Reviewing The SEC and DOJ FCPA Resource Guide

Synopsis

The Foreign Corrupt Practices Act [FCPA] has become one of the focal points of the Securities Exchange Commission's and the Department of Justice's enforcement program. In response to the many questions surrounding the enforcement of the FCPA, the SEC and DOJ combined efforts and produced "A Resource Guide to the U.S. Foreign Corrupt Practices Act" to provide a thorough look into what the departments feel are important points for companies to be concerned about, while providing guidance on how to comply with the FCPA.



Outline

I. The Governing Guide to the FCPA
    A. The Lay of the Land
    B. Why a Guide?
    C. Prosecutorial Discretion and  Priorities
    D. A Defense Attorney's Reaction to the Guide 
    E. The Opinion Release Process
    F. More on the Opinion Release Process
    G. The "Nuts and Bolts" of the Guide
    H. Guide Hypotheticals
    I. Hallmarks of Effective Compliance
        1. Advising Your Clients
        2. The Role of the Compliance Officer 
    J. The Declination of Cases
        1. The Morgan Stanley Case
        2. Is This a Trend?
    K. Wrap-Up
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The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.

 





Speakers / Authors:

Photo of Greg Andres

Greg Andres
Davis Polk & Wardwell LLP

Greg Andres is counsel in Davis Polk’s Litigation Department, concentrating in white collar criminal defense and representing clients in both civil and criminal trials.

Mr. Andres returns to Davis Polk after more than 12 years as a federal prosecutor in both New York and Washington DC. Most recently, he served as a Deputy Assistant Attorney General in the Criminal Division at the Department of Justice where he supervised both the Fraud and Appellate Sections, among others. In that capacity, he managed many of the Division’s white collar prosecutions, including the Department’s Foreign Corrupt Practices Act (FCPA) program and various health-care fraud initiatives. He also represented the Department on these issues before Congress, testifying before both houses.

Previously, Mr. Andres served as Chief of the Criminal Division in the U.S. Attorney’s Office for the Eastern District of New York, where he supervised more than 100 federal prosecutors in a wide range of investigations and prosecutions. He has tried and supervised a variety of high-profile cases involving financial fraud, organized crime and terrorism offenses. He served as the lead prosecutor at the trial of former Credit Suisse broker Eric Butler, who was convicted for a securities fraud scheme that cost investors approximately $1 billion. The Butler prosecution was one of the first and most significant trials stemming from the financial crisis.

He served on several task forces while at the Department of Justice, including the Financial Fraud Enforcement Task Force (and before that, the Corporate Fraud Task Force), the Health Care Fraud Prevention and Enforcement Action Team (HEAT), the Attorney General’s Sentencing and Corrections Working Group, the FBI’s Human Source Review Committee, and the Attorney General’s Advisory Committee Criminal Chiefs’ Working Group.  

Mr. Andres graduated from the University of Notre Dame in 1989 and the University of Chicago Law School in 1995, where he was a member of the University of Chicago Law Review. He has clerked for two federal judges: Honorable Judge Morton A. Brody on the United States District Court for the District of Maine and later for the Honorable Robert R. Beezer on the United States Court of Appeals for the Ninth Circuit. 

Photo of John D. Buretta

John D. Buretta

John D. Buretta currently serves as Deputy Assistant Attorney General for the Department of Justice Criminal Division. He has represented the Department before Congress and the Sentencing Commission in regard to the Department's fraud enforcement efforts, and oversees the Criminal Division's Fraud Section, among others, including the Fraud Section’s FCPA Unit. Mr. Buretta supervised the preparation of the joint DOJ-SEC Resource Guide to the U.S. Foreign Corrupt Practices Act, issued this past November, and has spoken frequently on FCPA enforcement matters.

 

In 2011, the Attorney General and Deputy Attorney General appointed Mr. Buretta as Director of the then newly-formed Deepwater Horizon Task Force, a leadership position he has continued while serving as DAAG. Prior to joining the Criminal Division, he served for eight years as an Assistant U.S. Attorney in the United States Attorney’s Office for the Eastern District of New York, and was Chief of that Office’s Organized Crime and Racketeering Section.

