White Collar Crime Prof Blog

Third Global White Collar Crime Institute - Prague, June 27-28, 2019

Readers of the blog might be interested in the upcoming Third Global White Collar Crime Institute, which will occur in Prague, Czech Republic on June 27-28, 2019. The Global Institute is a unique ABA Criminal Justice Section conference opportunity structured to bring together experts in the field of international white collar crime to meet and discuss cutting edge issues in a new corner of globe. The experience, therefore, offers not only insights into the latest developments in the field, but the chance to interact and network with colleagues and expand your presence in new regions of the world.

The Third Global Institute will begin with a “Meet the Enforcers” panel featuring Matthew Miner (Deputy Assistant Attorney General of the United States, U.S. Department of Justice), Matthew Wagstaff (Head of the Bribery and Corruption Division, Serious Fraud Office), and Pavel Zeman (Prosecutor General of the Czech Republic). On the second day of the Global Institute, we will also welcome Dr. Adrian Jung, who serves as Special Counsel on “Internal Investigations” to the German Federal Ministry of Justice. Dr. Jung is drafting legislation for Germany regarding corporate criminal liability and internal investigations that has the potential of changing the corporate criminal enforcement landscape in Europe. Other panels during the conference will include Lessons Learned from the VW Internal Investigation, Data Privacy and GDPR, Extradition and Red Notices, Global Anti-Corruption Trends, and Changes in Enforcement After Brexit. 

For those interested in attending, there is more information about the Global Institute on the conference webpage, including a full agenda of the program and the registration form. I hope to see many of you in Prague next month. 

(LED)

Deutsche Bank Raid

News media are reporting that Deutsche Bank has been raided by German prosecutors. (see BBC here), (see NYTimes here).  A money laundering investigation is what is being reported.  Deutsche Bank stated that "[i] is true that the police are currently conducting an investigation at a number of our offices in Germany.  The investigation has to do with the Panama Papers case. More details will be communicated as soon as these become known.  We are cooperating fully with the authorities." (Tweet @ Deutsche Bank). They also have stated that "[a]s far as we are concerned, we have already provided the authorities with all the relevant information regarding Panama Papers." So if Deutsche Bank provided everything, why is there a raid?

(esp)

Government's Exhibit List in U.S. v. Manafort

For all of you Manafort trial junkies, here is the Government Exhibit List, recently filed in U.S. v. Paul J. Manafort, Jr., set to start soon in U.S. District Judge T.S. Ellis, III's Alexandria courtroom.

Here also is Judge Ellis's Order Denying Paul Manafort's Motion for Change of Venue.  Judge Ellis ruled last week that Manafort is not entitled to a presumption that any Alexandria federal trial jury would be partial to the government. If Manafort can establish actual prejudicial partiality through voir dire, a herculean task under current federal criminal law, Judge Ellis will revisit the issue.

(wisenberg)

Van Der Zwaan Plea and Statement of the Offense

Hey, if the Office of Special Counsel can't decide the proper capitalization of his name, don't expect me to. Here are the  Van Der Zwaan Plea Agreement and the  Van Der Zwaan Statement of the Offense.

 (wisenberg)

Media Coverage of Friday’s International Soccer Convictions

On Friday, two international soccer executives were convicted in federal court in Brooklyn, New York, for their roles in a global bribery scandal. The defendants were alleged to have received bribes and kickbacks to influence decisions regarding media rights associated with significant FIFA soccer tournaments. The defendants were also alleged to have accepted payments to influence the selection of venues for the World Cup and other important tournaments.

Juan Angel Napout, former head of South America’s football governing body, was accused of accepting $10.5 million in bribes, and Jose Maria Marin, former president of Brazil’s Football Confederation, was accused of accepting $6.55 million in bribes. Napout was convicted of several counts, including racketeering conspiracy, wire fraud, and money laundering. Napout was convicted of racketeering conspiracy and wire fraud.

After the convictions, FIFA stated, “FIFA strongly supports and encourages the U.S. authorities’ efforts to hold accountable those individuals who abused their positions and corrupted international football for their own personal benefit.”

