FCPA Compliance and Ethics Blog

April 15, 2011

15 (FCPA) Blogs Sites to Check Out on April 15

For some time now I have wanted to write about who I read and why, so in honor of April 15, I thought it might be a good idea to list 15 favorite blog sites. Below is a list of my favorites and as this blog provides my spin on all things related to the Foreign Corrupt Practices Act (FCPA) arena here we go…

The First Blog I Read Each Day

FCPA Blog/FCPA Professor – I know I said “the” first but it is always one of these two, depending on how early in the morning it is and where the mouse pointer ends up when I make the first click. But regardless of which I read first, here is why they are the first.

FCPA Blog – Richard Cassin is the ‘Dean’ of FCPA bloggers. If you want to know what is going on in the FCPA, or wider compliance world on a once, twice or thrice times daily basis, this is the blog for you. In addition to Dick’s own posts, he gets the crème-de-la-crème of the world’s anti-bribery and anti-corruption writers to send in posts. If the FCPA Blog didn’t exist, someone would have to create it and fortunately for us Dick has done so.

FCPA Professor – Professor Mike Koehler on all things ‘legal’ in the FCPA world. If you want to know the latest Department of Justice (DOJ), Securities and Exchange Commission (SEC), federal court or anything else FCPA-thinking, from the law perspective, this is the blog for you. Always insightful, and provocative, if you want to hone your Socratic method, parry and thrust via email with the Professor. I guarantee you will learn quite a bit, I know I have.

After I get through these I tweet about them so everyone else can enjoy their collective wit and wisdom then it’s off to the following sites…

Corporate Compliance Insights – A collection of all things compliance, with a starting rotation and bullpen of great authors and contributors. But more than simply blogs, it has job postings, career advice and a broad list of resources for the compliance practitioner. And here’s the best part-it’s all free. Maurice Gilbert and his team have put together an outstanding compliance resource.

Open Air Blog – How can one best describe Howard Sklar’s blogging; withering, skewering, contrarian; he describes himself as “a crusty, irascible curmudgeon.” Here’s how I would describe Howard – one of the best compliance practitioners and commentators around. His insights are great and he uses the right touch of humor and real-world examples to get his point across. His blog is great and a ton of fun to read so saddle up and enjoy the (compliance) ride.

Corruptions Currents – From the Wall Street Journal, Sam Rubenfeld and Joe Palazzollo blog all-day on all things related to the anti-corruption world; FCPA, AML, Whistleblowers, Sanctions and General Anti-Corruption are all covered in this blog. Both journalists were jointly named by Ethisphere as one of the 100 most influential folks in the anti-corruption world. Great coverage, great insight AND it’s from the Wall Street Journal.

From across the pond…

thebriberyact.com – If you only have one resource for all things UK Bribery Act related, you could not find a better site. Barry Vitou and Richard Kovalevsky have put together that rarest of all blog sites, one that covers an entire subject in-depth, with both practical insight and analysis. Their interviews of the relevant players allow all compliance practitioners to develop insight into what the top UK regulatory officials are thinking about on the Bribery Act.

From North of the Border…

i-sight investigation blog – Lindsey Khan provides excellent insight on a wide variety of compliance topics. As with most advice we Americans receive from our Canadian cousins, her blogging is direct with practical guidance on how to navigate compliance challenges. She often provides Templates with her blogging to give you specific guidance on the ‘how to’ of compliance. So get thee to the Great White North and check out i-sight.com

The Business Ethics Blog – Chris MacDonald teaches Philosophy, including business ethics, at Saint Mary’s University and fortunately for the rest of us, he blogs. If you believe either “a) that corporations have a god-given right to accumulate as much capital as possible without regard for who gets hurt along the way; or b) that all corporations, and all people who work for them, are inherently evil, you will probably be irritated by [his] blog.” However, the rest of us can learn quite a bit from this thought provoking blog.

For Export Control…

International Trade Law News – My favorite site for all things trade compliance. Fellow UT Longhorn Doug Jacobsen has put together a great site for export controls, sanctions, customs law, FCPA, antidumping and other international trade issues. He touches on the FCPA from time-to-time but he is “The Man” for me to catch up with all issues relating to export control.

Subscription Required – Sorry but you have to pay to read these great blogs…

Compliance Week Blogs – Matt Kelly has put together a plethora of all-star bloggers for his publication Compliance Week. Bruce Carton on the SEC; Melissa Aguilar on Regulatory Developments; Tammy Whitehouse on Accounting and Auditing; Neil Baker with his Global Perspectives; Jaclyn Jaeger with the Scuttlebutt and the Man, Matt Kelly himself. Any of these bloggers would be worth a solo listing but to have them on one site is fantastic.