 

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Jeffrey Knox

Jeff Knox heads the DOJ's Criminal Division Fraud Section, which has primary responsibility for all FCPA criminal investigations and prosecutions in the United States, and some of the nation’s most significant securities fraud, health care fraud, financial fraud, and defense procurement fraud cases. He supervises more than 100 prosecutors in the Section’s three litigating units (FCPA, Securities and Financial Fraud, and Health Care Fraud) and policy areas.

Prior to his current appointment, Mr. Knox was the Fraud Section’s Principal Deputy Chief, and served in the FCPA Unit. Among other FCPA matters, he has investigated FCPA violations in the telecommunications and technology sectors, convicted the CEO and CFO of a Miami-based telecommunications company on FCPA charges, and charged eight former executives and agents of an international conglomerate in connection with a $100 million bribe scheme. He also was a contributor to A Resource Guide to the FCPA, published in November 2012 by the DOJ and SEC.

Prior to joining the Fraud Section, he was an Assistant U.S. Attorney in the Eastern District of New York, serving as Chief of the Violent Crimes & Terrorism Section. He has been the recipient of the Attorney General’s Award for Exceptional Service, the Attorney General’s John Marshall Award for Trial of Litigation, the Attorney General’s Award for Furthering the Interests of U.S. National Security, the Federal Law Enforcement Foundation’s Federal Prosecutor of the Year Award, and the EOUSA Director’s Award for Superior Performance.

Mr. Knox graduated with honors from Northwestern University School of Law in 1999.

Photo of Cheryl Scarboro

Cheryl Scarboro
Simpson Thacher & Bartlett LLP

Cheryl Scarboro is a partner in the Washington, D.C. office of Simpson Thacher & Bartlett LLP and a member of the Firm’s Government and Internal Investigations Practice. Ms. Scarboro represents corporations, financial institutions and individuals in SEC and other regulatory enforcement proceedings. She conducts internal investigations on behalf of management and boards of directors and counsels clients on Foreign Corrupt Practices Act (“FCPA”) compliance programs, SEC reporting, disclosure and corporate governance requirements.

Ms. Scarboro joined the Firm following a 19-year tenure at the Securities and Exchange Commission, most recently as the first Chief of the SEC’s FCPA Unit in the Division of Enforcement. While at the SEC, Ms. Scarboro led significant investigations involving a broad variety of subjects, including alleged violations of the FCPA, the Investment Advisers Act, issuer accounting fraud and other disclosure violations, market manipulation, broker-dealer misconduct and insider trading. 

As head of the SEC’s FCPA practice, Ms. Scarboro played a role in all of the SEC’s recent major FCPA cases and acted as the SEC liaison with the Department of Justice (DOJ) and regulators around the world. In particular, Ms. Scarboro led the SEC’s investigation of Siemens, A.G., which resulted in an unprecedented $1.6 billion settlement with the SEC, DOJ and German regulators, the largest settlement to date under the FCPA. She also led investigations that resulted in actions against 15 companies and three individuals charged with making illicit payments to the Iraqi government in order to win contracts under the United Nation’s Oil-for-Food Program. In a recent FCPA investigation of a Luxembourg-based global steel pipe supplier and manufacturer, Ms. Scarboro pioneered the SEC’s first use of a deferred prosecution agreement as a means of resolving the investigation in a manner that recognized the entity’s cooperation. 

Ms. Scarboro held numerous other roles while at the SEC, including serving as an Associate Director in the Division of Enforcement and as counsel to former SEC Chairman Arthur Levitt. In addition to FCPA matters, Ms. Scarboro was responsible for a number of significant financial fraud cases, including the SEC’s recent action involving Satyam Computer Services Limited, and several major insider trading cases, including the SEC’s recent action against a hedge fund manager alleged to have orchestrated a $30 million insider trading scheme.

She earned her J.D. from Duke University School of Law in 1989 and her B.A. from University of Alabama in Huntsville in 1986.

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Details

Course Code : 773103

Release Date: 5/23/2013 12:00:00 AM
Recorded Date: 2/27/2013
Length: 1hr 12min
Format Type: Video

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