Today we celebrate Texas Letters. I know that might sound counter-intuitive for a state that is bunkering down for the anticipated Jade Helm invasion but there is a literary tradition that is certainly well known. On this day 79 years ago in 1936 Larry McMurtry was born in Wichita Falls, Texas. He has many accomplishments over the years, starting at 25 when he published his first novel, Horseman, Pass By (1961), in 1966 he explored small-town society isolation in The Last Picture Show, . In 1983 Terms of Endearment became an award-winning movie and in 1986. He won the Pulitzer Prize for Lonesome Dove, his 1985 bestseller about a 19th century cattle drive.
Today I conclude a two-part series on how to formulate an effective best practices cross-border investigation based upon an interview I did with Mara Senn, a partner at Arnold & Porter LLP, who specializes in white collar defense and cases brought under the Foreign Corrupt Practices Act (FCPA). The interview was based on an article that Senn and a colleague, Michelle Albert, published in the FCPA Report, Volume 3, Number 1, entitled “Internal Investigations, How to Conduct an Anti-Corruption Investigation: Developing and Implementing the Investigation Plan”. Today I will review practices six through ten.
- Put Form in Native Translations
Senn noted that in the countries that have strict data privacy laws, there are times that the only way an investigation can collect an employee’s personal information is to obtain affirmative assent. Such information might include work documents, work emails, or similar information. However she cautioned that in this situation it is even more important to put the consent form in the native language. She said that you do not want the employee to later claim they did not understand the consent form or thought they were executing something different. It can be critical that you have informed consent, because if you do not have informed consent, that consent could well turn out to be void.
- Preserve the Attorney Client Privilege
I first asked Senn to briefly describe the attorney-client privilege. She responded that the attorney-client privilege is a communication between an attorney and a client for the purpose of seeking legal advice. The reason they have this privilege is to make sure that people are not afraid to go their lawyer. Further, the purpose of attorney-client privilege is set up so that you will be encouraged to have protected conversations with counsel, to make sure you understand the law so you can follow it. The US rule is relatively straightforward. It applies to both in-house and outside counsel.
However the rules outside the US can be quite different and perhaps a little bewildering. In many European countries there is no privilege from an in-house counsel, so if a General Counsel (GC) of a company speaks to the President or Chief Executive Officer (CEO) there is absolutely no privilege under basically any circumstances in Europe. Senn then noted that other jurisdictions have other kinds of laws, each with a slightly different parameter, leading to different attorney-client expectations. She gave one such example; where your client is headquartered in Germany and your in-house client is the GC, you cannot really use them as a point person to help you conduct the interview the way you would with the US in-house counsel, because they do not have the attorney-client privilege.
- Prepare for Local Enforcement Actions
Most American lawyers are aware that increasingly, as we have seen other jurisdictions, other countries are becoming more aggressive in their enforcement actions for bribery and corruption, sometimes based upon local and domestic anti-bribery laws. Senn pointed out that information which one government knows, whichever government that is, you should expect and assume that multiple governments are cooperating in some way. This then makes it more likely that there could well be some sort of local enforcement action against your client while you are investigating matters around a FCPA claim or potential FCPA claim.
Senn believes this is another area where your local counsel can be helpful in that they should be aware of the different enforcement agencies in different countries that have different ways of doing things. For instance some countries, such as China, like to perform dawn raids; where essentially they come, they get people when they are asleep or when they are just waking up, and they just arrest them or they come in and seize documents.
Yet there are other countries where that is extremely unlikely to happen and so again, local counsel can give you an idea of what the typical raid would look like. Sometimes they just very politely call you and say, “Can we make an appointment? We’d like you to come by.” While this might not occur if the local government officials are concerned that there is the potential for the destruction of evidence, also different countries have different traditions of what they do, so you must ensure that your client is prepared for whatever may come to pass.
- Prepare for Security Risks
In this situation Senn was referring to personal security, physical and health safety. She gave a couple of examples that sometimes you may be going into situations or countries where it may be war torn. Or consider the recent situation when Ebola was going around Western Africa or Central Africa. If you are conducting an investigation in such ravaged areas you should not send your employees to Liberia at that time to interview people. The same can be true in worn-turn areas like Syria or similar locales.
Senn articulated that the better plan would be to remove the people you are interviewing and bring them to you or to a local hub outside of the impacted areas. That avoids a whole host of issues, as you do not want to have to pay for extra security, for example you do not want your employees to have to walk around with loaded machine guns protecting them; you have to make a judgment call as to where and whether these potential threats need to be addressed in some way.
- Protect Whistleblowers
Here Senn had some very practical advice, which while it might seem counter-intuitive on the surface due to certain legal decisions, it might actually provide more protections for companies in the long run. Senn began by noting the 2nd Circuit Court of Appeals ruling in the Liu case, which essentially found that the Dodd-Frank retaliation provisions that protect whistleblowers in the US do not apply abroad, so in other words, a foreign whistleblower brought a case saying, “I was retaliated against and I bring a case under the retaliation provisions of Dodd-Frank,” and they said, “No way, you can’t bring it.”
Senn believes that companies that use the Liu decision as a basis to retaliate against whistleblowers outside the US are wrong for several reasons. First, is that the Securities and Exchange Commission (SEC) has announced they will still pay whistleblower outside the US, who come forward and meet the requirements, the Dodd-Frank bounty of up to 30% of the penalty. This means that even if courts determine that the Dodd-Frank provisions do not apply for retaliation for foreign nationals, the SEC can still honor the communication and compensate the foreign whistleblower.
The second reason Senn listed is that the US Sentencing Guidelines make clear that part of an effective compliance and ethics program includes having a publicized system for employees or agents to report potential or actual criminal conduct without fear of retaliation. These Sentencing Guidelines apply to all US companies, both domestic and internationally. Senn believes that if your company retaliates against foreign whistleblowers, the US government can take that into account, which could be viewed in a negative way, meaning that you don’t have an effective compliance and ethics program.
Senn’s best practices around the issue of cross-border investigations are excellent points for you to review if you have to consider such an investigation. Further, if you retain outside counsel to lead your investigation, you can use her best practices as guideposts to scope, plan and assist your outside counsel going forward.
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© Thomas R. Fox, 2015