Ashley and Maria, both compliance and legal leaders from Amtrak, discuss how to encourage and manage whistleblowers as a core element of an effective compliance program, emphasizing that a lack of reports does not indicate a healthy organization. They describe a “speak-up” culture as one where employees feel heard, senior leaders model speaking up, and reporting is accessible across a diverse workforce through multiple channels (phone, email, QR codes, mobile tools, in-person availability) and languages. Key barriers include fear of retaliation (often through subtle workplace ostracism), disappointment when nothing happens, and loss of anonymity. They outline best practices for handling reports consistently with other serious complaints, preserving confidentiality “as much as possible,” training mid-level managers and investigators, and maintaining communication with reporters during lengthy investigations. They also caution against dismissing “serial reporters,” recommending contextual analysis and internal process checks.

Key highlights:

• Healthy Speak Up Culture
• Why Employees Stay Silent
• Handling Reports Fairly
• Protecting Confidentiality
• Keeping Reporters Updated
• Serial Reporters and Sparse Tips

Resources:

Hughes Hubbard & Reed Website

Mike DeBernardis

Maria Buccieri on LinkedIn

Ashley Smith on LinkedIn

Gill says the first concern when allegations arise is immediate safety risk to employees and the integrity of work affecting Navy and other military customers, followed by designing an investigation that will be viewed as timely, accurate, and credible. He emphasizes scoping, planning, selecting the right team (including technical experts and, sometimes, outside counsel), and establishing disciplined communication and reporting lines to management and customers while protecting privilege. Gill highlights building employee trust through fair processes, enforcement of anti-retaliation policies, and appropriate follow-up, and notes common mistakes: jumping to conclusions, failing to bound scope, and inadequate planning.

Key highlights:

• Safety First Priorities
• Architecting the Investigation
• Scope Planning and Team
• Protecting Privilege
• Culture and Fairness
• Anti-Retaliation Trust
• Top Mistakes to Avoid

Resources:

Hughes Hubbard & Reed website

Mike DeBernardis

Mike Gill on LinkedIn

Sarah shares her background across manufacturing sectors and discusses how multinational compliance risks evolve as jurisdictional priorities shift, including sanctions, export controls, tariffs, sustainability, labor rights, data protection, and AI. They identify internal challenges, including a lack of infrastructure to address new risks, siloed ownership, and weak change management, and emphasize clear governance and accountability. Sarah advises “back to basics,” using DOJ’s Evaluation of Corporate Compliance Programs, focusing on real risk mitigation over form-heavy questionnaires, keeping communication channels open through formal committees and informal connections, scaling risk assessments appropriately, targeting communications to relevant audiences, escalating thoughtfully, and building resilient programs by expecting and embracing constant change.

Key highlights:

• Geopolitics Drives Risk
• Internal Adaptation Hurdles
• Silos and Ownership
• Culture and Change
• Proactive Compliance Basics
• Partnering With Business
• Right-Sized Risk Assessments
• Communicating Emerging Risks

Resources:

Sarah Iles LinkedIn

Mike DeBernardis LinkedIn

ATI: In-House Insights Podcast

Hughes Hubbard & Reed Website

They explore the return of US energy companies to the Venezuelan market and historical precedents, such as the Iraq Oil-for-Food Program, post-2003 Iraq, and the 1990s Russian market opening, to identify the risks and the necessary compliance measures. Key insights include the importance of stringent third-party controls, understanding the nuances of dealing with state-owned entities such as PdVSA, and having a robust risk management strategy. The conversation underscores the critical need for compliance professionals to thoroughly understand business operations to build effective compliance programs in high-risk environments.

Key highlights:

• Challenges and Opportunities in Venezuela
• Historical Parallels: Iraq Oil for Food Program
• Lessons from Post-2003 Iraq
• Comparing Venezuela to 1990s Russia
• Counseling Clients on High-Risk Opportunities

Resources:

Hughes Hubbard & Reed website

Mike DeBernardis

Presented by the Hughes Hubbard & Reed LLP Anti-Corruption & Internal Investigations Practice Group, this premiere episode sets the tone for a bold new chapter—bringing practical, in-house perspectives to today’s most pressing compliance challenges.

Host Michael DeBernardis welcomes Darryl Cyphers Jr., Senior Director of Legal Compliance at Klaviyo, for a candid and forward-looking conversation on how organizations can build—and sustain—a culture of compliance that actually works.

Together, they explore how compliance leaders can move beyond policies on paper to create real organizational impact—through measurable culture metrics, smarter use of AI to drive policy engagement, authentic tone at the top, and meaningful collaboration with HR and business partners. Darryl also shares practical guidance for navigating compliance gray areas and strengthening trust through continuous employee engagement and feedback.

Highlights include:

• Defining a modern culture of compliance
• Metrics and tools for measuring cultural effectiveness
• Employee engagement and feedback that drive results
• Building partnerships across HR and business teams
• Innovative and engaging compliance training approaches
• Navigating gray areas with confidence and credibility

Resources:

Hughes Hubbard & Reed Website

Klaviyo

Darryl Cyphers Jr. on LinkedIn

Their conversation highlights the dynamic nature of tariff regimes, the importance of maintaining compliance, and the risks of tariff evasion. Sean provides insights into creating effective tariff compliance programs, the potential for False Claims Act liabilities, and the critical role of commercial sense in assessing tariff changes. The episode also touches on enforcement priorities and the strategic importance for boards of directors to remain vigilant about tariff-related risks. As the discussion moves towards the evolving landscape leading into 2026, Sean emphasizes the importance of staying informed and prepared for ongoing tariff regulations. 

Highlights Include 

·      Compliance and Enforcement in Tariff Management

·      Commercial Sense in Tariff Decisions

·      Board Oversight and Tariff Compliance

·      Future of Tariffs and Compliance Going Forward 

Resources:

Hughes Hubbard & Reed website 

Sean Reilly

Highlights include:

• Why These Enforcement Actions Matter
• The Fend Off Fentanyl Act: A New Legal Tool
• U.S. Government Focus on Mexico
• Lessons from OFAC Enforcement
• Compliance Implications for Financial Institutions
• Responding to Enforcement: Practical Steps
• Global Jurisdiction and the U.S. Financial System
• Key Lessons for Compliance Officers
• Looking Ahead: Future Enforcement Trends

Key Takeaways for Compliance Professionals:

• The Fend Off Fentanyl Act introduces new, immediate risks for financial institutions, especially those with ties to Mexico.
• U.S. enforcement actions can have global reach, severing access to the U.S. financial system.
• Compliance programs must be robust, proactive, and responsive to regulatory advisories and negative media.
• Effective communication between compliance and legal functions is crucial for mitigating risk.