The jury was unable to reach a verdict regarding the third defendant in the case, Manuel Burga, former president of the Peru soccer federation. Jurors will return next week to continue deliberating in his matter.

Since the investigation into international soccer began in 2015, more than 20 defendants have pleaded guilty. Several news outlets have in-depth coverage of Friday’s convictions, including the New York Times, Sports Illustrated, the BBC and Bloomberg.

(LED)

Australia Launches Royal Commission to Examine Banking Sector

As detailed by The Sydney Morning Herald, the Australian government announced this week that it will convene a Royal Commission to examine potential misconduct by the Australian banking and financial services sector.  The announcement was made by Prime Minister Malcolm Turnbull after a letter was received from four banks asking that a commission be established.  The communication from Commonwealth Bank, Westpac, National Australian Bank, and ANZ Banking Group asked that a “properly constituted inquiry” be conducted.  The bank letter opened by saying,

We are writing to you as the leaders of Australia’s major banks.  In light of the latest wave of speculation about a parliamentary commission of inquiry into the banking and finance sector, we believe it is now imperative for the Australian Government to act decisively to deliver certainty to Australia’s financial services sector, our customers and the community. 

Our banks have consistently argued the view that further inquiries into the sector, including a Royal Commission, are unwarranted. They are costly and unnecessary distractions at a time when the finance sector faces significant challenges and disruption from technology and growing global macroeconomic uncertainty.

However, it is now in the national interest for the political uncertainty to end.  It is hurting confidence in our financial services system, including in offshore markets, and has diminished trust and respect for our sector and people.  It also risks undermining the critical perception that our banks are unquestionably strong.

The establishment of the Royal Commission comes after several scandals involving financial institutions, including regulatory actions regarding rate rigging, money laundering, and misuse of client funds. 

According to the draft terms of the reference, the Royal Commission inquiry will be broader than simply investigating alleged criminal activity.  The reference includes instructions to examine:

• “[T]he nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf)”  
• “[A]ny conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations”
• [T]he use by a financial services entity of superannuation members' retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members”

The Royal Commission will last for twelve months and a final report is expected by February 2019.  Given the breadth of the inquiry, however, it would not be surprising to see the work of the commission continue on longer.

(LED)

Another Major Corruption Scandal Hits Brazil

As I mentioned in a post a few weeks ago, the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program for the event is now available online.  What was already shaping up to be a fascinating conference will now be even more interesting with news breaking overnight of another major Brazilian corruption scandal.  

According to the New York Times, the Brazilian newspaper O Globo alleged overnight that a food company executive taped a conversation with Brazilian President Michel Temer in March that included discussions of "hush money" being paid to a jailed politician.  According to the the New York Times, President Temer is also alleged to have told the food company executive to pay a lawmaker in relation to a dispute at a company facility.  The President of Brazil issued a statement in response to the O Globo story denying the allegations, and the New York Times noted in its article that the paper had not yet independently confirmed the allegations. 

According to The Rio Times, the food company executive in question, Joesley Batista, told federal prosecutors about the conversation as part of his cooperation pursuant to a plea bargain.  Batista had been implicated in the Carwash corruption investigation in Brazil.  After news of the allegations broke, lawmakers from several political parties called for an investigation.  There were also calls for the President to resign.  According to The Rio Times, PSB national president Carlos Siqueira told local media, "The resignation of the President has become an imperative not to aggravate the crisis further.  The Temer government ended today." 

This latest alleged scandal comes at a time when Brazil is still reeling from the fallout of the Petrobras scandal, a case that led to the downfall of former Brazilian President Dilma Rousseff.  These latest developments will certainly be ones to watch as corruption allegations continue to plague the Brazilian government. 

(LED)

ABA Criminal Justice Section Second Global White Collar Crime Institute

In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China. It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field.

I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program is now available online, and it is shaping up to be another spectacular event.

The program includes the following panels:

• A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
• Navigating Cross Border Government Investigations and Prosecutions
• Trends Regarding Global Anti-Corruption Enforcement
• A View of Global White Collar Crime from the Bench
• Preparing for the Globalization of Corporate Internal Investigations
• Navigating Global Compliance Trends and global Enforcement Priorities

I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments. Register here while space is still available.

