Foreign Corrupt Practices Act

Join us as the DOJ and SEC Unit Chiefs provide updates on key developments over the last twelve months, and discuss upcoming enforcement priorities as we transition to 2024.

Key highlights include:

• Expectations for ephemeral messaging and clawbacks
• Corporate and individual enforcement updates
• Where industry has gone right and wrong on compliance
• Clarifying requirements for obtaining cooperation credit
• Insights on voluntary disclosures
• How the DOJ and SEC are working with international authorities

Don’t miss out as our panelists debate the pros and cons of the Program, with audience members selecting the winning team via anonymous audience polling! Debate topics include:

• Does the implementation of compensation or bonus clawbacks have the desired deterrent effect?
• Will this have the effect of rewarding companies while unduly penalizing individual employees?
• Is the linear connection between money and compliance realistic?
• Will this shift the burden of corporate wrongdoing away from shareholders onto those directly responsible?
• What are the actual requirements for a discretionary reduction?

During this critically important panel, speakers will unpack some of the biggest issues and worst case scenarios when trying to meet DOJ expectations for cooperation — and the latest best practices for mitigating multiple layers of liability risks:

• The dilemma with employee personal devices being used for bona fide work purposes
• Tensions and issues that can arise when employees refuse to cooperate with corporate policies
• Deciding whether or not to terminate an employee who refuses to cooperate
• Litigation costs and challenges in the context of privacy and message retrieval
• Revisiting your policy amid the interplay of GDPR risks
• Implementing an e-discovery program relating to messaging app
• When you can ask for employees’ personal devices for review
• Retaining counsel for the employee: Determining your obligations as an employer
• What can help to yield cooperation credit—and what has fallen short

• Concrete examples of program upgrades and compliance pain points
• Testing the effectiveness of your compliance program to show that it is: improving, adapting, and updating the program to ensure that it is sustainable and adapting to changing risks
• Reviewing the qualifications and expertise of your compliance personnel
• Rethinking resource allocation and delivery methods for training
• Fostering and sustaining a strong corporate culture
• Dashboards and other mechanisms for reporting

• Perspectives on what is “immediate”—and what is not
• Analyzing recent DOJ enforcement actions and announcements that define immediate and extraordinary cooperation
• When to involve outside counsel
• The finer points of effective communication with prosecutors
• Any benefits that may be available when a company does not self-disclose, but fully cooperates, and timely and appropriately remediates?

• How the shifting FCPA enforcement landscape in Africa compares to other high risk markets
• How to adapt your compliance program to the unique, heightened corruption risks associated with doing business in Africa
• Updating internal controls, corporate policies and procedures
• Developing a due diligence approach based on the appropriate risk levels associated with each third party, and across your supply chain
• The impact of recent legislative and enforcement changes
• Navigating cross-border investigations by U.S., African and more international authorities

• Factoring in geographical risks into due diligence methodologies
• Onboarding and classifying third party intermediaries and monitoring their activities
• Identifying new risks through the use of alternative diligence methods
• To what extent are companies responsible for the conduct of foreign subsidiaries and ongoing oversight of these entities?
• How much diligence is required on subcontractors and vendors
• New lessons for vetting and monitoring your supply chain amid increasing enforcement

• When to involve outside counsel and foreign advisors
• When and when not to investigate new or peripheral red flags
• Deciding if the internal investigation findings should be reported to the company’s board of directors, audit committee, and to U.S. and/or international agencies
• Managing the impact of foreign labor and privacy laws on the scope of internal investigations
• Budgetary impacts of cross-border investigations
• Avoiding inadvertent waivers of privilege — and considering the scope and limits of privilege protections in other jurisdictions

• How companies and financial institutions are evolving their programs in response to geopolitical tensions with China
• Special considerations for onboarding and monitoring third parties in China
• Revisiting interactions with local government officials and local agencies
• What does it mean to “cooperate” in the Chinese Government context
• Contrasting FCPA vs. local enforcement risks for local and multinational companies
• How the key local agencies communicate with companies, and approach regulatory approvals and investigations

This smaller-group discussion will take a deep dive into the potential worst-case scenarios that keep CCOs up at night. Explore what is on their legal radar and why it should be on yours — and the lesser-known rules for making the right calls under pressure.

• The top 5 risks to flag now, including FCPA, international trade and cybersecurity
• Making tough calls under pressure: Stories on hits and misses—and lessons learned
• Corporate Governance: Winning the board over and resonating
• Securing buy-in for additional resources
• How the CCO role has evolved in recent years—and perspectives on the direction for the role for the next year
• What it takes to drive ethical conduct from the top down
• Embedding global regulatory requirements into your processes and procedures
• Evaluating future, uncertain risks posed by geopolitical tensions, and the challenges of interacting with local government officials

• Revisions to the Evaluation of Corporate Compliance Programs (ECCP)
• How organizations have been revisiting their compensation programs
• Challenges to implementation in foreign jurisdictions, including local employment laws
• Determining what an overall “good-faith effort” on the part of companies really means
• Developing the structure and scope of a written clawback policy — and carefully considering who the policy is going to cover:
• officers only?
• senior employees above a certain level?
• all supervisory employees?
• all sales employees?

