{"id":6588,"date":"2022-07-25T23:11:37","date_gmt":"2022-07-25T23:11:37","guid":{"rendered":"https:\/\/www.americanconference.com\/fcpa-dc\/?page_id=6588"},"modified":"2023-01-19T16:54:20","modified_gmt":"2023-01-19T16:54:20","slug":"the-science-of-conducting-a-cross-border-investigation","status":"publish","type":"page","link":"https:\/\/www.americanconference.com\/fcpa-dc\/aci-insights\/the-science-of-conducting-a-cross-border-investigation\/","title":{"rendered":"The science of conducting a cross-border<\/span> investigation"},"content":{"rendered":"
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By Jaclyn Jaeger<\/p>\r\n

Thursday, June 16, 2022<\/p>\r\n<\/div>\r\n

With more countries applying their anti-corruption laws extraterritorially and stepping up their enforcement of those laws domestically, companies and their counsel are having to navigate an increasingly more complex web of legal regimes when conducting an internal investigation.<\/p>\r\n\r\n

\u201cLaws relating to issues such as privilege, work product, data protection, and employee rights can vary considerably across jurisdictions. What is protected or permitted in one jurisdiction may not be in another,\u201d said Brian Rabbitt, a partner at Jones Day and formerly acting assistant attorney general for the Department of Justice Criminal Division.<\/p>\r\n\r\n

\u201cSimilarly, regulators in different jurisdictions frequently have different authorities to investigate conduct or to impose sanctions,\u201d Rabbitt added. \u201cEnforcement agencies may accordingly take differing — and sometimes conflicting — views as to what a company must produce to the government or do to cooperate with an investigation.\u201d<\/p>\r\n\r\n

In some ways, greater cooperation among enforcement agencies benefits companies and their counsel, because it brings some order to the dialogue, said Adam Siegel, co-head of the global investigations group at Freshfields. \u201cSometimes, it\u2019s actually worse if they\u2019re not cooperating, if they\u2019re competing, because then you\u2019re trying to satisfy different regulators who have different perspectives,\u201d he said.<\/p>\r\n\r\n

To tackle challenges posed by a multijurisdictional investigation, the first step should be for counsel to triage the situation at the outset of any cross-border investigation. Figure out which jurisdictions and regulators may be implicated in the conduct at issue, which is an especially critical step in avoiding inadvertent waivers of privilege.<\/p>\r\n\r\n

\u201cPrivilege is one of the most complex areas in cross-border investigations,\u201d Rabbitt said. \u201cWhat may be privileged or protected in one country may be only partially protected, or not protected at all, in another. This can be particularly true when it comes to communications with in-house counsel, who can sometimes wear multiple hats within a company.\u201d<\/p>\r\n\r\n

To reduce the risk of privilege waivers, and when collecting documents outside the United States for purposes of an internal investigation, be mindful of local laws and regulations concerning data privacy and employee privacy rights, advised Robert Johnston, a partner at law firm Lowenstein Sandler. \u201cIn my experience, the best way to do that is engage local counsel and have local counsel review and approve investigation protocols and procedures,\u201d he said.<\/p>\r\n\r\n

\u201cPrivileged communications and documents, especially those involving in-house counsel, should be clearly labeled,\u201d Rabbit said. And employees should receive clear \u201cUpjohn\u201d warnings at the beginning of all interviews, he said, reminding employees during an investigation that corporate counsel works in the interest of the company, not the employee personally.<\/p>\r\n\r\n

In some European countries, employees are protected under robust labor regimes that make it difficult for the company to terminate employees if they don\u2019t elect to cooperate in an investigation. In other countries, an internal investigation can trigger works council or union participation rights. All these considerations need to be weighed carefully.<\/p>\r\n\r\n\"Anti-Corruption<\/a>\r\n\r\n

Self-disclosure considerations<\/strong><\/p>\r\n\r\n

Self-disclosing potential misconduct is another critical consideration. \u201cWhether, when, and how to self-report potential misconduct can be a difficult issue in cross-border investigations,\u201d Rabbitt said.<\/p>\r\n\r\n

\u201cCountries frequently have different laws and practices relating to self-disclosure,\u201d Rabbitt added. \u201cEven within the same country, different regulators often have their own written policies or informal expectations as to when and how a company should self-report.\u201d<\/p>\r\n\r\n

Rabbitt advised, \u201cBefore making any disclosure, companies need to consider what impact a disclosure to one jurisdiction or regulator will have in other jurisdictions, whether on related investigations or parallel civil litigation.\u201d<\/p>\r\n\r\n

All this is to say if the company is going to self-disclose, prepare for a lengthy investigation and be prepared to cooperate with potentially multiple regulators. Johnston said that means providing all information and facts, including facts that might implicate senior management; disciplining or possibly terminating culpable employees; investing in legal, compliance, and internal audit; and being prepared to compensate any victims.<\/p>\r\n\r\n

With more enforcement agencies around the world increasingly coordinating with one another and sharing information, \u201ccompanies considering self-disclosure need to assess whether there is a benefit to making simultaneous disclosures to interested agencies, or whether there are instead advantages to sequencing disclosures where multiple agencies may have an interest in a particular matter,\u201d Rabbitt said.<\/p>\r\n\r\n

Questions to consider when deciding whether to self-disclose include:<\/p>\r\n