Resources:

Hughes Hubbard & Reed website

Jeremy Paner

Diego Durán de la Vega

Mike DeBernardis, partner at Hughes Hubbard & Reed, and Tom delve into the first FCPA enforcement action of 2025 involving Liberty Mutual. They discuss the nuances of self-disclosure during ongoing investigations, the challenges facing defense attorneys, and the expectations set by the new corporate enforcement policy. Key topics include proactive cooperation, dealing with deconfliction, and the importance of root cause analysis. The conversation provides valuable insights into how the Department of Justice communicates its expectations through enforcement actions and the evolving landscape of corporate compliance.

Key highlights:

• Exploring the Liberty Mutual Case
• Challenges of Early Self-Disclosure
• Corporate Enforcement Policy Changes
• Full and Proactive Cooperation
• De-confliction in DOJ Investigations
• Root Cause Analysis Importance
• Social Media and Ephemeral Messaging

 Resources:

Hughes Hubbard & Reed website

Mike DeBernardis

Mike Huneke and Brent Carlson are leading experts in trade compliance, with a particular focus on the intricacies and impacts of tariffs and secondary tariffs within the global economic landscape. Huneke emphasizes the existential threats tariffs pose to businesses, stressing the importance of understanding their effects on countries with significant economic ties to Russia, such as China, and advising companies to reassess trade relationships with nations like China, Brazil, Russia, and Iran. Carlson emphasizes the need for trade compliance officers to adapt to the rapidly evolving geopolitical landscape, advising companies to assess their suppliers and consider potential indirect transactions through transshipment countries to navigate imposed tariffs effectively. Both experts emphasize the importance of businesses adopting a dynamic, risk-based approach to compliance, anticipating challenges, and making informed decisions to mitigate financial impacts and maintain shareholder value amid shifting trade patterns and geopolitical tensions.

Key highlights:

• Geopolitical Impact of Secondary Tariffs
• Global Trade Dynamics Amid Geopolitical Shifts
• Trade Compliance Risks: False Claims & Tariff Evasion
• Resilient Supply Chain Strategy Amid Global Trade Dynamics
• Negotiating Tactics in Geopolitical Tariff Strategy

Resources:

Mike Huneke

Hughes Hubbard & Reed Website

Brent Carlson

BRG Website

Weiner is the Chair of Hughes Hubbard & Reed’s Litigation Department, Chair of the Complex Business Disputes practice, and a partner in the International & Domestic Arbitration and Intellectual Property Disputes groups. Daniel and Tom take a deep dive into the intricate details of how a series of fraudulent transactions led to a multimillion-dollar dispute over Picasso’s ‘Le Peintre.‘ The podcast highlights the importance of thorough due diligence in the art world and examines the legal complexities involved in resolving such cases. As they unravel the story, they highlight the crucial role of investigations in preventing art fraud and safeguarding ownership rights.

Key highlights:

• The Fascinating Picasso Case
• The Fraud Unveiled
• Legal Issues and Investigations
• Discovery Disputes and Court Proceedings
• Consulting and Due Diligence in Art Law

Resources:

Daniel Weiner

Hughes Hubbard & Reed website

HHR Client Alert: Firm Obtains Discovery Win in Dispute Over Sale of Pablo Picasso Painting

They dissect the new memorandum, its implications for corporate investigations, and the focus on eliminating cartels and transnational criminal organizations. The conversation also delves into topics such as competitive advantage, the role of national security in FCPA enforcement, and the strategic implications for companies. The episode concludes with insights on how companies and their legal counsel should navigate these updated guidelines and prepare for a more expedited and focused investigation process.

Key highlights:

• Overview of New FCPA Guidelines
• Focus on Competitive Advantage
• Prosecutorial Considerations
• National Security and Strategic Business
• Prioritizing Serious Misconduct
• Advising Clients on FCPA Compliance

Resources:

Mike DeBernardis

Hughes Hubbard & Reed website

HHR Client Alert: DOJ Ends FCPA Enforcement Pause

• Is meaningful cooperation credit finally here?
• Did we move from a presumption of a declination to something stronger or at least more tangible?
• Is the Kenneth Polite “double secret—we know it when we see it” cooperation requirement now a thing of the past, or at least defined?
• Enhancements to the Whistleblower Program—Initial Thoughts.
• Monitors—dead and gone or something else?
• What, if anything, does this change about the role of corporate compliance today?

Resources:

Mike DeBernardis

Hughes Hubbard & Reed website

Katherine Taylor

In this award-winning All Things Investigations podcast episode, host Tom Fox converses with Hughes Hubbard and Reed partners Mike De Bernardis and Sean Reilly about the firm’s strategic reorganization. Responding to the U.S. administration’s fresh focus on cartels and foreign terrorist organizations, Hughes Hubbard has built a cross-disciplinary task force. This team combines expertise from compliance, sanctions, and dispute resolution practices to address companies’ heightened risks and compliance obligations, particularly in Mexico and Latin America. The discussion also covers implications for multinational corporations, the importance of reassessing risk, how the administration’s prioritization of certain enforcement actions can influence corporate strategies, and the emerging dangers surrounding tariffs and the False Claims Act.

Key highlights:

• Hughes Hubbard’s New Task Force
• Implications of Cartel Designations
• National Security and Voluntary Disclosure
• Cross-Functional Task Force Benefits
• Tariff Evasion and False Claims Act

Resources:

Mike DeBernardis

Hughes Hubbard & Reed website

Sean Reilly

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

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

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

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

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

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

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

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 

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

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

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

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

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

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 

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

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

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

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

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

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

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

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

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

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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You’ll hear Tom, Kenyen and Kevin discuss:

• The surprising lack of preparation on President Trump's defense team's part. They were surprised by the lack of a structured legal argument and the pleading for a trial after the election.
• Is there any merit to the defense's claim that the amount of information to be reviewed necessitates a delay? Kenyen and Kevin agree that the defense might be asking for too long of a delay; however, they do not rule out a timeline extension due to the volume of documents involved.
• Trump's defense does not have a large legal team to sift through the discovery material.
• They examine the defense strategy, in particular the call for the trial not to be held before the election. Such a privilege is not usually granted to typical defendants.
• Kevin voices his concerns over the defense's public statements, questioning the judge's hesitance in issuing gag orders. Kenyen speculates that the choice of the federal district for this case could be strategic on the part of the Justice Department, aiming for a more credible verdict.
• They discuss Trump's announcement about receiving a target letter from Jack Smith, and its implications. They believe that it indicates that the Special Counsel believes there is already probable cause to indict Trump.
• Tom wonders if Smith's motivation was to pre-empt any indictment that might have been made by the state of Georgia.
• Kevin speculates that the Justice Department might have been embarrassed by the January 6 Committee progressing far ahead of their investigation. He posits that it would be even more mortifying if a smaller District Attorney's office managed to build a significant conspiracy and racketeering case against the President while the DOJ was lagging behind.
• Kenyen emphasizes that justice should be their main focus and he would hope that the pace of Smith's actions is determined by the facts and evidence he has, rather than being influenced by a state prosecutor's progress.
• Would the District of Columbia be an appropriate venue for a case involving the January 6 insurrection? Kevin believes so since most of the activity relating to January 6, including the preparation and the event itself, happened in DC.
• Tom asks Kenyen and Kevin for their views on this matter of the recent announcement from the Attorney General of Michigan, who charged a series of persons claiming to be electors from Michigan but who were in fact fraudulent. 

KEY QUOTES

"I would hope that federal authorities are not motivated by what might be taking place in a parallel state jurisdiction. In other words, your master in these circumstances is supposed to be justice…" - Kenyen Brown

"The only thing worse than getting a target letter from the Justice Department is when everybody else who was involved in the crime, except you, didn't get a target letter, they suggest that everybody's cooperating against you." - Kevin Carroll

Resources

Hughes Hubbard & Reed website

Kein Carroll on LinkedIn

Kenyen Brown on LinkedIn

Mike Huneke and Jan Dunin-Wasowicz 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

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

Brown described the indictment as “mind-boggling in its specificness,” providing strong evidence of guilt. The charges include mishandling classified information, with a strong focus on the Espionage Act. Further, the hosts discuss the severity of the charges, sensitive material, and the potential penalty the former president could face, which could mean up to 20 years imprisonment and a $250,000 fine for each count! You want to attend the discussion on the attorney-client privilege and the possibility of Judge Cannon recusing herself from the trial. You will learn much about this unprecedented Indictment with the hosts’ legal expertise.

Key Highlights:

·      Analyzing an Espionage Act Indictment

·      Charges for mishandling classified information

·       Piercing Attorney-Client Privilege in Florida Courts

·      Potential penalties for charges against former president

·      Judicial Impartiality and Independence

·      Federal Trial Process & Political Implications

 Notable Quotes:

“All this indictment is mind-boggling in its specificness. I’ve never seen this type of indictment with this much detail. First, that indicates to me they’ve got the goods.”

“And repeatedly, the National Archives and then the Justice Department through the FBI asked for the documents to be returned, and not only were they not returned, but it appears that there was a conspiracy to obstruct justice to keep them from being returned.”

“Only a small number of people, such as the President of the United States, chairman of the Joint Chiefs, need to have that. These are the absolute crown jewels of the intelligence and defense communities deliberately mishandled.”

“The attorney’s testimony can be admitted.”

Resources

Hughes Hubbard & Reed website

Kenyen Brown bio

Kevin Carroll bio

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

Anne Gaustad is an accomplished French lawyer and an authority in white-collar crime and compliance matters. With over 15 years of professional experience, Anne’s practice focuses on cross-border investigations and compliance matters, notably regarding corruption, fraud, and money laundering. 

Bryan Sillaman is a seasoned American lawyer based in Paris. As a partner at Hughes Hubbard & Reed, Bryan has worked extensively on matters related to the US Foreign Corrupt Practices Act (FCPA), French anti-corruption law (Sapin II), and other international anti-corruption laws. 

You’ll hear Tom, Mike, Anne, and Bryan discuss:

• The French Investigative Guidance is not covered by secret professional or French legal privilege, making its contents publicly accessible.
• The new guide was jointly issued by the AFA and PNF agencies to provide comprehensive guidance on conducting internal investigations.
• While there are similarities to US guidelines, the French guide incorporates the civil law tradition, stringent labor requirements, data privacy considerations, and whistleblower regimes.
• The French legal privilege holds an absolute character, and it's a criminal violation for French lawyers to breach it.
• The new guide underscores the importance of transparency in data collection during internal investigations.
• French blocking statutes and GDPR regulations may pose potential challenges to US-based companies.
• The French guide, while non-binding, provides practitioners with comprehensive instructions for conducting internal investigations.
• The guide puts a strong emphasis on understanding the nuances of French labor law.
• The guide also encourages informing interviewees of the voluntary nature of their participation in investigations.

KEY QUOTES:

“The French Investigative Guidance represents a significant shift in the internal investigations landscape." - Anne Gaustad

"It's crucial for American lawyers to grasp the nuances of French labor law and privilege issues." - Bryan Sillaman

"Transparency in data collection during internal investigations is key to avoiding legal repercussions." - Anne Gaustad

Resources:

Hughes Hubbard & Reed website

Anne Gaustad on LinkedIn

Bryan Sillaman on LinkedIn

Guide (in original French)

Andrew Kopsidas is a litigation and strategic consulting expert with over 20 years of experience in intellectual property (IP) matters. He graduated from George Washington University Law School in 1999, after earning a degree in aerospace engineering from the University of Maryland. Kopsidas is a partner at Hughes Hubbard & Reed, where he advises clients on litigation and strategic counseling matters related to IP.

You’ll hear Tom and Andrew discuss these ideas:

• The ITC is a federal agency that investigates unfair trade practices related to international trade, with the power to bar products from entering the US.
• Any company that has a domestic industry in the US and is facing imports of products made in a foreign country using unfair trade practices can file a complaint with the ITC.
• Unfair trade practices can include patent and trademark infringement, trade secret misappropriation, false advertising, and more.
• ITC cases move quickly, with only 30 days to prepare for discovery and respond to requests, making it crucial for in-house counsel to act fast and get management buy-in.
• Administrative law judges are the fact-finders in ITC cases, and their credibility determinations can be influenced by the reputation of the lawyers involved.
• ITC lawyers must have knowledge of the nuances of ITC practice and be able to work with the Office of Unfair Import Investigations and persuade them that their side of the case is right.
• Andrew emphasizes early assessment of cases. He recommends organizing a scrub session with the outside litigation team and employees to go through the merits of the case. He points out that it’s important to consider the client's objectives to find the best solution for their business.
• The ITC litigation process is strictly one way, with no counterclaims, and the respondent is always on the receiving end.
• The government attorneys at the ITC are neutral and trained to represent the public interest. They participate in discovery and give their opinion right before the trial.
• Going on the offensive is an essential strategy for a defendant in an ITC case. For example, a defendant can file their ITC action as a counteraction, file district court actions, or refuse to stay the district court case.
• Trials in the ITC can be a lot like a district court, but without a jury. The rules of evidence are not as stringent as in district court.
• Companies should take ITC cases seriously and avoid hiring inexperienced counsel as there is a lot of nuance to ITC practice.