(LED)

ABA CJS Hong Kong Conference - Global Investigations and Compliance

As many readers know, I am heavily involved in planning international white collar crime conferences with the American Bar Association Criminal Justice Section. These have become wonderful learning and networking opportunities for those with an interest in the many issues in the field that transcend national boundaries.

I’m excited to announce the next international conference offering will occur on April 5, 2017 in Hong Kong. The event will focus on Global Investigations and Compliance:  From Regulatory Trends to Leveraging Innovation and Technology.  I expect this conference to be a wonderful compliment to the successful Global White Collar Crime Institute the American Bar Association held in Shanghai in 2015.  If you attended the Shanghai event, I hope you will join us again and reconnect with the many colleagues and contacts you established at that earlier conference.  If you were not in attendance in Shanghai, I hope you will join us in Hong Kong and be introduced to the growing network of international professionals making these American Bar Association white collar conferences an important part of their network. 

Seating is limited for this event, and I hope you will register today to reserve your spot (click here to register).  I look forward to seeing many of you in April. 

Official ABA Event Description

PwC Hong Kong and the American Bar Association are hosting a full day seminar with four robust panel discussions followed by a networking reception.  The panel sessions will focus on a number of pertinent topics, such as exploring regulatory updates, international investigations, navigating cross-jurisdictional issues in Southeast Asia, and the future of blockchain technology in compliance programs.  The content for these panels will be delivered by leading experts, including prominent attorneys in the US and Asia, US regulators, consulting professionals, corporate executives, professors, and others.  The target attendees for this event are international and Hong Kong/China based legal and corporate professionals focused on white collar crime and compliance.

Topics include:

• Regulatory Update: Recent Trends in Enforcement
• Current State of International Investigations
• Navigating Cross-Jurisdictional Issues in the South Asian Market
• Block-chain Technology: What does it mean for the Future of 
Compliance Programs?

More information here.

(LED)

Microsoft Wins Again Regarding Warrant for International Data

An important issue to watch this year is the ongoing battle over access to data collected by companies and stored overseas.  This issue heated up last year when Microsoft won its Second Circuit challenge of a 2013 warrant for emails housed in an Irish data center.  In the Second Circuit decision from July 2016, the court determined that U.S. law did not allow the enforcement of warrants for customer email content housed overseas, even though Microsoft is a U.S. service provider. 

Last week, the Second Circuit denied rehearing the Ireland case by a divided 4-4 vote.  The decision contains a number of interesting arguments from the judges and is worth a read for those involved in cases with international data issues.  

The Second Circuit decision now sets the case up for a possible Supreme Court challenge by the government.  According to Orin Kerr, writing in the Washington Post, however, Senator Sessions indicated during his confirmation hearings that he might seek a legislative remedy to address the Microsoft issue.  Either way, this topic is one to keep an eye on in 2017.

(LED)

ABA CJS London White Collar Crime Institute - Internal Investigations

In this second post from the Fifth Annual ABA Criminal Justice Section London White Collar Crime Institute, I will discuss some of the lessons learned and issues discussed during this morning’s panel on international internal investigations.

The panel emphasized that one of the first issues for consideration after the discovery of potential misconduct by a corporate employee is disclosure obligations. One of the issues discussed in this context was the tension the exists when a corporation wants time to develop the facts, but mandatory disclosure requirements restrict the time frame during which this can occur. This is an issue made even more complex in the international context, where the disclosure obligations might vary significantly from one jurisdiction to another. Further, along with mandatory disclosure obligations, there are permissive disclosure considerations. One of the most important, of course, is the decision whether and when to disclosure the issues discovered to the government in an effort to demonstrate cooperation and voluntary disclosure.

The panel also considered the importance of seeking to preserve evidence immediately. As readers know, failure to protect evidence from destruction can both jeopardize the ability of counsel to conduct an effective internal investigation and, potentially, lead to charges of obstruction of justice.