JustAnti-Corruption – Editor Mary Jacoby and Reporter Chris Matthews blog throughout the day on anti-corruption and anti-bribery issues from a DC perspective. Both are great journalists and both have first-class sources. It puts information to us out in the provinces (as in ‘Outside the Beltway’) on what the DOJ is doing and thinking on all things FCPA.

Aggregators-they put it all together for you.

MyCorporateResouce-Nick Montgomery is the hardest working man I know of in the blogosphere world. He manages to post literally hundreds of blogs each day, all focused for the in-house corporate lawyer. He has a specific FCPA site, which is found in the Client Memos, International Trade Sub Menu, Foreign Corrupt Practices Act. He posts blogs from Blue Chip law firms so the information is well, blue chip. It is a fabulous resource for all things an in-house counsel would need to know and a wonderful FCPA resource.

Law Agents-this site announces that “With over 1,400 subscriptions by users, lawgents.com is the internet’s largest free law related news and blog aggregator.” How is that for an opening line. Best of all, its free and you can join, post or just use as a resource.

New Kids on the Block – Note I didn’t say young but these two guys have recently started blogging and from what I know of them, their stuff will be high quality.

Internal Investigations Blog – Cleveland attorney Jim McGrath focuses on all aspects of investigations relating to anti-corruption, anti-bribery, corporate fraud and employee-related theft. His blog is broader than simply the FCPA but just imagine the results of L’Affaire Renault if that company had read Jim’s blog before firing the soon to be multi-millionaire ex-employees.

White Collar Defense and Compliance – and finally… Mike Volkov has started up his own blog. For anyone who has heard Mike speak or read any of his Client Alerts you know this guy knows his stuff. I often wonder how he puts out so much material and manages to practice law, but he does and we, and the greater compliance world, are better for it. So check him out, as in now.

So that is my 15 ‘faves’ list. If you are not on it, please don’t take it personally, I’m sure that I read your blog and tweet about you.
So while you sit and contemplate my 15 favorites remember its April 15th and if you haven’t done your taxes yet…get that extension filed…

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2011

April 7, 2011

A Modern Fairy Tale: The Company Which Cried Wolf or Lessons Learned from L’Affaire Renault

Once upon a time there was a boy who went to the town square and cried “The Wolf is coming to steal our secrets!” The townspeople all gathered ‘round and asked him how he knew this. “A person named NoMan told me,” he declared. But there was more, as the boy told the now rapt townsfolk “And he said if you give me some money to help pay his ‘expenses’, I can find out when and how the Wolf  will steal our secrets.” As this town was in France, they immediately gave the boy €450,000 (or €700,000 depending on the version of the fairy tale) and he and the money were never seen again.

I. The Tale

Most people in the compliance world have by now heard about L’Affaire Renault. As reported  extensively in the Wall Street Journal (WSJ), the affair became public in January of this year, when Renault fired three top officials for allegedly selling secret information regarding the company’s electric car program. These allegations were based upon information which came from an unknown informant who claimed that the three terminated officials had large Swiss bank accounts funded by monies which came from the sale of this information. This unknown informant was paid for his information, by two Renault security department employees, and then allegedly onto another party, who eventually passed along some or all of the Renault payment to the informant.

If all of this sounds confusing, well it is. The inquiry began last August with an anonymous letter to company officials stating that one of the now terminated employees was overheard “negotiating a bribe”. By December, the company’s security department had “assembled elements pointing to the existence of bank accounts in Switzerland and Liechtenstein.” The accused employees were terminated in January, 2011. On March 14, the WSJ reported that “state prosecutor Jean-Claude Marin on Monday said his investigation showed that the three didn’t have bank accounts in those countries.” On March 15, the WSJ reported that the Chief Executive Officer (CEO) of the French car maker Renault apologized on national television for the wrongful termination of three company officials for improper allegations of industrial espionage. In addition to this apology, he offered to meet the men and propose that they rejoin the company. They also would be offered compensation, “taking into account the serious hurt that they and their families have suffered…” This case (and the introductory fairy tale) presents several very large ‘Lessons Learned’ for any company which engages in an anti-corruption, anti-bribery or fraud investigation and then disciplines or terminates employees based upon the investigation.

II. The Moral

Look Before You Leap

Our colleague, Lindsey Khan wrote about Fraud Investigation Preparation in a two part series posted on her blog isight.com. Over this two part series, she reviewed author Stephen Pednealut’s book, “Anatomy of a Fraud Investigation”, in which he outlined the steps a company should take when preparing for a fraud investigation. Imagine where Renault might be if they had read Lindsey’s blog. I digress to say you should bookmark and read Lindsey’s blog as she regularly writes on investigations and even provides an investigation template on a complimentary basis.