KEY QUOTES

"I've seen a lot of good lawyers stumble in the ITC because they just weren't familiar with the nuance of practice." - Andrew Kopsidas

“If a company isn't taking things seriously, the case can be lost before it's practically even begun.” - Andrew Kopsidas

"The first question I like to ask clients is, What's your business objective here? We, as litigators, a lot of times want to think that what we do is the be-all and end-all. Really we're just a tool for these companies that have broader business objectives, and we need to keep that in perspective." - Andrew Kopsidas

Resources:

Hughes Hubbard & Reed website

Andrew Kopsidas on LinkedIn

ITC Spotlight

You’ve Been Sued - Part 1

You’ve Been Sued - Part 2

Kevin Carroll and Kenyen Brown are partners at Hughes Hubbard & Reed. Kevin is a professor, and former Assistant Attorney General for the U.S. Department of Justice. He has also served as a senior counsel to the House Homeland Security Committee. Kenyen is a former federal prosecutor and currently serves as the President of the National Bar Association.

You’ll hear Tom, Kenyen and Kevin discuss:

• Congress has never before tried to use its subpoena power or investigative powers to interfere with an ongoing investigation and prosecution by a state or local prosecutor. 
• There are many potential problems with congressional subpoenas of an ongoing criminal investigation and prosecution by a state or local prosecutor. False accusations, grand jury confidentiality, and potentially ruining a meritorious criminal investigation are just a few examples.
• The congressional committee's request for grand jury material is unlikely to be successful and would be very unpopular due to the privacy of individuals and the sacrosanct nature of the grand jury.
• Members of Congress weighing in on local prosecutions could unduly destroy the separation between the different branches of government and the respective functions of the executive and judicial branches. This could also be a recipe for disaster in terms of creating political investigations that are subject to the whims of different constituencies.
• Prosecutors' offices regularly receive false allegations about prominent people, especially politicians, and potential investigations should remain within the confidences of that office or committee. There is potential for people to be slimed by the revelation under oath of false accusations.
• The Manhattan DA's office is a first-class operation, staffed by some of the brightest legal minds in the country. They have responded appropriately to the congressional committee's request by citing relevant law and their area of authority.
• Public theater is likely driving much of the debate around congressional oversight of the Manhattan DA's investigation. The Republicans may attempt to use this issue to score political points with their base, even though the legal basis for such oversight is questionable at best.
• Alvin Bragg, the Manhattan DA, is acting properly by refusing to comply with any congressional subpoenas. He should continue to resist any attempts by Congress to interfere with his ongoing investigations.
• There may be interesting news in the coming weeks and months regarding this issue, and it is worth keeping an eye on as it unfolds.

KEY QUOTES

"Congress has never before tried to use its subpoena power or investigative powers generally to get in the weeds of an ongoing investigation and now prosecution by a state or local prosecutor." - Kevin Carroll

“Why should Congress decide how a local prosecutor spends his resources or what the policy is on a local level? I just think that excuse is paper thin.” - Kenyen Brown

Resources:

Hughes Hubbard & Reed website

Kein Carroll on LinkedIn

Kenyen Brown on LinkedIn

Tyler Grove is a partner at Hughes, Hubbard and Reed, specializing in sanctions, export controls, and foreign direct investment review. John Hannon is an associate at the same firm and works with Tyler in the International Trade Group, focusing on export controls and sanctions, as well as commercial litigation.

Some of the ideas discussed in this episode include:

• The IT Supply Chain Security Rule gives the US Department of Commerce powers similar to those of CFIUS to review transactions and require mitigating action up to and including unwinding certain transactions if national security concerns are identified.
• The rule applies to a broad range of products, including internet-connected software, data hosting and cloud services, networking equipment, internet-connected cameras, and potentially drones.
• While it's still early in the enforcement process, there could be indirect impacts on trade with China and other countries due to third-party partners refusing to engage in transactions for reputational reasons or otherwise.
• Commerce has requested approximately $36 million to hire 114 positions dedicated to ICTS administration and enforcement, indicating that there will be more reviews and enforcement in the near future.
• The ICTS rule targets companies that are headquartered or sending products from foreign adversary jurisdictions and aims to prevent these companies from acquiring US technology that could be used for national security purposes.
• Companies that fall within the scope of the ICTS rule should conduct a risk assessment to identify any potential national security concerns that Commerce may have and form a response plan for internal stakeholders in the event of an enforcement matter.

KEY QUOTES

"There are some significant differences between the ICTS and CFIUS regimes. First, CFIUS regime allows at-risk companies to proactively seek review and clear their transactions. Although there is a proposed licensing procedure for this ICTS regime, it has not become effective yet." - John Hannon

 "I think the clientele and types of target companies may dictate the regulatory attitude." - John Hannon

"I think at this point we really are advising companies that are at risk to try to be proactive, think about ways that they could get ahead of potential ICTS enforcement action. Probably the very first place to start there is to conduct a risk assessment where a company would look at their products at the supply chain." - Tyler Grove

"As we've mentioned a couple of times already, this rule is very much in the early stages right now, and so it's almost certain that additional guidance will be forthcoming in the near future.” - Tyler Grove

Resources:

Hughes Hubbard & Reed website

Tyler Grove on LinkedIn

John Hannon on LinkedIn

Benjamin Britz is a partner at the law firm Hughes Hubbard and has extensive experience in internal investigations, securities litigation, and white-collar defense. He graduated from Columbia Law School in 2004 and went on to clerk for Judge Jim Carr in the Northern District of Ohio before joining Hughes Hubbard. He has remained with the firm ever since. 

