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How smart companies comply with the Foreign Corrupt Practices Act | Smart Business (Jason de Bretteville)

March 1, 2013 by Leave a Comment

Enforcement of the Foreign Corrupt Practices Act (FCPA), which addresses the bribing of foreign officials, has increased significantly against both large multinational companies and small, private, domestic companies.

“If you’ve been hearing about the FCPA but haven’t addressed it fully, there is a reason to take the concern seriously from a reputational risk perspective and because you could face serious criminal and civil consequences if there is a breach,” says Jason de Bretteville, a shareholder at Stradling Yocca Carlson & Rauth.

There is also reason to be familiar with foreign laws. U.S. legislation, he says, only regulates bribes to foreign officials, which can include any employee of a government-owned or controlled entity. Foreign legislation, including the U.K. Bribery Act, doesn’t maintain this distinction and prohibits potentially corrupt payments to both foreign officials and private counterparties, highlighting the need for due diligence.

Smart Business spoke to de Bretteville about ways to limit FCPA exposure.

What are the highest areas of risk U.S. companies may tend to neglect?

One area businesses often discount is the risk posed by foreign distributors. Companies tend to mistakenly assume that if their title transfers to a foreign distributor, there is no risk posed to them if the distributor engages in corrupt payments, and that’s not the case.

The lack of understanding of a counterparty’s ownership structure is another risk. For example, in China and former Soviet-bloc countries, there is government ownership of what Westerners may assume are purely commercial entities. You may think you’re engaging — having a dinner or entertaining — a private party but, in the view of U.S. regulators, you’re entertaining a foreign official.

One evolving risk area is engaging in cooperative research with academics. They may hold dual positions and privileges at foreign academic institutions that could render them a foreign official.

via How smart companies comply with the Foreign Corrupt Practices Act | Smart Business.

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How to reduce litigation costs and exposure through better email habits | Smart Business

January 2, 2013 by Leave a Comment

The cornerstone rule of discovery in civil litigation is that parties to a lawsuit must preserve, gather and produce relevant documents.

However, “it is becoming increasingly difficult and expensive to carry out this basic obligation, given the staggeringly high volume and informal nature of our electronic communications in the workplace,” says John Shonkwiler, a partner at Novack and Macey LLP.

Smart Business spoke with Shonkwiler about the importance of forming better emailing habits.

What are some ways to improve emailing habits?

Stop ‘reflex’ emailing. Too often, we respond to email immediately. This is the texting culture invading the workplace, which is an environment that demands better judgment and discretion.

It is not inconsiderate or unprofessional to deliberate before responding to email.  Sometimes just waiting 10 to 15 minutes can make a big difference. Except in those rare instances where an urgent response is called for and cannot be made by phone, people should not fire off immediate responses.

via How to reduce litigation costs and exposure through better email habits | Smart Business.

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How to prepare for and handle multi-jurisdictional litigation | Smart Business (Frederick Levin)

October 1, 2012 by Leave a Comment

In multi-jurisdictional litigation, a client faces multiple lawsuits in more than one jurisdiction, asserting substantially similar claims arising from a common alleged event, transaction or practice.

“You have litigation going on in several jurisdictions raising the same set of issues, which can lead to duplication of expenses and the risk of inconsistent verdicts; defendants must manage that risk,” says Fredrick S. Levin, a member at Dykema Gossett PLLC.

Smart Business spoke with Levin about strategies one can employ to manage multi-jurisdictional litigation.

Why does multi-jurisdictional litigation need to be handled differently from routine litigation?

Multi-jurisdictional litigation needs to be treated specially because of the greater potential exposure. Take, for instance, a dispute over a small fee. Using a traditional cost-benefit analysis, it may seem to make sense to let your internal claims department handle it, or to employ the firm regularly retained for routine, lower-dollar cases.

However, ‘routine’ treatment may not be best. For a single, routine case, it may not make sense to spend the money to bring a motion to dismiss or take significant discovery. It may be less expensive to have a short trial. But, if the case goes to trial and the result is an adverse judgment, that judgment might be used against you in similar cases being heard across the country. The issues decided adversely could provide the seeds for a class action on a state or nationwide basis. If a claim challenges an allegedly common practice or has been or may be raised in more than one jurisdiction, there are a number of techniques for managing multi-jurisdictional litigation.

via How to prepare for and handle multi-jurisdictional litigation | Smart Business.

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How electronic discovery during litigation is impacted by information stored in the cloud | Smart Business

May 7, 2012 by Leave a Comment

Cloud computing is the marketing focus of many IT companies.

Ads touting the benefits of cloud computing and the “cloud readiness” of software products are visible in airports, print media and on TV, and surveys predicting the rapid adoption of cloud computing solutions appear regularly. But how do cloud computing solutions affect the production of electronic documents and information in a litigation setting?

Smart Business spoke with James P. Martin, CMA CIA CFE, managing director of Cendrowski Corporate Advisors, regarding the issues that can arise when attempting to obtain information when a party has information stored in the cloud.

What is cloud computing?

Cloud computing describes an IT model in which computing resources can be obtained and utilized on an as-needed basis; this is why cloud computing is often referred to as ‘utility computing.’ The end user is provided a turnkey solution that is supported and maintained by the service provider at a remote location.

Cloud computing is enabled by rapid, reliable Internet communications, and, in fact, ‘the cloud’ is a term referring to the pool of resources hosted on the Internet.

What are some common cloud solutions that should be considered in litigation?

Cloud computing applications include hosted email products, such as Gmail or Hotmail, picture hosting services, text message services, hosted document processing, as well as social media services such as Facebook, Myspace, or dating sites. These sites would potentially have data that could be relevant to the litigation.

How does a cloud solution affect electronic discovery?

Moving to a cloud computing solution does not remove an organization’s document retention requirements, and many cloud solutions tout their ability to help the organization meet statutory requirements.   If the cloud vendor performs services to the public, access to the data stored in that solution would be subject to the restrictions of the Stored Communication Act.

It is also important to understand that this is an emerging area of law. Third-party solutions are evolving rapidly, and social media services are creating issues and carrying information that was inconceivable a few years ago. The legal system is dealing with emerging issues related to these new technologies and case law is changing rapidly.

via How electronic discovery during litigation is impacted by information stored in the cloud | Smart Business.

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Concept Searching’s new Smart Content Framework : KMWorld

February 5, 2012 by Leave a Comment

Concept Searching has announced the Smart Content Framework for information governance. The company says the toolset provides an enterprise framework to mitigate risk, automate processes, manage information, protect privacy and address compliance issues.

Concept Searching describes the Smart Content Framework as a multi-disciplinary solution—delivered through its technologies—that encompasses the entire portfolio of information assets. Underlying the Framework are functionalities to transparently tag content, classify it to organizational taxonomies, preserve and protect information through the automatic identification of records and privacy data, and act as a migration tool, Concept Searching says.

via Concept Searching’s new Smart Content Framework : KMWorld.

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