Part of the hypothetical discussed during the panel involved a number of emails being collected by private counsel as part of the internal investigation. These emails came from various parts of the world, including Hong Kong and Amsterdam. While counsel in the U.S. are comfortable with collecting emails and other corporate documents during an investigation without significant impediment, data privacy laws in other countries introduce a number of complexities. In the European Union, for example, there are many restrictions on the transfer of data out of the country. One related issue explored by the panel was whether U.S. prosecutors understand or appreciate the significance of these data privacy obligations. Based on discussions both today and yesterday at the conference, it appears that one of the reasons tension exists in this area is because of the different approaches to these data privacy obligations taken by corporations during pending investigations.

The panel then discussed issues associated with employee interviews during an internal investigation. Here, the panel examined the ways that local employment, criminal, and civil laws can impact the ability of counsel to conduct such interviews. Once again, while few restrictions exist in the United States, a host of restrictions and requirements related to interacting with employees in this way may apply abroad. Can the interview be recorded? Can the employee’s statements be disclosed to the government? Does the employee need to be given notice or provided with representation prior to the interview? What types of disclosures need to be made to the employee before the interview begins? Are interview notes privileged? How do the answers to these questions impact an internal investigator’s strategy? As these questions illustrate, each step of the investigation on the international stage posses various pitfalls and perils.

As part of this panel, we also heard an interesting discussion of the economics of profit and loss calculations in a bribery case. The presentation reminded us of the complexities of profit and loss calculations and the significant impact these calculations might have on the outcome of the case. It also reminded us of the importance of retaining the right experts in any case, particularly one that crosses borders.

The panel as a whole served as a nice reminder of the importance of considering local laws and rules when engaging in a cross-border investigation.  

(LED)

A Review of the UK Serious Fraud Office's Second DPA

Earlier this month, the UK Serious Fraud Office announced the approval by Lord Justice Leveson of the country's second deferred prosecution agreement.  Readers may recall that the implementation of a DPA process is relatively new in the UK (see prior post here).  According to the SFO press release in the matter, the company, which remains nameless due to ongoing, related legal proceedings, was subject to an indictment charging "conspiracy to corrupt, contrary to section 1 of the Criminal Law Act 1977, conspiracy to bribe, contrary to section 1 of the same Act, and failure to prevent bribery, contrary to section 7 of the Bribery Act 2010, all in connection with contracts to supply its products to customers in a number of foreign jurisdictions."

Pursuant to the terms of the DPA, the indictment was suspended and the company agreed to pay a total of 6,553,085 British Pounds.  The company also agreed to continue to cooperate with the ongoing SFO investigation and conduct a review of all third party transactions and its existing compliance measures. 

The SFO press release went on to state:

In passing the judgment, Lord Justice Leveson said:

“[This conclusion] provides an example of the value of self-report and co-operation along with the introduction of appropriate compliance mechanisms, all of which can only improve corporate attitudes to bribery and corruption.”

SFO Director David Green CB QC said:

“This case raised the issue about how the interests of justice are served in circumstances where the company accused of criminality has limited financial means with which to fulfill the terms of a DPA but demonstrates exemplary co-operation.

“The decision as to whether to force a company into insolvency must be balanced with the level and nature of co-operation and this case provides a clear example to corporates. The judgment sets out the considerations in detail and endorses the approach we took. As with the first DPA with Standard Bank, the judgment provides clear and helpful guidance.”

The suspended charges relate to the period of June 2004 to June 2012, in which a number of the company’s employees and agents was involved in the systematic offer and/or payment of bribes to secure contracts in foreign jurisdictions. The SFO undertook an independent investigation over a period of two years, concluding that of the 74 contracts examined 28 were found to have been procured as a result of bribes.

The SME’s parent company implemented a global compliance programme in late 2011. In August 2012, this compliance programme resulted in concerns being raised within the SME about the way in which a number of contracts had been secured. The SME took immediate action, retaining a law firm that undertook an independent internal investigation. The law firm delivered a report to the SFO on 31 January 2013, after which the SFO conducted its own investigation.

The SFO would like to thank HM Treasury, HM Revenue & Customs and the Department for Business, Innovation & Skills for their assistance in this investigation.

The final redacted judgement in the matter is available here.  