You’ll hear Tom and Ben discuss:

• The Delaware Court of Chancery is a specialized forum for disputes regarding the operations and governance of Delaware corporations, and it has very knowledgeable judges who are confirmed by the Delaware State Senate.
• The duty of oversight applies to corporate officers and is based on the same fiduciary duties as directors.
• The duty of oversight includes the duty of information and compliance information systems, as well as the duty of red flag, where officers need to take action if they become aware of misconduct.
• The court's decision in this case was based on the duty of red flag and a finding of bad faith due to inaction on the part of Fairhurst, who ignored red flags and was allegedly engaged in misconduct himself.
• The court's opinion was comprehensive, possibly to ensure a basis for upholding the decision on appeal, and the duty of oversight applies to the chief compliance officer as well.
• The court's decision in the case discussed does not extend beyond corporate officers. The decision does, however, elevate the role of the chief compliance officer to the level of the CEO or CFO in terms of the breadth of their duties.
• This decision serves as a reminder that courts take the position of the compliance officer very seriously, regardless of their formal designation within the company.
• While the case may not be appealed, it is important because it sketches out areas where basic tenets of corporate governance law are still undeveloped.
• The court's breach of loyalty claim against Fairhurst for committing sexual harassment could open up a can of worms and expand the traditional duty of loyalty into areas where it hasn't been before.
• The duty of loyalty claim for engaging in affairs that are against the code of conduct or other policies and procedures could be a backdoor violation of honest services.

KEY QUOTES

"What's called a red flag duty, if you become aware of misconduct that you have to do something about it." - Ben Britz

"If you are the CCO your duties are very broad, because this whole thing is basically your job. Because of that, it does very much put the compliance officer on the level with the CEO or the CFO..." - Ben Britz

"The expectations from the board certainly are going to be that whoever holds that position is executing it to the absolute fullest." - Ben Britz

Resources:

Hughes Hubbard & Reed website

Ben Britz on LinkedIn

Laura Perkins is the Co-Chair of the Anti-Corruption & Internal Investigations practice group and Co-Managing Partner of the Washington, DC office at Hughes Hubbard & Reed. Prior to joining the firm, Laura worked for nearly ten years at the Criminal Division of the U.S. Department of Justice, where she served as Assistant Chief of the FCPA Unit and oversaw some of the largest individual and corporate FCPA cases in the U.S. Laura now advises corporations, boards of directors, and senior executives on high-stakes government and internal investigations, crisis management, white-collar criminal defense, and cross-border compliance counseling. She has particular expertise in FCPA/anti-corruption, healthcare fraud, financial fraud, and money laundering cases.

Mike Huneke is a partner at Hughes Hubbard & Reed, specializing in Anti-Corruption & Internal Investigations. His work involves advising clients on navigating complex international anti-corruption investigations, implementing compliance risk assessments and program enhancements, and conducting due diligence on third parties. He has received several awards, including Lexology’s Client Choice Award for Investigations-USA in 2022 and recognition from Global Investigations Review for his work representing Airbus in resolving bribery and corruption allegations.

Key ideas you’ll hear in this episode:

• The Department of Justice's corporate enforcement policy has been expanded to a broader range of white-collar crimes. Prosecutors can use it to evaluate possible criminal violations against a company when investigating potential criminal violations. It’s also an unofficial guide for companies on how to position themselves to avoid prosecution or mitigate consequences.
• The new policy offers up to a 75% discount for self-reporting, which is a significant change and an additional incentive for companies to self-report.
• The discounts offered can stack up quickly, and the range of penalties for non-compliance can be large, so the discount can make a marked difference in the amount of criminal penalty under the sentencing guidelines.
• There may still be apprehension about self-reporting, as there is uncertainty about the actual penalties and the reputational harm that can result from a public criminal resolution.
• The definition of extraordinary cooperation is subjective and largely depends on the speed and fulsomeness of the material that is going from the company to the department.

KEY QUOTES:

“One of the major [changes to the Corporate Enforcement Policy is] increasing the maximum potential fine reduction that a company can get for self-reporting. It's a further effort by the Department to incentivize self-reporting.” - Laura Perkins

“I think the more that the government is able to show examples of the application of this increased benefit for exceptionally cooperating recidivists and ABB is actually a great example of that.” - Mike Huneke

Resources:

Hughes Hubbard & Reed website

Laura Perkins on LinkedIn

Mike Huneke on LinkedIn

John Wood is a former Hughes Hubbard partner; he serves as Investigative Counsel on the January 6 Committee. He is well known for his work with the Bush administration, where he worked at the Justice Department, White House and Department of Homeland Security.

Key ideas you’ll hear in this episode:

• The January 6th attack on the Capitol investigation was conducted by five teams, with a bipartisan committee and one staff. Documents were crucial to the investigation and legal strategies were used to obtain them. The National Archives produced a significant number of documents, while electronic documents were quickly obtained from witnesses through subpoenas, text messages and email accounts.
• Some witnesses were less compliant or refused to cooperate and the House held some in criminal contempt. The Fifth Amendment was respected, but the investigation was frustrated by some who claimed it as a defense. 
• The public hearing was divided into topical sections and used video and live and deposition testimony to create a compelling story for the American people. 
• John questioned Judge Ludic, a former clerk and conservative expert witness. The hearing was more structured and scripted, but with surprises and led by members of Congress and senior investigative counsel.
• The report was intentionally detailed with specific citations to documents and transcripts for backup, time-consuming to write, but important to have as buttoned up as possible to prevent denial by the former President or his allies. 
• The hope for the legacy of the committee is to prevent something like January 6 from happening again, and to put partisanship and politics aside to work for the country. 
• John recommends a book, "Scavenger Hunt" by Chad Boudreaux, as a fun and informative read.

KEY QUOTES:

“In terms of the [January 6 Committee] investigation, while obviously there were differences of opinion on how to proceed with certain things with strategy or tactics to use, it was never based on political or party affiliation.” - John Wood 

Resources

Hughes Hubbard & Reed website

John Wood on LinkedIn

Scavenger Hunt - Chad Boudreaux

Amina has been with the firm since graduating law school and has a wealth of experience in the crypto world, handling cross-action security litigation and helping clients navigate the uncertain regulatory and enforcement landscape in the US. 