The first thing to emphasize is that a company cannot over-prepare for such an investigation. With this in mind, here are seven steps he suggested a company should take before they begin a fraud investigation:

1. Timing. If the target(s) know you are on to them, they will have absconded so make this initial determination.

2. Strategize. Figure out who needs to be involved in the investigation and meet as soon as possible to explore options and discuss how they will move forward with the investigation, as each one differs based on the goals, circumstances and people involved.

3. Review laws, policies and other documents. Obtain everything of significance before you start the investigation and then secure it.

4. Available information. If your company uses outside investigators, make certain that they understand company structure, infrastructure and relationships.

5. Whistleblower protection and confidentiality. Although this information or source may need protection, the identity must be known and verified.

6. Lock down evidence. Physical and electronic evidence need to be gathered and secured as soon as possible.

7. Resource allocation. Make sure your company has the tools you need to gather evidence and label it properly for storage.

You Leapt, Now What?

Your actions after you have followed Pedneault’s seven preparation steps will be equally, if not more important. First and foremost your investigation must be thorough. In other words, if the key part of the allegation is that bribes were being funneled into a Swiss bank account, your company had better make certain this information is correct before you go and make that public pronouncement. You should endeavor to make certain that your company CEO does not, as reported in the WSJ, proclaim the statement made by the CEO of Renault when he said publicly “that the company had evidence against them” regarding the existence of foreign bank accounts. Over two months after this public statement, neither Renault nor the French Prosecutor’s Office had discovered such evidence to back up this allegation.

Keep A Sense of Balance

Attorney Stephen Pearlman, quoted in the WSJ, noted that a company must approach any such allegations “with a real sense of balance” and not “over-react.” Mr. Pearlman said he recently had a client who received an anonymous tip on some alleged wrongdoing and wanted to act before the investigation was done. “I told them, ‘You’ve got to take a deep breath, don’t overreact” he recalled.

Robert Fatovic, the chief legal officer at Ryder System Inc., also quoted in the WSJ, said “Renault is the poster child for why you want to approach these situations with a sense of balance, and not have people rush to judgment.”  Fatovic also noted that “By ending an investigation prematurely, you run the risk of a frivolous issue going public too soon.” Or having your CEO go on national television and personally apologize to those wrongfully accused.

Get Some Serious Advice

So how does a company tread through this minefield? If there are serious allegations made concerning employees engaging in criminal conduct a serious response is required. The first thing to do is hire some seriously good lawyers to handle the investigation. These lawyers need to have independence from the company so do not call your regular corporate counsel.  Do not send down Internal Audit or HR to take a look at things and report back. Attorney Jim McGrath, writing in Internal Investigations Blog, drives this point home by stating, “Despite the fact that using specialized investigation counsel is a best practice that is worth the money, one of the more difficult things is convincing decision-makers of the same… The Renault scandal reiterates the need of companies of all sizes to go outside to specialized counsel for sensitive inquiries.”

The hiring of outside counsel is also important because you will most probably have to deal with a government. If the investigation does reveal actionable conduct and you are in the US, your company will need legal counsel who is most probably an ex-Department of Justice prosecutor or ex-US Attorney to get your company through that process. Even if there is a finding of no criminal activity, you will need very competent and very credible counsel to explain the investigation protocol and its results to the government. If you are in the UK you need to hire someone with credible Serious Fraud Office- type experience or an ex-Crown Prosecutor. If you are in France, well you are in France.

There is a very good list of attorneys who specialize in the FCPA provided by my colleague Howard Sklar in his blog entitled “Getting Advice”. He knows the folks he listed personally and tells you their strengths. It is a great resource and now would be an excellent time to use it.

Don’t Pay Bounties to Unknown Persons for Unsubstantiated Rumors

A very troubling aspect of this case is the payment for the information. The payment itself has reportedly ranged from a high of €700,000 to €450,000 down to €250,000. It is not clear as to the timing of this payment but apparently the payment was handled by two security department employees, who handed it over to a third person, not the informant, who resided in Algeria. This third party in Algeria now cannot be located and the WSJ reported that initially “an employee in the security unit refused to disclose to Renault who ultimately received the money…” Reuters has reported that French criminal justice officials are now investigating the two security department employees regarding whom this anonymous source was and where the money went. The WSJ later reported that this employee, who has been in custody for a couple of weeks, has finally named this anonymous source.

Many US companies are worried about the impact of the Dodd-Frank Whistleblower provisions. However, a clear difference is that Dodd-Frank requires substantiated securities violation, as in an admission by a company, settlement agreement or judicial finding, for payment of any bounty rewards. In L’Affaire Renault, the company apparently paid a bounty to an unknown source, for unsubstantiated information, which did not result in any criminal finding or even a civil wrong. Whatever your company does DO NOT PAY BOUNTIES TO PERSONS UNKNOWN.

The moral of the fairy tale that started our piece and L’Affaire Renault is that your company needs to get it right. The costs for not doing so are simply too great.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2011

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