on LinkedIn

In this episode of All Things Investigations, host Tom Fox talks with Benjamin Britz, partner at Hughes Hubbard, about the recent Delaware Court of Chancery decision regarding the NRA McDonald's case. Ben explains the court system in Delaware and the background facts of the case involving sexual misconduct and harassment allegations against McDonald's CEO and his Chief People Officer, David Fairhurst. The court's decision focuses on whether Fairhurst had an oversight duty as an officer, and Ben and Tom discuss the legal rationale for the duty of oversight and the duty of information and compliance information systems.  Benjamin Britz is a partner at the law firm Hughes Hubbard and has extensive experience in internal investigations, securities litigation, and white-collar defense. He graduated from Columbia Law School in 2004 and went on to clerk for Judge Jim Carr in the Northern District of Ohio before joining Hughes Hubbard. He has remained with the firm ever since.  You’ll hear Tom and Ben discuss: The Delaware Court of Chancery is a specialized forum for disputes regarding the operations and governance of Delaware corporations, and it has very knowledgeable judges who are confirmed by the Delaware State Senate. The duty of oversight applies to corporate officers and is based on the same fiduciary duties as directors. The duty of oversight includes the duty of information and compliance information systems, as well as the duty of red flag, where officers need to take action if they become aware of misconduct. The court's decision in this case was based on the duty of red flag and a finding of bad faith due to inaction on the part of Fairhurst, who ignored red flags and was allegedly engaged in misconduct himself. The court's opinion was comprehensive, possibly to ensure a basis for upholding the decision on appeal, and the duty of oversight applies to the chief compliance officer as well. The court's decision in the case discussed does not extend beyond corporate officers. The decision does, however, elevate the role of the chief compliance officer to the level of the CEO or CFO in terms of the breadth of their duties. This decision serves as a reminder that courts take the position of the compliance officer very seriously, regardless of their formal designation within the company. While the case may not be appealed, it is important because it sketches out areas where basic tenets of corporate governance law are still undeveloped. The court's breach of loyalty claim against Fairhurst for committing sexual harassment could open up a can of worms and expand the traditional duty of loyalty into areas where it hasn't been before. The duty of loyalty claim for engaging in affairs that are against the code of conduct or other policies and procedures could be a backdoor violation of honest services. KEY QUOTES "What's called a red flag duty, if you become aware of misconduct that you have to do something about it." - Ben Britz "If you are the CCO your duties are very broad, because this whole thing is basically your job. Because of that, it does very much put the compliance officer on the level with the CEO or the CFO..." - Ben Britz "The expectations from the board certainly are going to be that whoever holds that position is executing it to the absolute fullest." - Ben Britz Resources: Hughes Hubbard & Reed website Ben Britz on LinkedIn

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. 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 partner at Hughes Hubbard & Reed, 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 on how to position themselves to avoid prosecution or mitigate consequences. The new policy offers up to a 75% discount for self-reporting, which is 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 that is going from the company to the department. KEY QUOTES: “One of the major [changes to the Corporate Enforcement Policy is] increasing the maximum potential fine reduction that a company can get for self-reporting. It's a further effort by the Department to incentivize self-reporting.” - Laura Perkins “I think the more that the government is able to show examples of the application of this increased benefit for exceptionally cooperating recidivists and ABB is actually a great example of that.” - Mike Huneke Resources: Hughes Hubbard & Reed website Laura Perkins on LinkedIn Mike Huneke on LinkedIn