Key ideas you’ll hear in this episode:

• FTX was the second largest crypto exchange. It was a sprawling group of over 100 entities headquartered in the Bahamas. It offered a crypto derivatives exchange for trading futures on a margin, but not available to US customers.
• Sam Bankman-Fried was the founder of FTX. Alameda Research was a sister company and one of FTX’s biggest customers, but also borrowers. Money seemed to flow between and through all of the entities in an unusual way which led to the failure and lack of control.
• The collapse of FTX has brought scrutiny on the SEC's role in regulating crypto. However, the SEC's position is that they already have a regulatory structure in place and will continue to enforce it.
• The SEC has been the most active regulatory agency for crypto enforcement, but other agencies, such as the CFTC, FTC, and CFPB, will likely become more active in enforcing regulations in the crypto space.
• Sophisticated investors such as pension funds, hedge funds, and large wealth management funds invested nearly a billion dollars in FTX despite having fewer financial statements than the average individual.
• The FTX scandal is a wake-up call for institutional investors to improve their due diligence in the crypto space. This should include understanding the technology and asking the right questions, such as how wallets are kept and stored.
• The aftermath of the collapse of FTX may mean challenges for its competitors, such as Coinbase or even Bitcoin.
• The SEC has taken an enforcement-centric approach towards crypto and has not indicated any plans for rulemaking in 2023.
• There have been calls for more clarity in existing regulations for the crypto space and for possible specialized agencies like FINRA to be created for the crypto industry.

KEY QUOTE:

"One of the key takeaways from the FTX scandal is really the complete failure and lack of controls." ~ Amina Hassan

Resources

Hughes Hubbard & Reed website 

Amina Hassan on LinkedIn

Kevin Abikoff is partner and Deputy Chair at Hughes Hubbard, and Chairman of the firm’s Anti-Corruption & Internal Investigations Practice Group. He specializes in securities and white-collar criminal litigation, enforcement, regulation and counseling with an emphasis on the representation of entities in anti-corruption (including FCPA) matters.

Key ideas we discuss in this podcast:

• The DOJ has instituted a new requirement for CCOs to certify that their programs are "reasonably designed" to detect and prevent violations of the law.
• The potential for liability as a CCO.
• How this new requirement may pressure CCOs to go beyond their usual duties in order to make the certification.
• Corporate governance as a remediation of the CCO certification requirement.
• The board of directors should be responsible for overseeing corporate compliance programs, rather than just nominally doing so.
• The DOJ listens to commentators and evolves in their own thinking.

KEY QUOTE

“Part of the narrative [for CCO certification] is that it gives CCOs a seat at the table. If you don’t have a seat at the table after you've gone through a FCPA enforcement action, I think there are bigger problems.” - Kevin Abikoff

Resources

Hughes Hubbard & Reed website 

Kevin Abikoff on LinkedIn

Kevin Carroll is a partner in the firm’s Washington and New York offices, in its white collar and investigations practices. He represents businesses, senior executives, and government officials in congressional and criminal investigations, conducts internal investigations, and litigates national security claims.

Key ideas we discuss in this podcast:

• The US federal government has used various methods of collecting information since the 19th century. As time went on, these capabilities were found to be abused and used unconstitutionally against US citizens. FISA, or the Foreign Intelligence Surveillance Act of 1978, was created to provide the federal government with rules for gathering information without infringing on citizens' Fourth Amendment rights.
• Attorney Durham’s investigations into corruption and the failures to successfully prosecute those involved.
• The average federal magistrate has substantial experience with the criminal justice system. 
• The FBI should only allow their sworn academy-trained agents or, when appropriate, partner with CIA case officers who are graduates of the field tradecraft course, to conduct counterintelligence operations investigations.
• The difference between signals intelligence and human intelligence.
• The importance of very robust anti-corruption programs when conducting business and humanitarian efforts in Ukraine.

Resources

Hughes Hubbard & Reed website 

Kevin Carroll on LinkedIn

Durham Russia Probe Acquittals Show Need For FISA Reform

Phillip Giordano is a partner in the Hughes Hubbard Antitrust Group, focusing on a variety of national and international antitrust matters, including complex criminal antitrust investigations and litigation, civil non-merger government investigations, and mergers and acquisitions. Philip also personally practices in the area of criminal defense.

Key areas we discuss in this podcast:

• LiveNation and Ticketmaster have been on the DOJ’s radar for quite some time.
• Defining vertical and horizontal integration.
• Why the DOJ was concerned about the primary ticketing market.
• Ticketmaster has been criticized for raising ticket prices after the website crashed due to high demand. There was an outcry because before it crashed, Ticketmaster's algorithms raised ticket prices to four or five figures.
• Analyzing a concentrated market.
• Surge pricing in one market can help the market function competitively in another market.

Resources

Hughes Hubbard & Reed website 

Philip Giordano on LinkedIn

Key areas we discuss in this podcast:

• The commentary on mergers in the FCPA space is largely around post-acquisition.
• The reason for pre-acquisition due diligence.
• Questions a potential acquirer should ask before buying a business.
• Even if they don't have a program for some voluntary due diligence, sellers with nothing to hide shouldn’t be scared of buyers asking questions.
• In advance of a sale, ensure you have clear records of tax considerations and that they are ready to be shared.
• The basic mandates from the DOJ around post-closing.

Resources

Hughes Hubbard & Reed website 

Mike Huneke

Anti-Corruption Due Diligence Can Help Buyers, Sellers, and Their Advisers to Facilitate Acquisitions

Kevin Carroll is a partner in the firm’s Washington and New York offices, in its white collar and investigations practices. He represents businesses, senior executives, and government officials in congressional and criminal investigations, conducts internal investigations, and litigates national security claims. Kenyen Brown, a partner in the firm’s Washington office, focuses primarily on white-collar criminal litigation and compliance counseling, including matters involving the Foreign Corrupt Practices Act (FCPA) and internal and government investigations. With his extensive white-collar litigation experience and refined judgment, Kenyen served as U.S. Attorney for the Southern District of Alabama, to which President Barack Obama appointed him.

Key areas we explore on this podcast are:

• Why the Jan 6 Committee report would not be a complete investigation unless they ask former Vice President Pence about what he observed that day.
• Because of the constitution of the Committee itself, there has been an absence of partisan rancor, which allowed them to tell a narrative from an investigative standpoint. The American people found this very valuable.
• The influence of technology in public hearings and investigations. 
• The significance of the Jan 6 Committee report.
• People may get down into the semantics of what the President knew and argue the policy behind whether or not it was an insurrection, but at the end of the day, people were fearful for their lives. 
• The clarification of the Electoral Count Act. 

Resources

Hughes Hubbard & Reed website 

Kevin Carroll on LinkedIn

Kenyen Brown on LinkedIn

Tyler Grove has worked at Hughes Hubbard for over 10 years, starting as a paralegal and then working his way up to full-time associate before taking the position of counsel. Tyler’s specialties include sanctions and export controls in addition to anti-money laundering and foreign investment issues. His practice has three main areas: compliance counseling, enforcement and investigations, and corporate diligence and filings.

