Feb. 1, 2023

Corporate Enforcement Policy Revisions: A More Amenable DOJ Looks to Negotiate

Announcing the DOJ’s Revised Corporate Enforcement Policy during a speech at Georgetown University, Assistant Attorney General Kenneth Polite, Jr. called on corporations to be “our allies in the fight against crime.” Via incentives in the revised policy, the DOJ invites not just corporate do-gooders of sorts—those who voluntarily self-report, cooperate, and remediate—but also more serious sinners (recidivists) to try and make a deal. This latest development seems an interesting shift coming just months after Deputy Attorney General Lisa Monaco warned so-called “frequent flyers” that the DOJ “will not shy away from bringing charges or requiring guilty pleas where facts and circumstances require.” In this first part of our article series, we look at the changes and the possible effect on self-reporting, as well as how these revisions fit in with Department initiatives. In the second part, we will take a closer look at aggravating factors, immediate self-disclosure and extraordinary cooperation, and discuss whether nondisclosure is still an option. See  “Revised Monaco Memo Affects Compensation, Clawbacks and Monitorships” (Oct. 26, 2022) and “How the Revised Monaco Memo Alters Deal Making and Strategy” (Oct. 12, 2022).

Checklist of Collateral Consequences From FCPA Enforcement Actions

Many companies and executives are well familiar with the significant direct consequences that arise from the resolution of FCPA enforcement actions. These include criminal convictions and fines for the company, disgorgement of profits, civil penalties, and prejudgment interest, as well as the potential for SEC/DOJ mandated corporate compliance monitors. Less familiar and often overlooked are the many and often substantial collateral consequences of entering into FCPA resolutions. The Foley & Lardner Anti-Bribery/FCPA team has for some time been compiling a list of these collateral consequences and this article represents their initial list and some examples from FCPA enforcement actions. We invite our readers to share additional consequences, examples, or other suggested modifications to the list by email to rebecca.parker@iongroup.com with the subject “Collateral Consequences Checklist.” 

Safran's Declination: Successor Liability and Promises Kept Under the FCPA Corporate Enforcement Policy

French aircraft manufacturer Safran’s voluntary disclosure, extensive cooperation and agreement to disgorge the $17.9 million in profits allegedly obtained through its bribery scheme in China were cited by the DOJ as key factors in its decision not to prosecute the company for FCPA violations, seeming to follow-through on the promises made under the FCPA Corporate Enforcement Policy and its 2016 predecessor, the FCPA Pilot Program. The Anti-Corruption Report spoke with Daniel Kahn, a partner at Davis Polk, and James Koukios, a partner at Morrison & Foerster, about Safran’s declination and what it signals for corporate compliance programs. See “Top FCPA Officials Discuss the State of Compliance and Advise on Negotiations, Presentations and When to Cooperate” (December 21, 2022).

Honeywell’s Well-Done Damage Control? Assessing the Resolution

In a resolution that may be a win-win for both the government and the defendant, Honeywell has entered into a three-year deferred prosecution agreement with the DOJ to resolve allegations that the company conspired to violate the FCPA by offering a $4 million bribe to a former Petrobras executive. In all, Honeywell agreed to pay more than $160 million to resolve parallel global investigations. In the first part of this article series analyzing the resolution, we discussed the bribery scheme, what Honeywell did right, and the significance of the omission of a monitor from the resolution. In this second part, we discuss the certification requirements of the settlement, the effect of the size of the company on compliance and the international cooperation in the case. See “2022 FCPA Year in Review: Clawbacks, Messaging Apps and More Enforcement to Come” (Dec. 21. 2022).

A Ransomware Tabletop’s 360-Degree Incident Response View: Days One to Four

The multiple challenges posed by cyberattacks, which have wreaked havoc on organizations in every industry sector, demand a carefully planned interdisciplinary approach. In a recent Practising Law Institute presentation, cybersecurity experts from Hunton, Brunswick Group and Stroz Friedberg walked through a hypothetical ransomware attack and discussed best practices for an appropriate incident response plan in the moments, hours and days that follow. This first article in a two-part series covers discovery of the breach through day four of the investigation, and part two will address day five through the post-mortem. While the hypothetical's company was fictitious, the incident discussed was inspired by real-life events and actual business impact and threat-actor activities. See “How Colonial Pipeline Changed Advice on Ransomware Preparation and Response” (Jun. 8, 2022).

William McGovern and Wade Weems Form New Firm

William McGovern and Wade Weems, former partners at Kobre & Kim, have announced the formation of a new firm, McGovern Weems. Practice areas include business advisory, regulatory investigations and enforcement, internal investigations, white collar criminal matters, and monitorships. For more from Weems, see "The Latest Tool in the U.S. Enforcement Arsenal Against China Targets Forced Labor" (Jan 6. 2021); and "The Engel List Foreshadows U.S. Enforcement in Central America" (Dec. 1. 2021). For more from McGovern, see "DOJ Charges Former Executives of Herbalife Subsidiary in China with FCPA Violations" (Jan. 8. 2020).

King & Spalding Adds Partner to its Government Investigations Team

King & Spalding has announced that Olivia Radin has joined the firm as a partner on its special matters and government investigations team. She is based in the New York office. For more from King & Spalding, see “Former Prosecutors’ Strategies to Minimize Pandemic-Related Compliance Risk” (Apr. 1, 2020).

Nichols Liu Hires New Co-Chair of Global Compliance and Risk Practice

Laura Kennedy has joined Nichols Liu in Washington, D.C, as a partner and co-chair of its global compliance and risk practice.