The three articles are: (1) “Complying With the Foreign Corrupt Practices Act: A Practical Primer”, authored by the University of Chicago Law School’s Corporate Lab, co-sponsored by Microsoft, and published by the ABA Global Anti-Corruption Task Force; (2) “The IP Practitioner’s ‘Cheat Sheet’ to the FCPA and Travel Act: Introducing the IP FCPA Decision Tree”, authored by Doug Sawyer and T. Markus Funk and published in the BNA Bloomberg Patent, Trademark & Copyright Journal; and (3) “Breaking Down the FCPA, Travel Act, and UK Bribery Act”, by T. Markus Funk, published in BNA Bloomberg White Collar Crime Report.
How to Keep Your Company Off of the Government’s Naughty List | Corporate Counsel (Ryan McConnell & Katelyn Richardson)
December 23, 2011 By Leave a Comment
The holiday season is here. The 2010 U.K. Bribery Act is on the books. And enforcement of the U.S. Foreign Corrupt Practices Act (FCPA) is on the rise. Gift baskets began arriving in the corporate mailroom weeks ago. But holiday gifts can raise conflict of interest issues and may be viewed as bribery depending upon the intent of the giver and value of the gift. Recent bribery cases against companies involving gifts include Alcatel-Lucent, RAE Systems, and Innospec. In-house counsel should ensure their corporate gift policy protects the company from government scrutiny.
Gifts can be particularly problematic for antibribery compliance programs. Thirty-eight countries have adopted the Organisation for Economic Co-operation and Development’s Antibribery Convention and enacted laws against foreign bribery. Both the FCPA and the U.K. Bribery Act prohibit gifts intended to influence decisions to award business or gain an improper benefit from foreign political or government officials, including employees of state-controlled entities. The U.K. Bribery Act and the U.S. Travel Act both outlaw commercial bribery involving gifts intended to influence business decisions.
via How to Keep Your Company Off of the Government’s Naughty List.
Preparing In-House Counsel for a New Year of Cybersecurity Threats | Corporate Counsel (Catherine Dunn)
December 16, 2011 By Leave a Comment
As CorpCounsel has discussed on these web pages before, 2011 has been a banner year for cyber attacks on company networks and corporate data breaches involving sensitive customer information. There’s been much discussion of how government and the private sector need to put their heads together on cybersecurity measures, just as laws governing data privacy continue to proliferate around the globe.
In-house lawyers need to stay ahead of these evolving issues in the New Year, says Alan Brill, who has liaised with a number of counsel as the senior managing director of the cybersecurity and information assurance division at the consultancy Kroll. And more often than he would have predicted, Brill says, it’s counsel who point out the digital red flags to their companies.
Having put together a “cybersecurity forecast” for the new year, Brill points to some of the specific internal and regulatory concerns that counsel will face in 2012. “It is far easier—in my experience—for counsel to prevent a problem than to solve a problem after it has occurred,” he says.
The Kroll analysis highlights areas where companies will be particularly vulnerable. Those include rapidly changing mobile technologies—think iPads and Android smartphones, all loaded with apps—which are often deployed by an organization before they can be adequately secured.
via Preparing In-House Counsel for a New Year of Cybersecurity Threats.
In-House Compliance Requires Company-Wide Efforts | Corporate Counsel
December 10, 2011 By Leave a Comment
When Frances McLeod and Greg Mason need to find missing money or probe a company’s compliance programs, they construct and analyze large datasets of the company’s financial transactions. About 75 percent of their global forensic accounting business is driven by compliance and enforcement issues, particularly those related to the U.S. Foreign Corrupt Practices Act (FCPA)—a priority area for U.S. regulators, and a top concern for general counsel.
Even though they’ve consulted with corporations and assessed market risks the world over, McLeod continues to be amazed by gaps in company compliance programs that bear on bribery and illicit payments. “There are a lot of companies that still don’t get it,” says McLeod, who worked in investment banking and on international banking and money-laundering investigations before co-founding Forensic Risk Alliance, a consultancy, in 1999.
Corporate Counsel Question Accountability in E-Discovery | Law.com
October 14, 2011 By Leave a Comment
Accountability and quantification are as significant hurdles as cost when corporate counsel shop for e-discovery software, a new report concludes.
Enterprise Strategy Group’s latest research, “E-Discovery Market Trends: A View From the Legal Department,” released Wednesday, includes results from 48 counsel at companies of at least 500 employees. Of those, 86 percent said e-discovery expertise is important when they hire outside counsel and 64 percent requested alternative fee arrangements, the report states.
Accountability, according to 71 percent of responding companies, focuses on sampling to track document review accuracy in individual cases. Comparing results to other cases was an example cited by 50 percent of companies, and comparing to other reviews was cited by 43 percent. Only 29 percent use software to measure individual reviewer productivity.
“Law firms have historically shown a certain lack of inertia in adopting technology, because productivity has been a four-letter word for them,” analyst and report co-author Katey Wood said, in New York. “Overwhelmingly they expect e-discovery to be a competency for their law firms. It’s very important to their selection criteria and their firms to be good at it. But there’s very little accountability. Most of them are not looking at measuring or accuracy metrics … The onus is on law firms to go figure it out,” she said.
What are GCs and Directors Thinking About Corporate Governance? | Law.com
August 17, 2011 By Leave a Comment
Risk
The top concerns for directors this year are operational risk, data security, and managing the company’s reputation.