This week, WilmerHale released a piece entitled "The UK's second DPA: a hopeful judgment."  In the piece, author Lloyd Firth argues that several revelations from the DPA are encouraging as we consider the role the new DPA system will have in the UK.  For those interested in the evolving DPA process in the UK, I recommend you give both the final redacted judgment and the WilmerHale piece a read. 

(LED)

New Paper re Internal Investigations and Privilege

I have just published a new article in the Compliance Elliance Journal entitled "Internal Investigations and the Evolving Fate of Privilege."  

Abstract

In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.

The article is available for free download here. 

(LED)

BuzzFeed and the BBC Expose Evidence of Match-Fixing in Tennis

White collar crime in sports has been a topic of much discussion over the last year, including the widespread coverage of corruption allegations against high ranking officials with FIFA (discussed here).  Now it appears that the tennis word is coming under greater scrutiny as a BuzzFeed and BBC article is released discussing what they describe as "widespread match-fixing by players at the upper level of world tennis."  

The article, entitled The Tennis Racket, was released over the weekend and immediately provoked much discussion.  The story details evidence of match-fixing, including the involvement of Russian and Italian gambling syndicates.  According to the authors, tennis's governing body has been repeatedly warned about the activities of a core group of sixteen players, each of whom has ranked in the top 50 and some of whom are winners of singles and doubles at Grand Slam tournaments.  According to the report, none of the sixteen have been sanctioned and more than half will be playing in the Australian Open, which started today.  Included in the article is a fascinating discussion of a 2007 match in which the betting was so suspicious, Betfair (the world's largest internet betting exchange) suspended the market and announced for the first time in its history that all bets on the match were void. 

After the release of this article, it appears all eyes over the next couple of weeks will be on both the matches at the Australian Open and these serious allegations of misconduct.  The question now is whether this story will mark the beginning of a journey for the tennis world similar to the one the soccer world has experienced over the last year.  

(LED) 

Here Is Your $547 Million Check From Swiss Santa

Guest Blogger - Dmitriy Kamensky, Fulbright Faculty Development Fellow, Stetson University College of Law; Professor of Law, Berdyansk State University, Ukraine.

On Dec. 30, just as corporate and the rest of America was getting ready to celebrate the New Year, one of the top-tier Swiss banks, Julius Baer Group, announced (see here) that it had reached an agreement in principle with the U.S. Attorney’s Office for the Southern District of New York, related to a long and extensive investigation into aiding American customers to evade millions of tax dollars. The bank said it set aside $ 547 million to settle the matter with the Justice Department and expects to enter a final settlement in the first quarter of 2016.

This final development of the Julius Baer case is the latest of about a dozen Swiss financial institutions that came under DOJ scrutiny for allegedly providing American customers (and taxpayers) with numbered accounts that were protected by Swiss bank-secrecy laws, thus effectively helping U.S. taxpayers underreport their taxes.

In February of 2009, UBS AG, the largest Swiss bank worth over $ 1 trillion in assets, entered into a Deferred Prosecution Agreement (DPA) with the Department of Justice for $780 million (see here). The bank has acknowledged that between 2000 and 2007 it has participated in a cross-border scheme with the purpose of defrauding the United States and the Internal Revenue Service. The scheme was designed to aid American customers in evading federal taxes, by dodging their money to numbered UBS accounts. Under growing pressure from the U.S. authorities, the bank and later the Swiss government agreed to cooperate, by granting access to American accounts and later relaxing bank secrecy laws altogether.

Then in 2014 another larger Swiss lender, Credit Suisse Group AG, moved to settle a similar criminal probe by pleading guilty to conspiracy to aid its American clients in filing false income tax returns with the IRS. The bank agreed to pay $ 2.6 billion in criminal fine, restitution and other penalties (see here).

With the case of Julius Baer outlining the final part of multiyear aggressive probes by DOJ into the Swiss banking industry and tax dodging operations, it becomes clear that bankers across the globe are being given a serious (and quite expensive) warning: do not mess with American tax laws; federal prosecutors and tax agents have long arms.

