00:39: More than you wanted to know about Howard’s new site (the redesigned Open Air Blog)
01:51: Have a happy new year
02:55: Hewlett Packard (Howard recuses himself from the discussion, so this is all Tom)
06:09: You missed my birthday. Don’t worry, you don’t have to apologize
06:43: NCR shows considerable skill at treating a whistleblower complaint in exactly the wrong way. Tom & I talk about how to handle a whistleblower better. And here’s the link to Mike Volkov’s video.
18:12: DOJ improves their already-great Web site. And they work really, really hard
23:07: Tom is speaking in Singapore. If you’re anywhere close, you really need to go. Here’s the link to the conference. And in San Diego. The San Diego one is on diligence, and is with Mike Volkov
27:32: Comverse: we can’t guarantee that we won’t screw up…again. Ooookkkaaaayyyy, Comverse. Thanks for sharing. And how to actually have consistent messaging.
36:44: Paul Cosgrove, former global head of Sales at Control Components, Inc. (CCI), gets sentenced. Ending a very interesting case. And neither Howard nor Tom are Supreme Court scholars. Little help, anyone? And Howard is going to be in the same room with Lanny, in the near future, in London!

Show notes:

00:41: Go hear Tom in Chicago, Tuesday morning at the University Club of Chicago, hosted by Kreller, along with Stephen Martin of Baker McKenzie. They’ll be talking about the 5 key elements of a corporate compliance program

02:15: Is the SFO backing off prosecution of the UK Bribery Act? So argues Alexandra Wrage.

16:03: Mike Koehler is amazing. And, he writes. What is a government instrumentality, he asks, now that the Conflict Minerals rule defines it as when a foreign government owns 51% or more of the third party.

23:19: Anytime a lawyer gets arrested, we take notice. The head of legal for News of the World gets arrested.

26:48: How much should FCPA investigations cost? For Walmart, $51 million. For ABM, $3.3 million

29:27: Safran pays a “fine.” €500,000 to get a €170 million contract. Or, as I call it, cost of sales. Could it be because they’re 1/3 owned by the French government? Hey, DOJ/SEC: do something about this. Please.

35:05: NYU study on self-disclosure. Does self-disclosure have an effect on the penalty?

40:07: Harris Corp. investigating itself. Over gifts. “Why? Why? Why?,” I cry. And a question to ponder: is it possible to retain revenue going forward when you find old contracts were obtained through bribery?

00:59: Howard promises not to say things are slow anymore
01:21: Oracle and the difficulty with finding and stopping slush funds
07:00: Howard agrees with Professor Koehler…what is the world coming to? Tom disagrees. Eh, he’s probably right.
15:41: SEC approves disclosure rules for extractive industry
20:56: SEC pays out first whistleblower payment
24:00: Tchenguiz case: we don’t understand the deal. Go over to thebriberyact.com. Even we can understand that investigative agencies need resources to hire investigators. Call me crazy.
26:46: DOJ files 11th Circuit brief in Esquinazi & Rodriguez appeals
33:07: Is $34 million in one quarter a lot of money for an FCPA investigation?
36:09: Garth Peterson talks to CNBC and the SODDI defense
44:28: NCR: a world of issues in one little investigation (and Tom and I both have a senior moment. Little help here?). Killing the messenger is a time-honored custom in China, right?
55:21: Who is a “senior leader”? To what level does a bribery scheme have to rise in order for us to say that the company knew?
1:03:56: As if you needed another reason to go to San Diego, Tom and Mike Volkov are going to be speaking about due diligence. I speak at conferences too.

01:21: Howard won’t tempt fate again. Believe it.
02:03: Pfizer & Wyeth settle enforcement actions. Tom and I will be doing an entire episode just about that.
04:42: Standard Chartered
21:32: Did Standard Chartered have a “Deceptive Business Plan?” Or did they just follow the law as OFAC has laid it out?
29:44: What happened to the Attorney-Client Privilege?!
32:46: We have to bring Deloitte into it too
37:40: Evasion versus doing what’s legal in a different way (or, is it illegal if you jump through the hoops they set up?)
39:26: Is there such a thing as “reputation risk?”
46:34: SFO is investigating an EADS subsidiary
49:38: News Corp. arrests, Church of England divests
52:43: JP Morgan Chase is my new best friend

Show notes:

02:47: Investigation of Sensata closes, no charges brought; raises the question of “what’s a declination, exactly?” And how you need M&A diligence.
14:00: WW Grainger publicly announces that they don’t know how to do an internal investigation. That is, they announced that their investigation didn’t find anything. What should you do with gift cards? And why a compliance culture is good for the business.
22:31: Halliburton opens an investigation
26:12: Olympus open an investigation. Into reimbursements to doctors in Brazil. Really? You’re gonna disclose that?
28:04: The importance of integrating companies you buy
33:05: Total SA. Howard goes on a rant, and evidently isn’t a fan of anything French.
40:15: Still on Total SA, but talking about how the investigation is REALLY old, and as someone told me, cases—unlike wine—don’t get better with age. Plus, the blocking statue; plus, the whistleblower laws.
43:03: Avon’s CEO gets called in, and Avon has spent a ton of money. Seriously, if you weighed it, it would weigh a ton.
49:25: Bistrong gets 18 months. Howard feels conflicted.
54:21: Stroz Friedberg shoots…they score! Again. First Scott Peeler, now David Glockner.
56:47: SEC loses Stoker trial. Howard tries to explain what a CDO is (and fails miserably).

02:15: No enforcement actions this week, no new investigations
02:47: News Corp., phone hacking, the Leveson Committee, and we’re shocked, shocked, to find that there’s gambling going on in this establishment (wait, you mean that reporters pay for access?!). The intersection between the FCPA and a free press.
09:04: New law firm FCPA updates
10:36: if Germany says someone isn’t a government official, does that bind (or even influence) the DOJ?
15:25: law firm FCPA updates are too long, I argue
18:00: How to choose outside counsel for FCPA matters (Howard’s version)
26:37: Howard’s book comes out (okay, it’s Alexandra Wrage’s book; I just wrote a chapter).
27:43: New corporate disclosures (Qualcomm, Stryker, Schlumberger) show LONG investigations
32:11: Bistrong gets a recommendation of probation
34:17: The problem with sting cases
35:27: What’s a declination?

1:37: Halliburton’s settlement of the shareholder action
3:46: Halliburton messaging requirements
9:36: Halliburton’s audit personnel requirement
13:21: Back to the messaging requirements; should they have set the # of messages
17:54: Qualcomm opens an internal investigation (belatedly)
20:27: Is a Wells Notice something you must disclose
28:08: What happens (or should happen) when you get the first call from the DOJ & SEC
29:31: Are outside auditors going to lawyer up too?
31:46: Nordam penalized, but not too harshly
41:08: Noble executives Mark Jackson and James Ruehlen file their reply briefs
47:40: Do you have to know that what you’re paying is a bribe? To “willfully” bribe? How does that apply to facilitation payments?
57:25: I rant about tolling and the statute of limitations

01:25: Many, many law firm “reports, reviews, alerts” etc. But is enforcement leveling out? And Miller Chevalier? Make a downloadable PDF, please.
08:28: Alcoa, Alba, and a publicized settlement offer
18:02: Chocolates and bribery. That is, the Orthofix case. And we get a full-on Howard rants starting about 28:13. And I get on a roll, and keep on it for a while.
36:55: Former Prime Minister of Israel Olmert acquitted of bribery. Ties into the US, and into the Sands investigation. How would this effect a US investigation?
In the middle of this: Tom leaves, Howard chokes, Tom returns.
41:44: Walmart, facilitation payments, and the (potentially premature) death notice for FCPA reform
42:19 starts the facilitation payments discussion. At 46:23, we start talking about the excellent China Law Blog, and Dan’s post from today. [Tom and I are in total agreement: you need to start reading China Law Blog, if you don't already.]

1:04: Latin America survey, with guests!  Matt Ellis and James Tillen
36:49: Do the Dodd-Frank and Sarbanes Oxley whistleblower protection provisions apply outside the US? Judge Atlas (fellow Tufts University graduate…Go Jumbos!) says no.
48:48: The Attorney General is found in contempt of Congress. Starting with the DOJ’s chain of command for FCPA cases. (@56:59 conflicts, anyone?)
59:48: Roger Clemens was acquitted. Tom goes off on a rant against naps.
1:02:53: SEC’s “obey the law” injunctions are too vague for the 11th Circuit.
1:08:44: Do you have to disclose a Wells Notice? Answer: it depends.
1:14:24: Is a $135 million gift ever appropriate?

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