Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0019
Andrew S. Boutros
Conducting internal investigations requires a delicate balancing act for lawyers. The most immediate goal of any internal investigation is discovering the truth. But in the complicated real world occupied by today’s companies, the search for the truth finds itself in constant tension with other important, and often outcome-determinative, considerations. Nevertheless, it is critical that companies conduct an appropriately scaled, appropriately overseen investigation. This chapter first discusses the value of an internal investigation. It then offers a few words on the role of the board of directors when management or a board member is implicated, before describing in detail the basic steps a company should follow in conducting its investigation.
{"title":"The Delicate Task: Guide to Investigating Allegations of Company-Internal Misconduct","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0019","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0019","url":null,"abstract":"Conducting internal investigations requires a delicate balancing act for lawyers. The most immediate goal of any internal investigation is discovering the truth. But in the complicated real world occupied by today’s companies, the search for the truth finds itself in constant tension with other important, and often outcome-determinative, considerations. Nevertheless, it is critical that companies conduct an appropriately scaled, appropriately overseen investigation. This chapter first discusses the value of an internal investigation. It then offers a few words on the role of the board of directors when management or a board member is implicated, before describing in detail the basic steps a company should follow in conducting its investigation.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115136392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0027
Andrew S. Boutros
The U.S. Sentencing Commission has changed how the U.S. Sentencing Guidelines calculate fines for certain defendant companies. The amendments, effective November 1, 2010, make more readily available a long-standing three-level offense-level reduction. This change shifts the inquiry away from (1) the (mis)conduct of the company’s high-level personnel and toward (2) the effectiveness of the company’s compliance and ethics program. This move will surely benefit corporate defendants. Therefore, it is something for which compliance professionals and in-house legal counsel need to both understand and prepare. As the benefits of incentivizing companies to adopt proactive compliance, ethics, and self-reporting programs gain wider recognition, other countries eager to beef up their anti-bribery efforts can be expected to follow suit.
{"title":"Company Cooperation and U.S. Sentencing Guidelines","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0027","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0027","url":null,"abstract":"The U.S. Sentencing Commission has changed how the U.S. Sentencing Guidelines calculate fines for certain defendant companies. The amendments, effective November 1, 2010, make more readily available a long-standing three-level offense-level reduction. This change shifts the inquiry away from (1) the (mis)conduct of the company’s high-level personnel and toward (2) the effectiveness of the company’s compliance and ethics program. This move will surely benefit corporate defendants. Therefore, it is something for which compliance professionals and in-house legal counsel need to both understand and prepare. As the benefits of incentivizing companies to adopt proactive compliance, ethics, and self-reporting programs gain wider recognition, other countries eager to beef up their anti-bribery efforts can be expected to follow suit.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134545659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/oso/9780190232399.003.0025
Andrew S. Boutros
In the course of doing business, company managers may discover that the company has violated the law, thereby exposing the company to potential civil or criminal liability. When this occurs, an inevitable question is whether the company should voluntarily disclose this information to the government. To be sure, the U.S. Department of Justice (DOJ) has strongly encouraged companies to self-report their misdeeds. However, disclosure is not without serious risks and potential consequences. Determining whether to self-report requires careful evaluation of multiple considerations. This chapter discusses in depth those considerations, and fully outlines both the benefits and risks of voluntary disclosure.