Over 50 percent of GCs, meanwhile, cite major concerns about electronic discovery for litigation/ investigation, managing outside legal fees, and data security, too.
A bit further on down the line, at least a third of GCs consider governance/compliance, operational risk, the Foreign Corrupt Practices Act, and managing company reputation to be major concerns.
Dodd-Frank Act
Not many fans of the 2,300-page financial reform legislation in these parts. Directors and GCs were evenly aligned in their thoughts on Dodd-Frank: 94 percent of directors and counsel alike think the measures need to be re-evaluated, while 94 and 95 percent, respectively, think the law incentivizes employees to bypass internal whistleblower procedures and go straight to the SEC.
Additionally, most directors and GCs “agree that the ultimate impact of Dodd-Frank will be increased oversight, reduced earnings, and a less-attractive capital market environment for prospective public companies.”
Compliance
There’s some ambivalence amongst GCs about the possibility of regulatory actions against their companies. Fifty-six percent of general counsel said they are more fearful of regulatory action than in the previous year’s study, while 42 percent said their level of concern is about the same as before.
With regards to the Foreign Corrupt Practices Act, the landscape looks a little dicey: “Just 36% of responding general counsel serving companies subject to FCPA believe their board and management have done a good job with FCPA training and compliance. Another 63%. . .believe there is room for improvement.”
Finally, 69 percent of general counsel respondents think that regulatory compliance is what will increase their law department’s workload the most over the next year. That’s up from 37 percent of GCs who thought that way in 2009.
via What are GCs and Directors Thinking About Corporate Governance?.
Electronic Litigation Challenges for Corporate Counsel: An Interview with Bryan Ghows | #ICEL2011
July 12, 2011 By Leave a Comment
The e-Litigation Blog team had a chance to catch up with Bryan Ghows who is chairing the Corporate Counsel Session on Day 1 of the Conference.
Bryan brings unique insights from both sides of legal practice – as a lawyer in private practice specialising in IP / IT law at Singapore law firm, Unilegal LLC; and prior to that, fifteen years as corporate counsel at Microsoft and IBM.
At Microsoft, Bryan was the lead attorney for the Windows division and dealt with legal issues relating to all Windows products. The “reasonable anticipation of litigation” standard adopted by the Federal Rules of Civil Procedure in the United States meant that companies like Microsoft, with stringent compliance policies, was constantly issuing litigation hold notices. Bryan’s role as corporate counsel for Microsoft involved administering the company’s litigation hold processes as well as pre-litigation records management and litigation readiness counseling.
We asked Bryan what he considered to be the foremost challenge facing corporate legal departments today.
He answered that the exponential growth of email and the proliferation of electronically stored information has changed the way organisations approach litigation, due diligence and regulatory investigations, both from a legal and operational standpoint. In complex litigation today, document review encompasses anywhere between 60 – 90% of the total litigation cost. There is a sense that in-house lawyers must step up to the mark quickly as the disciplined management of electronic data is increasingly a core skillset of corporate counsel; and the application of “best practices” to legal holds and records management paramount in driving the imperative to manage ballooning litigation cost.
“In Asia, the unique challenges arising from being new to electronic discovery means that legal professionals, both in-house and in practice, find themselves on a steep learning curve” says Bryan, “we have been seeing an increased demand for legal professionals with e-discovery expertise to help corporations navigate tricky e-discovery issues and manage compliance risk“.
Additionally, the embrace of emergent internet technology by companies means that their legal departments continually grapple with information risk from new sources, such as Web 2.0 tools, social media, cloud computing, unified communication and virtualization. These technologies present e-Discovery challenges that will keep in-house legal professionals (and their panel law firms) on their toes!
continued @ Electronic Litigation Challenges for Corporate Counsel: An Interview with Bryan Ghows.
10 Big FCPA Compliance Tips for Small Legal Departments | Law.com
June 28, 2011 By Leave a Comment
Earlier this month, the Association of Corporate Counsel published a resource for its members, “Top Ten Basics of Foreign Corrupt Practices Act Compliance for the Small Legal Department.”
The article, written by California attorney Stephen Clayton, maps out baseline standards for hewing to the FCPA, including “Train your board, management, employees and third parties who distribute your products” (#5); “Include clear FCPA terms in every international contract” (#10); and “Plan for the likelihood you will have to conduct high quality international internal investigations.”
The full list helps outline a clear framework for smaller companies (and their legal departments) that are working in complex or high-risk international business environments.
via 10 Big FCPA Compliance Tips for Small Legal Departments.
War of the Worlds: Corporate Governance Standards Collide
May 19, 2011 By Leave a Comment
(Business Law Currents) Conflicting corporate governance standards cause strife for issuers as the discrepancies between domestic and international norms clash over issues like political donations and short notice periods.
Few companies would argue that the highest standards of corporate governance are unimportant, but differences between international governance standards can present challenges for companies, as demonstrated by recent UK annual general meeting (AGM) disputes with interfering foreign investors.
Hammerson plc, the European property company, was among those that recently faced public humiliation at the hands of investors when a minority Canadian shareholder operating under North American assumptions chose to reject a resolution that would be considered standard practice in the UK.
Kicking out a proposal to reduce the notice period for Extraordinary General Meetings, the case presents a perplexing conundrum for companies who will now have to decide whose corporate governance standards to apply.
via War of the Worlds: Corporate Governance Standards Collide.