(dk)

Britain's First DPA Approved by Court

According to Reuters, a judge approved Britain's first Deferred Prosecution Agreement today.  The below is from the Serious Fraud Office's (SFO) press release.  

The Serious Fraud Office's first application for a Deferred Prosecution Agreement was today approved by Lord Justice Leveson at Southwark Crown Court, sitting at the Royal Courts of Justice.

The counterparty to the DPA, Standard Bank Plc (now  known as ICBC Standard Bank Plc) ("Standard Bank"), was the subject of an indictment alleging failure to prevent bribery contrary to section 7 of the Bribery Act 2010. This indictment, pursuant to DPA proceedings, was immediately suspended. This was also the first use of section 7 of the Bribery Act 2010 by any prosecutor. 

As a result of the DPA, Standard Bank will pay financial orders of US$25.2 million and will be required to pay the Government of Tanzania a further US$7 million in compensation. The bank has also agreed to pay the SFO's reasonable costs of £330,000 in relation to the investigation and subsequent resolution of the DPA.

In addition to the financial penalty that has been imposed, Standard Bank has agreed to continue to cooperate fully with the SFO and to be subject to an independent review of its existing anti-bribery and corruption controls, policies and procedures regarding compliance with the Bribery Act 2010 and other applicable anti-corruption laws. It is required to implement recommendations of the independent reviewer (Price Waterhouse Coopers LLP).

DPAs are a new settlement vehicle in the U.K., as discussed in my article International White Collar Crime and Deferred Prosecution Agreements.  One should expect that now the first DPA has been approved, U.K. enforcement bodies will begin aggressively using DPAs in the coming years.  As the Director of the SFO, David Green, said of the Standard Bank DPA, "This landmark DPA will serve as a template for future agreements."

The press release and links to the Standard Bank DPA are available on the SFO website. 

(LED)

ABA CJS Global White Collar Crime Institute - Keynote Remarks by DAAG Suh

Last week, the American Bar Association Criminal Justice Section held the inaugural Global White Collar Crime Institute in Shanghai, China.  The event was a tremendous success with participants from around the globe coming together to hear from prosecutors and judges, defense counsel and accountants, in-house counsel and academics.  On the first day, we were honored to be joined by Deputy Assistant Attorney General Sung-Hee Suh.  DAAG Suh delivered the keynote luncheon address and touched on many important and timely issues related to white collar crime.  Below, I'll specifically mention just two of the areas discussed.   

First, DAAG Suh discussed the Yates memo and provided additional information about the government's current perspective on corporate cooperation.  DAAG Suh said:

In her memo, Deputy Attorney General Yates announced a policy change designed to further enhance the likelihood that individuals who are responsible for corporate crime will be held accountable. The existing policy stated that, in deciding whether to give a company credit for cooperation, a criminal prosecutor “may” consider a number of factors – including the company’s willingness to give information about individuals. The new policy means that the “may” has now become a “must.” In other words, in deciding whether to give a company credit for cooperation, a prosecutor now “must” consider the company’s willingness to give information about individuals. And a company that does not provide this information will not be eligible for any cooperation credit. Previously, companies could receive varying degrees of credit for varying degrees of cooperation. Now, a company will receive no credit for cooperation unless, at minimum, it does what it can to identify individuals involved in the conduct, whatever their level of seniority or importance within the company. 

(emphasis in original).

Second, DAAG Suh discussed the Department of Justice's recent hiring of a new compliance counsel to assist them in analyzing and evaluating corporate compliance programs.  DAAG Suh said:

Self-disclosure, cooperation and remediation are all steps that a company can take after the fact, but the Justice Department is just as committed to preventing corporate wrongdoing from occurring in the first place. To that end, the Department has long placed great emphasis on the importance of an effective corporate compliance program. In the U.S., there is no affirmative defense based on the company’s corporate compliance program, but the Filip Factors have long provided that in conducting an investigation of a corporation, determining whether to bring charges, or in negotiating plea or other agreements, prosecutors should consider, among other factors, “the existence and effectiveness of the corporation’s preexisting compliance program.”