{"title":"Voluntary Disclosures","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0025","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0025","url":null,"abstract":"In the course of doing business, company managers may discover that the company has violated the law, thereby exposing the company to potential civil or criminal liability. When this occurs, an inevitable question is whether the company should voluntarily disclose this information to the government. To be sure, the U.S. Department of Justice (DOJ) has strongly encouraged companies to self-report their misdeeds. However, disclosure is not without serious risks and potential consequences. Determining whether to self-report requires careful evaluation of multiple considerations. This chapter discusses in depth those considerations, and fully outlines both the benefits and risks of voluntary disclosure.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128278071","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0016
Andrew S. Boutros
The United Arab Emirates (UAE) anti-corruption framework targets bribery of domestic and foreign officials, corruption, and even facilitation payments. The laws, which appear in legislative initiatives regulating a variety of industries and areas, create a robust system to combat both public and private-sector corruption and bribery. A 2016 amendment to the Federal Penal Code strengthened the legal framework against public corruption, fraud, and embezzlement with a view to strengthening the laws that protect the public trust. The anti-corruption framework can be found primarily in the UAE’s civil law, its Federal Human Resources Law, and its penal code. The enforcement is handled by the police, the Office of the Public Prosecutor, the Ministry of Justice, and the State Audit Institution. Given the increased international cooperation between regulatory agencies, the UAE’s enforcement agencies and its regulators will be at the forefront of the global fight against corruption. This is especially true given the UAE’s growing importance in regional and global financial markets.
{"title":"The United Arab Emirates","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0016","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0016","url":null,"abstract":"The United Arab Emirates (UAE) anti-corruption framework targets bribery of domestic and foreign officials, corruption, and even facilitation payments. The laws, which appear in legislative initiatives regulating a variety of industries and areas, create a robust system to combat both public and private-sector corruption and bribery. A 2016 amendment to the Federal Penal Code strengthened the legal framework against public corruption, fraud, and embezzlement with a view to strengthening the laws that protect the public trust. The anti-corruption framework can be found primarily in the UAE’s civil law, its Federal Human Resources Law, and its penal code. The enforcement is handled by the police, the Office of the Public Prosecutor, the Ministry of Justice, and the State Audit Institution. Given the increased international cooperation between regulatory agencies, the UAE’s enforcement agencies and its regulators will be at the forefront of the global fight against corruption. This is especially true given the UAE’s growing importance in regional and global financial markets.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130555691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0018
Andrew S. Boutros
One emerging transnational trend in anti-corruption efforts is the phenomenon of “carbon-copy prosecutions”: when foreign or domestic Jurisdiction A files charges based on a guilty plea or charging document from Jurisdiction B. The net effect of DOJ and SEC FCPA settlement policies is that when a company enters into a negotiated resolution with U.S. enforcers, it is essentially powerless to defend against—much less deny—the factual basis on which the resolution is based. This all but ensures that a company that settles with the DOJ—or both the DOJ and SEC in parallel proceedings—will have little or no choice but to settle with U.S. and foreign authorities, should such authorities choose to exercise jurisdiction and enforce their corollary anti-corruption laws. Duplicative serial enforcement actions are now part and parcel of the enforcement landscape, despite a healthy ongoing debate over the need for, and fairness of, serial enforcements.
{"title":"“Carbon-Copy Prosecutions”: A Multi-Dimensional Enforcement Paradigm that is Here to Stay","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0018","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0018","url":null,"abstract":"One emerging transnational trend in anti-corruption efforts is the phenomenon of “carbon-copy prosecutions”: when foreign or domestic Jurisdiction A files charges based on a guilty plea or charging document from Jurisdiction B. The net effect of DOJ and SEC FCPA settlement policies is that when a company enters into a negotiated resolution with U.S. enforcers, it is essentially powerless to defend against—much less deny—the factual basis on which the resolution is based. This all but ensures that a company that settles with the DOJ—or both the DOJ and SEC in parallel proceedings—will have little or no choice but to settle with U.S. and foreign authorities, should such authorities choose to exercise jurisdiction and enforce their corollary anti-corruption laws. Duplicative serial enforcement actions are now part and parcel of the enforcement landscape, despite a healthy ongoing debate over the need for, and fairness of, serial enforcements.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117045878","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0026
Andrew S. Boutros
Companies—especially publicly traded companies—do not want to go to trial in criminal cases. In fact, they do not want to be indicted at all. Indictment, let alone trial, can have serious consequences. With the dramatic increase in corporate criminal prosecutions over the last two decades, a fourth option has emerged in the corporate criminal arena: deferred prosecution agreements (DPAs) and nonprosecution agreements (NPAs), which are alternatives to the traditional “guilty” or “not guilty” approach that the law has generally taken to charged crimes. Collectively, these agreements are known as corporate pretrial diversion agreements. Whether the government elects to use one of these agreements depends on multiple factors.