Key areas we explore on this podcast are:

• The genesis of Executive Order 14083 relating to CFIUS, and what it entails.
• It’s become a standard follow-up question when making CFIUS filings to ask about a US business’ cybersecurity policies.
• What is excepted foreign state? 
• The Biden administration has conducted a holistic approach to business issues that may not have been considered national security issues in the past. 
• CFIUS has been a flexible tool for the Biden administration to apply foreign policy.
• How companies should be prepared to respond when asked to provide information or assistance in a CFIUS review.

Resources

Hughes Hubbard & Reed website 

Tyler Grove on LinkedIn

Laura Perkins is a Hughes Hubbard partner whose practice focuses on representing clients in Foreign Corrupt Practices Act and white-collar criminal investigations, including government enforcement actions and compliance counseling. She also advises clients on issues related to the FCPA, the federal securities laws, the False Claims Act, and other federal statutes.

Key areas we explain on this podcast are:

• How the Monaco Memo instructs prosecutors to evaluate the prosecution of individuals responsible for corporate crime.
• The Monaco Memo is guiding prosecutors to charge more foreign individuals as opposed to less.
• Steps a company can take to show timeliness to the DOJ.
• The Memo underscores the DOJ’s desire for companies to self-report misconduct that they become aware of.
• Previously, in determining whether a monitorship was appropriate, prosecutors would look at what state your compliance program was in at the time of resolution.
• The importance of clear communication in understanding the DOJ’s expectations.

Resources

Hughes Hubbard & Reed website 

Laura Perkins on LinkedIn

The Hughes Hubbard & Reed website has been updated with the following Anti-Corruption & Internal Investigations advisory:

Cutting Through the Noise: Take‑Aways from the DOJ’s Recent Announcements Regarding Corporate Criminal Enforcement

On September 15, 2022, Deputy Attorney General Lisa Monaco announced a series of policy revisions to the U.S. Department of Justice’s approach to criminal enforcement actions against corporations. At a high-level, these new policy revisions show the Department’s desire to take an approach to criminal enforcement that targets the individuals directly responsible for corporate misconduct and encourages companies to assist in preventing misconduct by creating effective compliance programs and cultures. Companies should carefully review these policy changes and identify steps they can take to put themselves in the best position possible should they be subject to a criminal investigation in the future. 

For our discussion about these developments, follow this link to our website.

Practice Co-Chair Laura Perkins will cover this topic in-depth in an All Things Investigations podcast, which will be released on Monday, Sept. 26.

Mike Huneke is a partner in the firm’s Washington office. Among many other things, Mike advises clients on the navigation and resolution of multi-jurisdictional criminal or Multilateral Development Bank (MDB) anti-corruption investigations, assisting companies subject to post-resolution monitorships or other commitments, and designing and executing risk-based strategies for due diligence on third parties.

Key areas we discuss on this podcast are:

• Explaining the new CCO certification policy the DOJ has released.
• The DOJ has likely made changes to CCO certification policy due to a significant feeling of mistrust about the adequacy of some companies’ compliance with the terms of settlements.
• How has the DOJ evolved?
• Reasonableness is not a factual basis. 
• Companies with full transparency are unlikely to have conflicts due to the recent changes in CCO certification.
• What is the role of the monitor?

Resources

Hughes Hubbard & Reed website 

Mike Huneke

Kevin Carroll is a partner in the firm’s Washington and New York offices, in its white collar and investigations practices. He represents businesses, senior executives and government officials in congressional and criminal investigations; conducts internal investigations; and litigates national security claims. He is a former CIA Case Officer and a writer whose work has been published in the Wall Street Journal, Washington Post, and Bloomberg Law.

Key areas we discuss on this podcast are:

• How the DOJ protects the President’s Black Book of Options in the event of a nuclear attack.
• It’s certainly irresponsible if a congressman or a senator goes to the well of the House of the Senate and reads classified information into the record, but constitutionally, they can’t be prosecuted for it.
• The counterintelligence section of the DOJ is responsible for investigating and prosecuting espionage.
• What is the National Archives?
• The role of the Secret Service in the execution of warrants.
• There's a statute in the Classified Information Protection Act (CIPA) that allows classified information to be shown to a defense lawyer who has security clearance.

Resources

Hughes Hubbard & Reed website 

Kevin Carroll

Key areas we discuss on this podcast are:

• US companies should know the top things about anti-bribery and anti-corruption enforcement in China in 2022.
• What China’s anti-corruption enforcement looks like in the healthcare sector.
• Under China’s Personal Information Protection Law (PIPL), you must first pass a security evaluation under the Cybersecurity Administration of China (CAC) before transferring data overseas.
• The concept of companies proactively cooperating with the authorities by providing the information is still new in France. 
• How the French component of Airbus enforcement action affected French prosecutors.
• The French blocking statute was designed to force US authorities through MLAT to get information.

Resources

Hughes Hubbard & Reed website 

Christine Kang on LinkedIn

Bryan Sillaman on LinkedIn

Diego Duran is a Hughes Hubbard partner and criminal defense attorney licensed to practice in some parts of the US and Mexico, where he spent several years working for one of its top boutique law firms. Salim Saud is an attorney and partner based in Rio de Janeiro, Brazil, at Saud Advogados, in association with Hughes Hubbard. He specializes in anti-corruption and is also the coordinator of the Anti-Corruption Compliance practice at FGV.

Key areas we discuss on this podcast are:

• The Mexican administration’s approach to anti-corruption investigation and enforcement.
• Corporate criminal liability is a fairly recent concept in Mexican law.
• Mexico’s National Digital Platform is anticipated to be a centralized database designed to host and process information about federal and state officials.
• Brazil has two systems for anti-corruption enforcement; one is led by the CGU and AGU, and the other is led by the NPF.
• Assessing the impact of COVID-19 on Brazilian anti-bribery and anti-corruption investigation and enforcement efforts. 
• Highlights of Brazil’s recent regulations surrounding their anti-corruption law, the Clean Companies Act.

Resources

Hughes Hubbard & Reed website 

Diego Duran on LinkedIn

Salim Saud on LinkedIn

Laura Perkins is a Hughes Hubbard partner whose practice focuses on representing clients in Foreign Corrupt Practices Act and white-collar criminal investigations, including government enforcement actions and compliance counseling. Jan Dunin-Wascowicz is an expert in cross-border compliance and regulatory enforcement, multi-jurisdictional internal and government investigations, as well as transnational litigation and international arbitration in both commercial and investor-State contexts.