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. John Wood, Investigative Counsel on the January 6 Committee, joins Tom and Mike DeBernadis on this week’s show. They delve into the inner workings of the January 6 Committee. John Wood is a former Hughes Hubbard partner; he serves as Investigative Counsel on the January 6 Committee. He is well known for his work with the Bush administration, where he worked at the Justice Department, White House and Department of Homeland Security. Key ideas you’ll hear in this episode: The January 6th attack on the Capitol investigation was conducted by five teams, with a bipartisan committee and one staff. Documents were crucial to the investigation and legal strategies were used to obtain them. The National Archives produced a significant number of documents, while electronic documents were quickly obtained from witnesses through subpoenas, text messages and email accounts. Some witnesses were less compliant or refused to cooperate and the House held some in criminal contempt. The Fifth Amendment was respected, but the investigation was frustrated by some who claimed it as a defense.  The public hearing was divided into topical sections and used video and live and deposition testimony to create a compelling story for the American people.  John questioned Judge Ludic, a former clerk and conservative expert witness. The hearing was more structured and scripted, but with surprises and led by members of Congress and senior investigative counsel. The report was intentionally detailed with specific citations to documents and transcripts for backup, time-consuming to write, but important to have as buttoned up as possible to prevent denial by the former President or his allies.  The hope for the legacy of the committee is to prevent something like January 6 from happening again, and to put partisanship and politics aside to work for the country.  John recommends a book, "Scavenger Hunt" by Chad Boudreaux, as a fun and informative read. KEY QUOTES: “In terms of the [January 6 Committee] investigation, while obviously there were differences of opinion on how to proceed with certain things with strategy or tactics to use, it was never based on political or party affiliation.” - John Wood  Resources Hughes Hubbard & Reed website John Wood on LinkedIn Scavenger Hunt - Chad Boudreaux

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

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 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. Kevin Abikoff is partner and 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 with an emphasis on the representation of entities in anti-corruption (including FCPA) matters. Key ideas we discuss in this podcast: The DOJ has instituted a new requirement for CCOs to certify that their programs are "reasonably designed" to detect and prevent violations of the law. The potential for liability as a CCO. How this new requirement may pressure CCOs to go beyond their usual duties in order to make the certification. Corporate governance as a remediation of the CCO certification requirement. The board of directors should be responsible for overseeing corporate compliance programs, rather than just nominally doing so. The DOJ listens to commentators and evolves in their own thinking. KEY QUOTE “Part of the narrative [for CCO certification] is that it gives CCOs a seat at the table. If you don’t have a seat at the table after you've gone through a FCPA enforcement action, I think there are bigger problems.” - Kevin Abikoff Resources Hughes Hubbard & Reed website  Kevin Abikoff on LinkedIn

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 Kevin Carroll of the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group highlight some of the key legal issues in white-collar investigations, locally and internationally. Kevin Carroll is a partner in the firm’s Washington and New York offices, in its white collar and investigations practices. He represents businesses, senior executives, and government officials in congressional and criminal investigations, conducts internal investigations, and litigates national security claims. Key ideas we discuss in this podcast: The US federal government has used various methods of collecting information since the 19th century. As time went on, these capabilities were found to be abused and used unconstitutionally against US citizens. FISA, or the Foreign Intelligence Surveillance Act of 1978, was created to provide the federal government with rules for gathering information without infringing on citizens' Fourth Amendment rights. Attorney Durham’s investigations into corruption and the failures to successfully prosecute those involved. The average federal magistrate has substantial experience with the criminal justice system.  The FBI should only allow their sworn academy-trained agents or, when appropriate, partner with CIA case officers who are graduates of the field tradecraft course, to conduct counterintelligence operations investigations. The difference between signals intelligence and human intelligence. The importance of very robust anti-corruption programs when conducting business and humanitarian efforts in Ukraine. Resources Hughes Hubbard & Reed website  Kevin Carroll on LinkedIn Durham Russia Probe Acquittals Show Need For FISA Reform

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

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 Philip Giordano of the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group highlight some of the key legal issues in white-collar investigations, locally and internationally. Phillip Giordano is a partner in the Hughes Hubbard Antitrust Group, focusing on a variety of national and international antitrust matters, including complex criminal antitrust investigations and litigation, civil non-merger government investigations, and mergers and acquisitions. Philip also personally practices in the area of criminal defense. Key areas we discuss in this podcast: LiveNation and Ticketmaster have been on the DOJ’s radar for quite some time. Defining vertical and horizontal integration. Why the DOJ was concerned about the primary ticketing market. Ticketmaster has been criticized for raising ticket prices after the website crashed due to high demand. There was an outcry because before it crashed, Ticketmaster's algorithms raised ticket prices to four or five figures. Analyzing a concentrated market. Surge pricing in one market can help the market function competitively in another market. Resources Hughes Hubbard & Reed website  Philip Giordano on LinkedIn