{"title":"Deferred Prosecution Agreements, Nonprosecution Agreements, and Corporate Integrity Agreements","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0026","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0026","url":null,"abstract":"Companies—especially publicly traded companies—do not want to go to trial in criminal cases. In fact, they do not want to be indicted at all. Indictment, let alone trial, can have serious consequences. With the dramatic increase in corporate criminal prosecutions over the last two decades, a fourth option has emerged in the corporate criminal arena: deferred prosecution agreements (DPAs) and nonprosecution agreements (NPAs), which are alternatives to the traditional “guilty” or “not guilty” approach that the law has generally taken to charged crimes. Collectively, these agreements are known as corporate pretrial diversion agreements. Whether the government elects to use one of these agreements depends on multiple factors.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128065278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/oso/9780190232399.003.0013
Andrew S. Boutros
Russian anti-corruption legislation generally consists of federal laws, including codified acts. Recent developments in Russian anti-corruption legislation have mainly been aimed at stiffening the penalties for corruption-related offenses and making legal entities carry out their anti-corruption duties more effectively. In the last few years enforcement trends show that Russian law enforcement authorities are increasingly focusing on investigating corruption-related offenses committed by public officials rather than in the commercial sector. Russian law envisages both criminal and administrative liability for corruption-related offenses (save for corporate entities, which cannot be held criminally liable), including a wide variety of penalties that depend on, among other things, the amount of the bribe given and whether there are any aggravating circumstances. There is practically no difference in the way that bribery of domestic and foreign officials is treated under Russian anti-corruption legislation. Broad investigative powers are vested in investigators rather than prosecutors—the latter mainly having the role of monitoring law enforcement authorities’ compliance with the law and representing the state in criminal proceedings in court. No obligation to cooperate with investigators and prosecutors is specifically imposed in the Russian law of criminal procedure, but there are special rules governing participation by persons (including witnesses and injured parties) in criminal proceedings.
{"title":"Russia","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0013","url":null,"abstract":"Russian anti-corruption legislation generally consists of federal laws, including codified acts. Recent developments in Russian anti-corruption legislation have mainly been aimed at stiffening the penalties for corruption-related offenses and making legal entities carry out their anti-corruption duties more effectively. In the last few years enforcement trends show that Russian law enforcement authorities are increasingly focusing on investigating corruption-related offenses committed by public officials rather than in the commercial sector. Russian law envisages both criminal and administrative liability for corruption-related offenses (save for corporate entities, which cannot be held criminally liable), including a wide variety of penalties that depend on, among other things, the amount of the bribe given and whether there are any aggravating circumstances. There is practically no difference in the way that bribery of domestic and foreign officials is treated under Russian anti-corruption legislation. Broad investigative powers are vested in investigators rather than prosecutors—the latter mainly having the role of monitoring law enforcement authorities’ compliance with the law and representing the state in criminal proceedings in court. No obligation to cooperate with investigators and prosecutors is specifically imposed in the Russian law of criminal procedure, but there are special rules governing participation by persons (including witnesses and injured parties) in criminal proceedings.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"281 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115336371","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0029
Andrew S. Boutros
Today’s companies must understand and prevent the myriad problems flowing from labor issues. Increasingly demanding, serious compliance attention and resources are now being focused on the emerging area of human anti-trafficking and forced labor laws and regulations as they relate to business supply chains. These mandates include the California Transparency in Supply Chains Act, the Executive Order on Strengthening Protections Against Trafficking in Persons in Federal Contracts, and the UK Modern Slavery Act of 2015. By enlisting or conscripting companies into the fight against human trafficking, child labor, and other “forced” or “coerced” labor practices, these laws introduce a wholly new compliance reality requiring accountability and supply chain compliance.