Fundamentally we ask, is the corporation’s compliance program well designed? Is the program being applied earnestly and in good faith? And does the corporation’s compliance program generally work? This is common sense in broad strokes. But prosecutors are no experts in the nuances of corporate compliance programs. Indeed, over the past twenty years in particular, the role of compliance has been evolving, becoming more sophisticated, more industry-specific and more metrics-oriented. Many companies have rightly tailored compliance programs to make sense for their business lines, their risk factors, their geographic regions and the nature of their work force, to name a few. But many have not.

The Fraud Section has therefore retained an experienced compliance counsel. She started only two weeks ago, so it’s still too early to talk about specifics. But I can tell you generally that we wanted to get the benefit of someone with proven compliance expertise, so as to probe compliance programs in terms of both industry best practices and real-world efficacy. This compliance counsel will help us assess a company’s claims about its program, in particular, whether the compliance program is thoughtfully designed and sufficiently resourced to address the company’s compliance risks, or is – at bottom – largely window dressing.

No compliance program is foolproof. We understand that. We also appreciate that the challenges of implementing an effective compliance program are compounded by the everincreasing cross-border nature of business and of criminal activity. Many companies’ businesses are all over the world. They are creating products and delivering services not only here in China but overseas and are operating across many different legal regimes and cultures. We also recognize that a smaller company doesn’t have the same compliance resources as a Fortune-50 company. Finally, we know that a compliance program can seem like “state of the art” at a company’s U.S. headquarters, but may not be all that effective in the field, especially in far-flung reaches of the globe. 

The Fraud Section’s compliance counsel – who, notably, has worked as a compliance officer here in China, as well as in the U.S. and the U.K. – has the concrete experience and expertise to examine a compliance program on both a more global and a more granular level. More so than ever, it is critical that companies have vigorous compliance programs to deter and detect misconduct. Our compliance counsel will give our prosecutors more tools to intelligently assess them. 

DAAG Suh's entire comments at the inaugural Global White Collar Crime Institute are available here.  

I was also pleased to announce in my closing remarks to the Institute in Shanghai that the second Global White Collar Crime Institute will take place in South America in the spring of 2017.  I hope to see you there. 

(LED)

Registration Open for Global White Collar Crime Institute

Registration is now open for the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute, which will take place November 19-20, 2015 at the Ritz-Carlton Shanghai Pudong in Shanghai, China.  The event is done in collaboration with the KoGuan Law School of the Shanghai Jiao Tong University.  I am honored to serve as the Institute Chair and hope to see many of our blog readers at the event.

This conference will be an incredible opportunity to interact with prosecutors, judges, defense counsel, accountants, in-house counsel, and academics from the U.S., China, and other parts of the world as they convene to discuss the complexities of international white collar crime.  

More from the registration website:

The goal of the conference is to bring the energy and excitement of our previous international white collar crime conferences to Asia and create unique opportunities for our participants to network and explore the legal complexities of white collar crime in the growing Chinese legal market. Conference topics will include: 

• General Counsels’ Roundtable
• Enforcers' Roundtable
• How to Conduct an International Internal Investigation
• Recent Developments in Global Antitrust Cartel Enforcement and Anticipated Implications for China and Asia
• Comparative Legal Systems & Special Enforcement Issues in China, the US & Beyond
• Year in Review: Lessons Learned from Recent White Collar Crimes Prosecutions in China & the US
• Trends Regarding Anti-Corruption Enforcement in China & the US
• Cyber Crime & Virtual Currencies
• Social Responsibility of Corporations

LUNCHEON KEYNOTE SPEAKER – November 19

Sung-Hee Suh, U.S. Deputy Assistant Attorney General  

Suh was appointed in Sept. 2014 as the U.S. Department of Justice's Deputy Assistant Attorney General overseeing the Criminal Division's Fraud, Appellate and Capital Case Sections.  She re-joined the Department after 15 years in private practice at Schulte Roth & Zabel LLP in New York, where she was a partner in the Litigation group and focused on representing institutions and individuals in financial fraud, securities regulatory, Foreign Corrupt Practices Act, anti-money laundering and sanctions matters.  

The complete program is also now available on the ABA CJS registration website. 

