Welcome to Episode #40! Tom and I have a guest! Our guest, Barry Vitou from Pinsent Masons—and of The Bribery Act site fame—talks to us about the recent news that his firm dug up that the SFO has conduct exactly -0- raids this year. Ouch.
We made a new over/under bet for the SFO and the UK Bribery Act:
Announcement of an investigation: March 15, 2013
Both Tom and Barry took the under. I’m taking the over (just because).
Bringing a Case: December 15, 2013
Tom took the under, Barry took the over. I’m taking the over.
The bet is a pint of Sam Adams versus a pint of Guinness.
Plus, we talk about recent articles that made us ask, WTF? We talk about recent DOJ losses, and Tom wonders where Howard went, and when the person impersonating him will return him. We talk about Lindsey and the dropped appeal, Carson pleas and motions (including one involving the FCPA Professor), Walmart, and finally, whistleblowers. It’s a chock-full episode.
Show notes:
00:32: Interview with Barry Vitou (What has the SFO been spending their time on?)
22:09: Tom and I talk about why the SFO hasn’t brought a case
23:34: Three articles that made Tom and I say, “WTF?”
32:57: What’s going on with the DOJ lately? John Edwards, Ted Stevens, trial losses, trial screwups (34:57: Tom tells me I’m totally wrong; 43:03: I talk about the Bronx DA’s Office)
47:33: DOJ dismisses Lindsey appeal
51:44: Carson defendant pled guilty
52:30: Motion to Exclude Professor Koehler as an expert in the Carson trial
1:01:55: Whistleblower study: the data might surprise you
1:07:29: Walmart moving in the right direction
1:09:48: Go to Compliance Week! It’s not too late!
Episode #39 is in two parts (my baby pulled out the plug to the router).
Part I
0:00 Happy Shavuos
1:45: It’s the Week of the Letter
2:01: Open Society Foundations letter to Rob and Lanny
3:00: What’s an “instrumentality”? More than 51% owned by government? Is that the right standard?
8:45: Public v. Private distinction: does it mean anything anymore?
13:53: Is there, or should there be, a de minimus gift exception?
15:25: Gift-related investigation disclosure by MTS
We lose contact around 17:45 or 18:00
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Part II
0:00 Sorry about that
2:34: Congress writes a letter to the Chamber: are your members hopelessly conflicted. Hell freezes over: Tom, the FCPA Professor, and I are all on the same side of this.
——–
5:38: DOJ writes to Congress about the Ted Stevens case. Were the 40-day suspension and the 15-day suspension sufficient? (@7:38: Williams & Connolly respond, harshly)
16:10: Ernst & Young 12th Global Fraud Survey
20:20: Dow Jones anti-corruption survey
22:27: Chadbourne & Parke Compliance Quarterly: Tom and I love it
27:35: The SEC has a lot of trials. Do they have the people to do them?
30:34: 7 Ways to Maintain Credibility with the DOJ in FCPA investigations (including, hire Recommind
38:39: a panel you might want to attend. Definitely worth the $195.
Tom and I talk about News Corp. and the arrest of Rebekah Brooks (and the lawyer who charges $4,700 per hour). We talk about the Carson case and Judge Selna reassuring us that private means private. We talk about Esquinazi and his appeal, including the effect of the dueling declarations. Finally, we talk about Walmart, the expansion of the investigation, and how it’s bringing in more commentary than we’ve seen in the past.
Show Notes:
1:01: Takeaways from the ABA Panel with the SEC
4:42: News Corp.’s Brooks arrested
8:39: The $4,700 per hour lawyer?!
12:57: Judge Selna’s tentative Carson decision; what should the government have to search and disclose?
26:29: Esquinazi appeal
31:41: The dueling “declarations.” Is Haiti Teleco an instrumentality or not? Haiti says no. Wait, they say yes.
42:14 Walmart’s disclosure
43:34: The Donald comments
49:52: What’s coming up from Tom and Howard, including that we are going to be together at Compliance Week on a panel going over the recent case law and hot FCPA issues. Come to Compliance Week and see us.
Just slapping it up, show notes to follow (at some point: I’m traveling for the rest of the week).
Tom and I talk about WalMart and their self-disclosure issue…no, wait…they don’t have a self-disclosure issue, do they?
We also talk about News Corp. (not the publisher of this blog…sorry, Sam), crisis management, willful blindness, and when’s it all gonna end?!
And we talk about when an in-house or outside counsel suddenly is cross-designated—without their knowledge or consent, much less additional salary—as a “government agent.”
I’ll try to parse out the subjects we talk about by time. It blends, so bear with it.
04:00: Will this fundamentally change FCPA compliance going forward?
06:06: How will Mexico respond? How will the DOJ?
07:11: Impacting the News Corp. story
08:22: Will this kill the FCPA reform movement?
Vis-a-vis: (1) Compliance defense (2) respondeat superior (3) defining “foreign official”
12:45: Were the people receiving the payments foreign officials?
13:10: My take on the effect on reform efforts, and how the Chamber could turn this to their advantage
25:30: Were these facilitation payments?
30:30: Legal under local law exemption? And how does the local law element interact with the facilitation payments element? And what does Mexican law say?
34:18: Books-and-records issues. A “legal facilitation payments” account? Good idea?
37:35: Self-disclosure. What happened?
44:12: What happened with the internal investigation?
50:25: What did Wal-Mart do right?
By the way, I mistakenly recorded this as picture-in-picture rather than side-by-side. At least the relative weights of the opinions presented are reflected in the size of the window.
Tom and I, both in Washington DC for the Dow Jones Global Compliance Symposium, decided to do a live show, so to speak. We recorded on YouTube (the video quality isn’t great because I was using my laptop camera.
Also, you might find the sound to be a bit low: I would suggest listening with headphones.
Part I: Is the DOJ being overly aggressive in its enforcement of the FCPA?
Finally, episode #33 is here. Totally my fault: there have been numerous tech issues involving my computer, and the recording software, that actually makes this the fourth time Tom and I have recorded the same episode.
–Around 12:57, Howard takes a surprising position
–Around 17:44, what should regulators do when a company self-reports a violation, but a
really minor one?
22:22: Noble execs get sued (13 minutes)
–Is there going to be a trial? @26:05
–Around the 30-minute mark, I take another surprising stance on the SEC’s capabilities,
Tom says I’m wrong about something, I concede; and I take a very unsympathetic view to
a prosecution (yes, that’s possible)
35:45: TSKJ sentencings (7 1/2 minutes)
–Stanley @ 35:45
–Tesler @38:35
–@43:46, the impossible happens: Howard says “I’m wrong.”
44:08: Africa Sting case ends (11 minutes)
55:15: Wynn Resorts boots a board member (6 1/2 minutes)
1:01:40: Alba suing Alcoa (1 1/2 minutes)
1:03:15: Alstom subsidiaries get debarred. (3 minutes)
Sorry, folks. Tom and I recorded this weeks ago, and between my tech issues and a trip to Hong Kong, I was just able to get this thing processed today. I’m STILL trying to process the second part, our breakout session. With no luck. Plus, my computer-shutdown problems are back, which means I’m probably switching off Vodburner.
I know this has nothing to do with you, but it explains—but doesn’t excuse—the tardiness. And yes, Tom and I are both aware that we have a LOT to cover in our next episode. We will be recording that sometime this week, I hope.