{"title":"On the Anti-Bribery “Watchlist”: Compliance and Labor/Anti-Trafficking Issues","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0029","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0029","url":null,"abstract":"Today’s companies must understand and prevent the myriad problems flowing from labor issues. Increasingly demanding, serious compliance attention and resources are now being focused on the emerging area of human anti-trafficking and forced labor laws and regulations as they relate to business supply chains. These mandates include the California Transparency in Supply Chains Act, the Executive Order on Strengthening Protections Against Trafficking in Persons in Federal Contracts, and the UK Modern Slavery Act of 2015. By enlisting or conscripting companies into the fight against human trafficking, child labor, and other “forced” or “coerced” labor practices, these laws introduce a wholly new compliance reality requiring accountability and supply chain compliance.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126997546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/OSO/9780190232399.003.0022
Andrew S. Boutros
When conducting internal investigations, it is critical to understand and consider various U.S. and international privacy and data protection laws. Some of the key laws investigators must consider include the Electronic Communications Privacy Act, the Fair Credit Reporting Act, and the Health Insurance Portability and Accountability Act. In addition, Sarbanes-Oxley in the United States and privacy and data security regimes in other countries and regions, for example Australia and the European Union, contain critical data security provisions, of which internal investigators must be aware. This chapter also includes discussion of other laws pertaining to the subject, such as the Children’s Online Privacy Protection Act, the Communications Act, and the Driver’s Privacy Protection Act.
{"title":"Investigations, Privacy and Data Security Issues","authors":"Andrew S. Boutros","doi":"10.1093/OSO/9780190232399.003.0022","DOIUrl":"https://doi.org/10.1093/OSO/9780190232399.003.0022","url":null,"abstract":"When conducting internal investigations, it is critical to understand and consider various U.S. and international privacy and data protection laws. Some of the key laws investigators must consider include the Electronic Communications Privacy Act, the Fair Credit Reporting Act, and the Health Insurance Portability and Accountability Act. In addition, Sarbanes-Oxley in the United States and privacy and data security regimes in other countries and regions, for example Australia and the European Union, contain critical data security provisions, of which internal investigators must be aware. This chapter also includes discussion of other laws pertaining to the subject, such as the Children’s Online Privacy Protection Act, the Communications Act, and the Driver’s Privacy Protection Act.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125235499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-05-21DOI: 10.1093/oso/9780190232399.003.0005
Andrew S. Boutros
China’s anti-corruption legislation prohibits both official corruption and commercial bribery. China is a civil law country. It does not have a uniform national anti-corruption law yet, and the relevant anti-corruption legal provisions are mainly in the PRC Criminal Law and the PRC Anti-Unfair Competition Law. In addition to these two key legislations, there are also regulations and judicial interpretations issued by relevant government agencies and Supreme People’s Court to address implementation issues under the law. Since China’s president, Jinping Xi, came to power in 2012, China has launched an anti-corruption campaign. The 19th CCP Congress in 2017 continues to send strong signals to fight against corruption.
{"title":"China","authors":"Andrew S. Boutros","doi":"10.1093/oso/9780190232399.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780190232399.003.0005","url":null,"abstract":"China’s anti-corruption legislation prohibits both official corruption and commercial bribery. China is a civil law country. It does not have a uniform national anti-corruption law yet, and the relevant anti-corruption legal provisions are mainly in the PRC Criminal Law and the PRC Anti-Unfair Competition Law. In addition to these two key legislations, there are also regulations and judicial interpretations issued by relevant government agencies and Supreme People’s Court to address implementation issues under the law. Since China’s president, Jinping Xi, came to power in 2012, China has launched an anti-corruption campaign. The 19th CCP Congress in 2017 continues to send strong signals to fight against corruption.","PeriodicalId":256977,"journal":{"name":"From Baksheesh to Bribery","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133990681","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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