Key areas we discuss on this podcast are:

• How increased attention to anti-corruption compliance led to increased arbitration.
• The Biden administration has taken a strong position that foreign corruption and corruption in general can be a serious national security concern for the United States.
• Red flags are tools that identify risk areas of inquiry.
• The outcomes that can arise when a claim of corruption is brought up defensively or against a defendant.
• The types of cases that tend to attract anti-robbery and anti-corruption issues.
• Compliance professionals should properly document their due diligence activities.

Resources

Hughes Hubbard & Reed website 

Laura Perkins on LinkedIn

Jan Dunin-Wascowicz on LinkedIn

Philip Giordano is a partner in the firm’s Antitrust Group, focusing on a variety of national and international antitrust matters, including complex criminal antitrust investigations and litigation, civil non-merger government investigations, and mergers and acquisitions. Philip also personally practices in the area of criminal defense.

Key areas we discuss on this podcast are:

• The biggest changes in the Department of Justice over the last 18 months. 
• An expected area of expanded enforcement and guidance is going to be in the area of potential competitors, and acquisition of potential competitors and of nascent competitors.
• It’s likely that merger reviews are going to take longer.
• Expanding the reach of antitrust laws.
• You typically do not see wage agreements in no-poach clauses.
• Whether Philip expects the Biden administration to maintain their aggressive enforcement and review of mergers and acquisitions.

Resources

Hughes Hubbard & Reed website 

Philip Giordano on LinkedIn

Tyler Grove has worked at Hughes Hubbard for over 10 years, starting as a paralegal and then working his way up to a full-time associate before taking the position of counsel. Tyler’s specialties include sanctions and export controls in addition to anti-money laundering and foreign investment issues. His practice has three main areas: compliance counseling, enforcement and investigations, and corporate diligence and filings.

Key areas we discuss on this podcast are:

• The differences between the Biden administration’s sanctions vs. those of the past.
• The US has imposed a soft embargo on any items subject to its jurisdiction and classified on the commerce control list.
• How soon we will be able to see the effectiveness of the Biden administration’s embargo.
• We will likely see an expansion of the sanctions imposed for human rights.
• It’s important that companies are aware of their suppliers, and how their products are being manufactured.
• Anti-boycott issues in China.

Resources

Hughes Hubbard & Reed website 

Tyler Grove on LinkedIn

Kevin Carroll is a partner in the firm’s Washington and New York offices in its white-collar and investigations practices. Kevin represents businesses, senior executives, and government officials in congressional and criminal investigations, conducts internal investigations, and litigates national security claims. Kevin also helps counsel businesses on CFIUS/FIRRMA, cyber security and data privacy, EAR/ITAR, FARA, FCPA, FISA, FMS, and OFAC compliance. Kevin is a Colonel in the United States Army Reserve and a writer whose work has been published in the Wall Street Journal, Washington Post, and Bloomberg Law.

Key areas we discuss on this podcast are:

• The role of an attorney in a congressional committee around the investigation.
• Lawyers in a US attorney’s office are, to a degree, dependent on the cases that the FBI or district police bring them.
• How Kevin advises clients through congressional investigations.
• Congress is under no obligation to recognize attorney/client privilege. 
• Preparing a witness for a congressional hearing.
• Concerned citizens can raise issues that could lead to congressional investigations. 

Resources

Hughes Hubbard & Reed website 

Kevin Carroll

Michael A. DeBernardis is a partner in the firm’s Washington office and a member of the firm’s Anti-Corruption and Internal Investigations and White Collar & Regulatory Defense practice groups. Michael assists clients with internal investigations relating to high-stakes matters including bribery and corruption under the Foreign Corrupt Practices Act, procurement fraud, financial and accounting fraud, money laundering, and other ethics issues and violations of company policy. Michael has represented clients in connection with inquiries by the U.S. Department of Justice, U.S. Securities and Exchange Commission, and U.S. Senate Permanent Subcommittee on Investigations, among others.

Key areas we discuss on this podcast are:

•  Q1 brought resolutions that were excellent examples for training and increasing understanding of compliance issues.
•  One of the more difficult aspects of compliance is scoping investigations.
• View input from your monitor as an opportunity to truly improve your processes, procedures, and controls. Having a positive relationship with them is hugely valuable.
• Developing an investigation plan and protocols is an iterative process.
• Changes to the SEC Whistleblower program.
• Anti-corruption implications of the Russian invasion of Ukraine.

Resources

Hughes Hubbard & Reed website

Mike DeBernardis 

Coburn and the Attorney/Client Privilege

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. He is the former US Attorney for the Southern District of Alabama. He also served on the Senate Ethics Committee. Kenyen’s practice focuses primarily on white-collar criminal litigation, and compliance counseling, including matters involving internal and government investigations. In this area, Kenyen has performed compliance program reviews, audits, and risk assessments.

Key areas we discuss on this podcast are:

• Role as the US Attorney for the Southern District of Alabama.
• Role on the Senate Ethics Committee? Key accomplishments.
• Working with police departments and their communities to identify systemic racial and gender discrimination issues.
• The ‘S’ in ESG in racial and gender discrimination issues.
• The important of managing reputational through a robust ESG program. 

Resources

Hughes Hubbard & Reed website

Kenyen Brown bio

Anti-Corruption and Internal Investigations Practice Group

Mike Huneke is a Hughes Hubbard & Reed partner who has spent his career in both Washington, DC and Paris, France. For his entire 17-year career Mike has been practicing in the anti-corruption space, on everything from investigations and government resolutions, acting as “buffer counsel” to companies subject to compliance monitors, third party and M&A due diligence, and proactive risk assessments and second-level compliance reviews. Most recently, Mike and his Hughes Hubbard colleagues were recognized for their role on the Airbus case by Global Investigations Review.

Key areas we discuss on this podcast are:

• Individual defendants are wildcards in matters involving privilege claims in FCPA investigations.
• The dangers of the over-assertion of privilege to the DOJ and to the Courts.
• The false comfort of “oral” disclosures.
• The “personal jurisdiction” discussion by the Court.
• Beware civil discovery in criminal cases. 

Resources

Hughes Hubbard & Reed website

Mike Huneke bio

Anti-Corruption and Internal Investigations Practice Group

US v. Coburn, Judge McNulty decision