(LED)

FIFA Indictment Passes on Jurisdiction, Fails on Obstruction

Yesterday I skimmed through the FIFA indictment referred to by my colleague Lucian Dervan on May 26, 2015 ("FIFA Officials Facing Corruption Charges"), primarily to determine how the government justified jurisdiction over alleged criminal activities that largely, seemingly almost entirely, occurred in other nations, a complaint made by none other than Vladimir Putin.  Upon review, I believe the indictment, apparently drafted with that question in mind, facially makes a reasonably strong case for U.S. jurisdiction, based largely, although not entirely, on money transfers through U.S. financial institutions. 

There remains, however,  the question whether the U.S. Department of Justice should assume the role of prosecutor of the world and prosecute wrongs, however egregious, that were almost wholly committed by foreigners in foreign nations and affected residents of those foreign nations much more than residents of the United States.  Our government's refusal to submit to the jurisdiction of the International Criminal Court  is arguably inconsistent with our demand here that citizens of other nations submit to our courts.

On another subject, what struck me as just wrong was a minor part of the indictment, the obstruction of justice charge against Aaron Davidson, one of the two United States citizens indicted (the other, a dual citizen, is charged with procuring U.S. citizenship fraudulently).  While the obstruction of justice count itself (count 47) is a bare bones parsing of the statute, the lengthy 112-page preamble to the actual recitation of counts (to me in clear violation of Fed. R. Crim. P. 7(c), which says the indictment "must be a plain, concise and definite written statement")(emphasis added) describes Davidson's allegedly criminal conduct as follows: "Davidson alerted co-conspirators to the possibility that they would be recorded making admissions of their crimes."

Such advice is provided as a matter of course - absolutely properly and professionally, in my opinion -  by virtually every white-collar or other criminal lawyer representing a target of a criminal investigation.  Since lawyers are given no special treatment different from others,  if these facts justify a criminal conviction, a lot of white-collar lawyers will be counting the days until the five-year statute of limitations has passed since their last pre-indictment stage client meeting.

The obstruction of justice statute is so vague that it gives the government the opportunity to charge virtually any effort by lawyers or others to advise persons under investigation to exert caution in talking with others.  The applicable statute, the one used against Davidson, prescribes  a 20-year felony for "whoever corruptly...obstructs, influences, or impedes any official proceeding, or attempts to do so..." 18 U.S.C. 1512(c)(2).  That catch-all statute, which follows one proscribing physical destruction of tangible evidence,  to me is unconstitutionally vague, but courts have generally upheld it and left the determination of guilt to juries on the ground the word "corruptly," which itself is subject to many interpretations, narrows and particularizes it sufficiently.  I hope that the presiding judge in this case, the experienced and respected Raymond  Dearie, does not allow that count to get to the jury.

 

FIFA Officials Facing Corruption Charges

According to CNN, the U.S. Department of Justice is preparing to bring corruption charges against up to 14 senior officials at FIFA, the world's soccer governing body.  The reports from CNN come from "law enforcement officials."  According to the New York Times, several FIFA officials have already been arrested in Switzerland in a "extraordinary early-morning operation." 

FIFA has been under investigation for some time, including with regards to the bidding process for the 2018 and 2022 World Cups, which will occur in Russia and Qatar.  FIFA conducted an internal investigation of the selection process for each event.  The investigation was led by Michael Garcia of Kirkland & Ellis.  Garcia submitted his report to FIFA in September 2014.  FIFA then released a "summary" of the report's findings, which summary Garcia alleged was "erroneous."  Garcia resigned as independent chair of the FIFA Ethics Committee's Investigatory Chamber in December 2014.

One issue that will be interesting to watch in this case is the manner by which the U.S. alleges jurisdiction over the senior FIFA officials despite the fact that alleged corruption occurred overseas and FIFA is an association governed by Swiss law.  According to CNN, the U.S. will allege jurisdiction exists because of the breadth of U.S. tax and banking regulations.  Further, the government will reportedly rely in part on the fact that significant revenue is generated by the U.S. television market.  This is certainly a case we will be hearing a lot about in the coming months. 

(LED)