• Special considerations for designing and updating corporate policies around AI usage
• Training your employees on acceptable policies and practices
• Writing risk statements
• Leveraging AI for centralized transaction monitoring systems
• Addressing concerns about biased outcomes with AI models, including discrimination-based claims
• Navigating the interplay between AI tools, the data that is utilized, and the results and recommendations that are generated
• To what extent you can rely on AI outputs
• Ensuring that any AI solution that is deployed complies with all applicable regulations, including data privacy laws

• The status of individual prosecutions, including general counsel, chief compliance officers and accountants
• Recent enforcement actions against individual executives and key takeaways
• Deciding when to self-disclose potential violations
• Reviewing the scope of legal and compliance officers’ obligations to investigate potential red flags and monitor suspicious activity
• The scope of a company’s obligation to retain legal counsel for the employee and take an additional steps

Participants from your industry will convene separately for smaller-group networking and compliance benchmarking. Expand your industry specific network and exchange the newest best practices that are tailored to the specific realities of your business.

• The compliance and third-party risks specific to each of the components for oil and gas/energy projects: exploration, drilling, facilities support, transport, etc.
• The challenges associated with assets being controlled by state-owned companies
• When (and when not) employees at these state run companies qualify as foreign government officials under the FCPA
• Tailoring local legal and operational requirements to the context of emerging markets

Join us for a look back until now with Former FCPA Unit Chiefs — and perspectives on the year ahead as developments continue to unfold.

Join in-house compliance executives and leading outside counsel, as they delve into the lesser known, “behind the scenes” realities of navigating through a monitorship and DPA.

Topics of discussion include:

• Lessons for preventing a breach of a DPA
• Insights on the process, criteria and selection of monitors
• Best practices for managing an independent compliance monitorship
• Promoting systemic change within organizations through interdepartmental cooperation
• Preserving business continuity and addressing stakeholder considerations
• Deterring future misconduct: Concrete examples of policy and training upgrades

During this smaller-group session, participants from your industry will convene separately for smallergroup networking and compliance benchmarking. Expand your industry-specific network, and exchange best practices for managing heightened risks that are unique to your business and industry.

Topics for discussion include:

• DOJ enforcement updates in the life sciences context
• How the life sciences industry is updating messaging app policies, procedures, and monitoring
• The latest on managing unique, evolving bribery risk factors for sponsors and CROs
• Life Science-specific considerations for measuring the effectiveness of compliance programs

• The new regulatory expectations for retaining business records and correspondence
• Updating written policies governing usage, maintenance, and retention
• What is now expected for retention of business records and correspondence, and how is industry overcoming hurdles to implementation?
• The continuing impact of the global pandemic on corporate use of messaging platforms, and how increased usage has impacted compliance
• The necessary skillsets that are required for compliance officers

• Demonstrating that companies are designing and implementing effective compliance systems and controls
• Highlighting that the programs are “well designed” and work in practice
• Highlighting the processes for assessing risk and that a program is tailored to match those resources to the specific risk profile
• Demonstrating that a program is working — and how
• Real-world examples and stories — and their compliance lessons

• How a company’s reporting on ESG activities can affect the accuracy of its books and records
• Adjusting your third party questionnaires to capture additional ESG concerns, such as how diversity is handled and what environmental goals a third party has
• Leveraging data to assess potential violations, climate risks and compliance issues
• Identifying potential human rights risks associated with business operations and conducting human rights impact assessments
• Assessing self-reported information provided by third parties to assess the overall level of ESG risk

With the recent announcement of the Safe Harbor Policy, the DOJ continues to highlight the importance of prompt self-disclosure, which now encompasses the M&A context. The new Policy goes beyond antitrust and FCPA, so corporations and legal practitioners will grapple with how to plan for the six-month VSD and 12-month remediation deadlines.

Be sure to join this interactive and informative session as our panel of experts discuss the big-ticket risks, deadlines, and steps needed to qualify for the program. Topics will include:

• Strategic considerations for pre-acquisition and integration planning
• Attorney-client privilege considerations
• What qualifies as a “bona fide, arms-length M&A transaction”?
• Disgorgement: What does it mean; how to address?
• What to expect when the government learns of compliance issues before the acquirer
• Conducting risk-based audits of all newly acquired or merged businesses as quickly as possible

• Maximizing the use and effectiveness of hotlines
• Internal reporting vs. proceeding directly to an SEC complaint
• Are whistleblower complaints and internal reporting mechanisms competing systems?
• Have more employees reported directly to the agencies after recent rulings and awards; if so, why?
• To what extent whistleblower complaints are an accurate measure of workplace culture?
• What are the public and corporate impacts of whistleblower awards?

In this session, our panelists will explore the anticipated effects of new Administrations in Brazil and Mexico.

• The potential for increased FCPA and local enforcement for companies that operate in Brazil and Mexico, as well as their legal and compliance executives
• Legislation vs. enforcement in Mexico and Brazil: Dissecting the roles and responsibilities of agencies at the federal, state and municipal levels
• How the key local and international agencies will interface with companies
• Contrasting enforcement risks for local and multinational companies

PART I
PANEL DISCUSSION: Participants will gain further anti-corruption insights from the agencies.

PART II
OPEN AUDIENCE Q&A: Engage with the panelists through an extended opportunity for open Q&A with key enforcement and government officials – or feel free to submit your questions to: [email protected].

Your questions will be asked on an anonymous basis.