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group’s podcast All Things Investigation. This week, we will feature five lawyers from HHR to introduce the firm’s always popular and annual FCPA and Anti-Bribery Alert. In this first podcast of the 5-part series, host Tom Fox is joined Mike DeBernardis to introduce the Alert and some of the key themes and highlights from the FCPA and anti-bribery in 2024.  In the inaugural episode celebrating the Hughes Hubbard & Reed FALL 2024 FCPA and Anti-Bribery Alert, Tom is joined by Mike DeBernardis. They delve into the significance of Hughes Hubbard & Reed being the first major firm to release their FCPA alert each year and discuss the creative introduction themed around 1999 movies, including a quote from 'The Matrix.' The alert is segmented into four comprehensive chapters covering analysis, policy developments, corporate resolutions, international focus, and updates from multilateral development banks. Key trends such as the treatment of past misconduct and encouraging whistleblowing are highlighted, along with an ongoing issue of gifts and hospitality in corporate resolutions. For more detailed insights, the audience is encouraged to access the report on the firm's website. Key Highlights ·      Overview of the FCPA and Anti-Bribery Alert ·      The Matrix Quote and Its Relevance ·      Detailed Breakdown of the 2024 Alert ·      Key Highlights and Trends ·      Focus on Gifts and Hospitality Resources: Hughes Hubbard & Reed website  2024 Fall FCPA and Anti-Bribery Alert Mike DeBernardis

Mike Huneke is a partner in the firm’s Washington office. Among other things, Mike advises clients on navigating and resolving multi-jurisdictional criminal or Multilateral Development Bank (MDB) anti-corruption investigations. He assists companies subject to post-resolution monitorships or other commitments and designs and executes risk-based strategies for due diligence on third parties. Key areas we discuss in this podcast: The commentary on mergers in the FCPA space is largely around post-acquisition. The reason for pre-acquisition due diligence. Questions a potential acquirer should ask before buying a business. Even if they don't have a program for some voluntary due diligence, sellers with nothing to hide shouldn’t be scared of buyers asking questions. In advance of a sale, ensure you have clear records of tax considerations and that they are ready to be shared. The basic mandates from the DOJ around post-closing.   Resources Hughes Hubbard & Reed website  Mike Huneke Anti-Corruption Due Diligence Can Help Buyers, Sellers, and Their Advisers to Facilitate Acquisitions

Welcome to the Hughes Hubbard Anti-Corruption and Internal Investigations Practice Group’s Podcast, All Things Investigations. In this podcast, host Tom Fox, returning guest Kevin Carroll and Kenyen Brown of the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group highlight some of the key legal issues in white-collar investigations, locally and internationally. Kevin Carroll is a partner in the firm’s Washington and New York offices, in its white collar and investigations practices. He represents businesses, senior executives, and government officials in congressional and criminal investigations, conducts internal investigations, and litigates national security claims. Kenyen Brown, a partner in the firm’s Washington office, focuses primarily on white-collar criminal litigation and compliance counseling, including matters involving the Foreign Corrupt Practices Act (FCPA) and internal and government investigations. With his extensive white-collar litigation experience and refined judgment, Kenyen served as U.S. Attorney for the Southern District of Alabama, to which President Barack Obama appointed him. Key areas we explore on this podcast are: Why the Jan 6 Committee report would not be a complete investigation unless they ask former Vice President Pence about what he observed that day. Because of the constitution of the Committee itself, there has been an absence of partisan rancor, which allowed them to tell a narrative from an investigative standpoint. The American people found this very valuable. The influence of technology in public hearings and investigations.  The significance of the Jan 6 Committee report. People may get down into the semantics of what the President knew and argue the policy behind whether or not it was an insurrection, but at the end of the day, people were fearful for their lives.  The clarification of the Electoral Count Act.  Resources Hughes Hubbard & Reed website  Kevin Carroll on LinkedIn Kenyen Brown on LinkedIn

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

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.