Representing Individuals in FCPA Civil and Criminal Investigations and Litigation

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 programs. Enforcement actions, civil and criminal, are continuing at pace and many times the agencies are going after individuals instead of the Company. The speakers on this panel discuss best practices to use when counseling an individual who has become the target of these investigations and possible litigations.



Outline

I. FCPA Investigations and Litigation
    A. Representing the Individual
    B. What's Happened in the Past
    C. How These Cases Differ From Representing a Company
        1. How Does an Individual Pay for Representation?
        2. Making the Representation Clear 
    D. The Investigation
        1. The Relationship With the Company
        2. Allowing Your Client to Be Interviewed
    E. Joint Defense Agreements
    F. Dealing With Other Lawyers
    G. Keeping Your Client Out of Jail
    H. Government Interviews
        1. Getting Credit for Cooperating
        2. Client in Foreign Land 
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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 Kevin J. Harnisch

Kevin J. Harnisch
Fried, Frank, Harris, Shriver & Jacobson LLP

Kevin J. Harnisch is a partner and co-head of Fried, Frank, Harris, Shriver & Jacobson LLP 's Anti-Corruption Compliance and Enforcement (FCPA, UK Bribery Act) practice area and is resident in the Firm's Washington, D.C. office. He joined the Firm in 1999 and became a partner in 2004.

Mr. Harnisch concentrates his practice in the areas of securities enforcement defense, securities litigation, anti-corruption counseling and enforcement, and internal investigations. He represents clients before the United States Securities and Exchange Commission, self-regulatory organizations, Department of Justice, U.S. Attorney's Offices and federal courts. Mr. Harnisch has represented corporations and their officers and directors, hedge funds, broker-dealers, investment banks and auditors.

Prior to joining Fried Frank, Mr. Harnisch was a Branch Chief in the Division of Enforcement of the SEC. While at the SEC, he led cases regarding financial fraud, market manipulation, insider trading, the Foreign Corrupt Practices Act and municipal bond offerings. Mr. Harnisch has authored numerous articles and he frequently lectures on anti-corruption issues and federal securities law issues.

Mr. Harnisch received his J.D., magna cum laude, from Seattle University School of Law in 1995, and his B.B.A., magna cum laude, from the University of Notre Dame in 1992.

Photo of Jay Holtmeier

Jay Holtmeier
Wilmer, Cutler, Pickering, Hale, and Dorr LLP

Jay Holtmeier is a partner in Wilmer Cutler Pickering Hale and Dorr LLP's Litigation/Controversy Department‚ and a member of the Investigations and Criminal Litigation Practice Group. Mr. Holtmeier's breadth of experience as a litigator includes service as a federal prosecutor‚ a senior in-house attorney and a lawyer in private practice. Mr. Holtmeier represents institutions and individuals in complex government and internal investigations and matters of corporate governance and compliance. He has particular expertise in matters involving the Foreign Corrupt Practices Act (FCPA). In FCPA matters‚ Mr. Holtmeier has represented clients in government and internal investigations involving conduct in Europe‚ Asia‚ the Middle East‚ Africa‚ Latin America and Australia.

Among others, he has represented York International, Lufthansa Technik/BizJet, and Paul Jennings (former CEO of Innospec) in their FCPA settlements. He regularly counsels clients facing difficult FCPA issues in a variety of business contexts‚ and he has assisted clients in numerous industries in developing and implementing FCPA compliance programs. He devotes substantial attention to advising clients on FCPA problems that arise in the context of mergers and acquisitions‚ joint ventures and other corporate transactions. He is co-author, with partners Roger Witten and Kimberly Parker, of the leading treatise in the field, Complying with the Foreign Corrupt Practices Act (7th ed. 2010, 8th ed. forthcoming 2013).

Mr. Holtmeier is admitted to the New York Bar. He received his J.D., magna cum laude, from Cornell University Law School in 1990 and his B.A. from the University of Minnesota in 1986.

Photo of Andrew T. Wise

Andrew T. Wise
Miller & Chevalier

Andrew T. Wise is the Vice Chair of the Litigation Department of Miller & Chevalier. He represents individuals and business organizations in complex criminal trials in federal and state courts and defends clients in criminal, regulatory, and administrative investigations. He has defended clients in cases involving securities, tax, and honest services fraud allegations. In addition, he has extensive experience handling cases involving investigation-related offenses such as perjury, false statements, and obstruction of justice. Mr. Wise has tried more than 50 cases to resolution before juries and judges in Federal and state courts.

In addition to his trial work, Mr. Wise has conducted internal investigations into potential violations of U.S. laws and regulations, including the Foreign Corrupt Practices Act (FCPA), the Internal Revenue Code, and the False Claims Act. He has extensive experience with issues that arise in the context of such investigations and has helped clients navigate the challenges presented by simultaneous criminal investigations and civil proceedings. Mr. Wise has also advised clients, as well as written and spoken extensively, on the enforcement and compliance challenges, including whistleblower issues, presented by complex federal laws applicable to publicly-traded companies, including Dodd-Frank and Sarbanes-Oxley.

Mr. Wise has been named as one of Washington’s top trial and white collar crime lawyers by Washingtonian Magazine. In addition, he has been recognized by Ethisphere Institute as one of the “Attorneys Who Matter” because of his work in the enforcement and compliance areas.

Before joining Miller & Chevalier, Mr. Wise worked at the Public Defender Service for the District of Columbia, where he defended indigent clients charged with serious criminal offenses in the District of Columbia Superior Court.

Mr. Wise is admitted to the District of Columbia and Virginia Bars. He received his J.D., cum laude, from The University of Michigan Law School in 1997, and his B.A. from Swarthmore College in 1992.

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Details

Course Code : 773106

Release Date: 6/24/2013 12:00:00 AM
Recorded Date: 2/27/2013
Length: 54min
Format Type: Video

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