All Things Investigations

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast, All Things Investigation. In this podcast, host Tom Fox is joined by HHR partner Mike DeBernardis on the considerations of trying an FCPA case. Tom and Mike deeply dive into the complexities of preparing for and trying an FCPA case. It includes negotiating with corporate and individual clients involved in criminal cases. It is often easier to convince corporate clients to cooperate with government entities and engage in negotiation processes. Conversely, individual clients, driven by strong convictions of their innocence, can be resistant unless negotiation results in a non-prosecution decision. We highlight the challenging conversations defense counsels must have with individual clients regarding realistic outcomes, including discussing the strengths of the prosecution's case and potential plea deals. Establishing early discussions about acceptable outcomes and strategies is vital to navigating these difficult negotiations. Key highlights: Corporate vs. Individual Clients Challenges in Defense Counsel Discussing Plea Deals Importance of Early Negotiation Resources: Mike DeBernardis Hughes Hubbard & Reed Website

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast, All Things Investigation. In this podcast, host Tom Fox is joined by Jeremy Paner and Diego Durán de la Vega to discuss the designation of cartels and other actors in Mexico as foreign terrorist organizations and what this means for US businesses. This episode considers the significant compliance regulation changes affecting US domestic and Mexican companies. The focal point is the recent designation of cartels and their members as Foreign Terrorist Organizations (FTO) and/or Specially Designated Global Terrorists (SDGT). Unlike in the past, where counter-narcotics sanctions had a limited impact on day-to-day business operations, these new rules introduced a different risk landscape. The spotlight is not simply on the widely-publicized foreign terrorist organizations but rather on the lesser-known yet impactful, specially designated global terrorist (SDGT) actions. These SDGT designations empower the US Treasury's terrorist finance tracking program, effectively increasing surveillance on Mexican payments, thus posing new challenges and risks for domestic companies. Key highlights: Introduction to New Rules Impacting US Companies Impact on Domestic Mexican Companies Terrorism Designations and Their Implications Treasury's Terrorist Finance Tracking Program Resources: Jeremy Paner Diego Durán de la Vega Hughes Hubbard & Reed website Designation of Criminal Cartels as Foreign Terrorist Organizations Increases Compliance Risks for Companies (US or Not) Operating in Mexico and Greater Latin America

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast, All Things Investigation. In this podcast, host Tom Fox is joined by HHR Partner Mike DeBernardis to discuss the recent executive order by the Trump administration to pause the enforcement of the Foreign Corrupt Practices Act (FCPA) for 180 days. They take a deep dive into the potential implications for compliance programs, the continuing relevance of the FCPA, and the broader legal and business effects of this temporary halt. The conversation also explores how companies might navigate this hiatus, consider the long-term implications, and maintain robust compliance standards despite the pause in enforcement. Highlights include Mike's insights on the intersection of compliance and business efficiency and the potential for non-US authorities to fill any enforcement void created by the U.S. Department of Justice's pause. Key highlights: Executive Order on FCPA Enforcement Implications for FCPA Compliance SEC and Business Implications Compliance Programs and Business Practices Future of FCPA Guidance Opportunities for Compliance Officers Resources: Hughes Hubbard & Reed website

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast, All Things Investigation. In this podcast, host Tom Fox is joined by HHR Partner Mike Huneke and Brent Carlson from the Berkeley Research Group. Brent Carlson and Mike Huneke review the recent DeepSeek AI announcement, which has stirred significant debate in the business and compliance sectors. Brent views this development as a “Sputnik moment” in the technology space, highlighting both the exciting potential and the profound implications for national security and corporate strategy, particularly due to the dual-use nature of AI technologies. On the other hand, Mike has expressed concern over the contentious debates surrounding export controls, emphasizing the necessity for robust compliance frameworks to mitigate liability risks and adapt to the evolving AI landscape. Together, they stress the importance of incorporating high probability standards and reliable inputs into compliance programs to effectively navigate the complex challenges of advanced AI technologies like DeepSeek, ensuring corporate citizenship and strategic advantage in this new era. Key highlights: Groundbreaking AI Progress Raises National Security Concerns AI Market Disruption by DeepSeek Technology High Probability Standard in Export Control Compliance Subjective Judgment in Compliance Risk Assessment Framework Red Flag Detection with Data Analytics Tools Resources: Hughes Hubbard & Reed website Brent Carlson on LinkedIn A Fresh Look at US Export Controls and Sanctions DeepSeek Finds US Export Controls at a New ‘Sputnik Moment' in Bloomberg Law

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast, All Things Investigation. In this podcast, host Tom Fox is joined by Sean Reilly to explore the Nippon Steel/US Steel transaction. We begin with an in-depth explanation of the Committee on Foreign Investment in the United States (CFIUS) and its role in scrutinizing foreign transactions for national security risks. The conversation highlights the complex and detailed CFIUS filing process, stressing the importance of early compliance counsel involvement to avoid potential roadblocks. The discussion extensively covers the Nippon Steel and US Steel transactions, pointing out key developments and underlying political influences and analyzing how President Biden eventually barred the potential acquisition. In an addendum, the conversation also touches on recent changes under the Trump administration, emphasizing the need for companies and compliance officers to adapt dynamically amidst rapidly evolving regulations. Sean advises on practical steps for businesses considering transactions that might trigger CFIUS involvement, underscoring the importance of engaging with the committee early and thoroughly. The episode is an essential guide for corporate compliance professionals navigating the complexities of cross-border transactions and national security considerations. Key highlights: Understanding CFIUS Nippon Steel and U.S. Steel Acquisition CFIUS Concerns and Political Implications Advice for CFIUS Compliance Developments under Trump and Future Outlook Resources: Hughes Hubbard & Reed website Sean Reilly

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. 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 & 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

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

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

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast, All Things Investigation. In this episode, Anna Hamati, a Hughes Hubbard & Reed LLP lawyer, joins host Tom Fox to discuss the historic anti-money laundering (AML) enforcement action involving TD Bank. Anna outlines her professional background in compliance and offers a deep dive into the top five takeaways from the extensive consent order related to the TD Bank case. These takeaways highlight key compliance failures, including inadequate resource allocation, insufficient testing and auditing, a weak culture of compliance, poor training programs, and failures in filing accurate and timely CTRs and SARs. The discussion provides critical insights and practical advice for compliance professionals seeking to improve their AML programs. Anna underscores the importance of allocating sufficient resources to compliance functions, conducting proper testing and auditing, fostering a strong compliance culture from the top, providing comprehensive training, and ensuring the timely and accurate filing of CTRs and SARs. She illustrates the real-world implications of these compliance failures through detailed examples and offers practical guidance for banks and financial institutions to avoid similar pitfalls. This episode is a must-listen for anyone involved in AML and regulatory compliance. Key highlights: Overview of the TD Bank Case Importance of Adequate Resources Testing and Auditing Culture of Compliance Training Programs Filing Timely and Accurate Reports Resources: Hughes Hubbard & Reed LLP Website Anna Hamati

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 as we explore the recently released 2024 ECCP. In this discussion, Tom and the speaker examine the extent to which the government issues detailed guidance, advice, and settlement documents in areas of law like the Foreign Corrupt Practices Act (FCPA). The conversation reflects on historical perspectives, including a statement by an SEC commissioner from the 1980s who compared issuing guidance on the FCPA to advising on committing murders. The dialogue also touches on lessons from the Enron collapse and the dissolution of Arthur Andersen, noting the government's cautious approach to putting corporations, employees, and shareholders at risk. The speaker argues that while this guidance can be seen as helping companies avoid misconduct, ignoring or rejecting it can lead to significant legal trouble. Key Highlights ·      Introduction to ECCP ·      Government's Approach to Corporate Risk ·      Mike's Top 5 Takeaways ·      What does it all mean?  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 is joined by guests Mike DeBernardis and Shayda Vance to discuss the significant case involving Austal USA, a shipbuilding company facing charges of securities fraud and obstruction of a federal audit due to the misreporting of costs for U.S. Navy ships. The episode delves into the actions taken by the DOJ and SEC and underscores the complexities involved when senior executives are implicated in fraud and the challenges companies face in maintaining compliance and cooperation with government investigations. The conversation highlights the importance of having a robust compliance program and the critical role of the board of directors in overseeing investigations. The guests also explore the specific ramifications for government contractors and defense contractors and the significant impact of U.S. jurisdiction on foreign companies listed on American Deposit Registries. Through the lens of the Austal case, the discussion provides vital insights and lessons for compliance professionals, corporate executives, and board members. Key Highlights Details of the Fraud and Legal Actions Lessons Learned and Analysis Government Contractors and Compliance Programs Challenges in Replacing Senior Executives Significance of ‘Not Presently Responsible' in Government Contracting Implications of Listing on the American Deposit Registry Resources: Hughes Hubbard & Reed website 

Welcome to the Hughes Hubbard Anti-Corruption & Internal Investigations Practice Group's podcast All Things Investigation. In this podcast, host Tom Fox welcomes back Tom Lee to take a deep dive in the Supreme Court's invalidation of the Chevron deference and what it means going forward. In this episode, special counsel Tom Lee joins the podcast to discuss the Supreme Court's recent decision in the Loper Bright case, which overruled the long-standing Chevron deference. Lee explains the implications of this ruling on how courts interpret ambiguous statutory terms and provides insights into the decision's grounding in the Administrative Procedure Act rather than the Constitution. He also discusses the potential impact on past cases decided under Chevron, future regulatory challenges, and the strategic considerations for companies navigating the new legal landscape. Throughout, Lee offers a thorough analysis of the evolving legal environment and its consequences for administrative law. Key Highlights Overview of the Loper Case and Chevron Deference Supreme Court's Decision and Its Implications Consequences of Overruling Chevron Deference Future Challenges and Legal Strategies Administrative Procedures Act and Its Impact  Resources: Hughes Hubbard & Reed website Thomas Lee HHR Client Alert-Litigation After the Demise of Chevron Deference

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. 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

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. 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. 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