Doel joins FRA as the firm’s latest Director in the Forensic Accounting team based in FRA’s New York Office. Doel brings with her over 17 years of experience as a compliance officer and has managed investigations into potential fraud, corruption, conflicts of interest and other types of corporate misconduct.

Prior to joining FRA, Doel spent 15 years with IBM as in-house counsel and compliance officer where she developed compliance programs to fit varied business units including risk assessments, compliance-focused communications and trainings, and remediation actions for risk mitigation and enhancement of controls. Doel is a native Hindi and Bengali speaker, and has lived and worked in Mumbai and Bangalore in India, and Johannesburg, South Africa. Doel combines her work and other experiences to help clients understand the often complex correlation between culture, business ethics, organizational justice and building trustworthy organizations.

Doel shared her excitement to join FRA and the New York Office. “The firm has built a strong reputation in areas where I have deep interest and experience, including preventative controls and managed compliance. The team is truly diverse in background, skill and expertise. Every member I have met I have found to be thoughtful, genuine, and deeply engaged. The energy across the firm is palpable.”

FRA Director, Edward Nkune, attended GIR Live Frankfurt on 6 November. Below are his key insights from the event.

Introductory speaker

Spoke with a German focus but first examined the position in the US with regard to US led FCPA investigations. There is strong interdependence between Germany and the US. Obviously, this leads to criminality and acts by German criminals which can affect US entities leading to US investigations.

A number of high profile cases including Siemens, Mannesmann and “Dieselgate” have raised the profile of white collar crime in Germany but it is still a small fraction of total criminality.

With regard to investigations, there is a fundamental clash between an internal investigation (which tries to get as much info as possible) and attorney client privilege.

It has become the norm in Germany to retain specialist law firms for several different purposes. In the US, internal investigations into potentially criminal acts are privileged but in Germany they appear to be subject to the code of criminal procedure. This is contradictory since the monopoly for criminal investigations in Germany belongs with prosecutors.

Internal investigations are not constrained by the same rules that law enforcement has and have greater resources. During interviews under labour law, individuals are obliged to answer which is again in conflict with clearly defined criminal proceedings rights and safeguards. Protection has been developed against state not against other individuals.

Panel discussion – Dawn Raids in Germany

• Protecting a company needs consideration of which jurisdiction companies should store documents which is a bad state of affairs and could obviously cause direct issues with regard to perceived cooperation.
• The number of internal investigations will go down and their quality will be lower and there will be further development of keeping data overseas, including interviews, if they occur at all.
• Company law in Germany requires a company to “get to the bottom of things”.
• Maintaining a scandal is bad and main impact is reputation and loss of key people.
• Internal counsel don’t wish to be seen as the longer arm of the prosecutor.
• US prosecutors are very clear about a price list. They expect 1,2,3,4. If not, there is no declination. Not the same in Germany.

Panel discussion – Cross Border Investigations

• US lawyers were alarmed by the raid on JD. Privilege is drummed into them and every decision they make considers it.
• Internal counsel from DB (Robert Muller) suggests that they assume everything will be handed over to someone e.g. waiving privilege so need to consider this when something is created.
• Huge difference between regulated financial institutions and other organizations since regulated bodies have to demonstrate that they have investigated properly.
• Regulator will also expect a firms records to be accessible within the country and not offshored.
• Huge conflict between German labour law and e.g. DFS with regard to not allowing sacking versus demonstrating overhaul of poor management.
• Criminal offence, Swiss Blocking statute against removing evidence for overseas investigations by law enforcement. Even interviews!! Conflict with DOJ who says you must provide evidence. Need to seek authorization from Swiss authorities.
• Makan Delharim, head of antitrust calling for global alignment in the process may lead to concerted efforts rather than sequential and this speed things up.

 

GIR Live Frankfurt 2018

FRA Director, Edward Nkune, attended the Business Crime and Compliance conference hosted by Pinsent Masons on 8 November. Below are some of his key insights from the conference.

SFO

• Lisa Osofsky (the new SFO Director) still expects that the SFO will maintain its prominence and independence.
• DPAs will continue. £53m budget for the next three years means that core and blockbuster funding are blended. The SFO are therefore able to use resources more efficiently.
• Challenging areas of the law is part of the SFO remit. Understand the recent defeats and criticisms but does not mean it will be more risk averse.
• DPAs are designed to encourage good corporate ethical behavior. Examples of poor behavior and a lack of cooperation are:
  • Providing detail about lower levels of wrongdoing in one particular jurisdiction but keeping quiet about higher levels of wrongdoing in another.
  • Poor narrative and lack of detail with regard to reporting.
  • Hiding behind a cloak of commerciality.
• Corporates need to understand that dialogue with the SFO is not a civil negotiation.  It is not an equal conversation. Burglars understand who holds the power when they are in a cell talking to the police but a CEO of a multinational called in for an interview might not realise this.
• There will be more focus by the SFO on the detail of an organisation’s compliance regime.
• The future areas of interest for the SFO will involve Bitcoin and other virtual currencies.
• The ENRC privilege matter should be taken on its facts and does not mean that all cases can have magical privilege. SFO were heavily involved at the beginning so it’s not a real leap to think that ENRC documentation might be privileged.

General

• European Bank for Reconstruction and Development (EBRD) investigations can lead to world debarment.
• Whilst initially companies may not fear debarment, it could cause future problems for them with their suppliers or customers with regard to supply chain cleanliness.
• Compliance is not a tick box process. You don’t just do it once and then consider it done. It is an ongoing process.
• Trend for companies with regard to transparency explosion. UK companies ahead of US.
• Transparency International are producing a large report showing how transparency can be good for business. Anti-corruption benchmark, 200 questions, mapped to US, France and UK. Score with regard to Transparency Index and their peers.

 

 

FRA Partners Neil Keenan and FRA Directors Masako Asaka, Danielle Logue, and Mike Trahar attended GIR Live DC. This year’s event was highly focused on the Justice Department’s new FCPA Corporate Enforcement Policy. A keynote from John Cronan, Principal Deputy Assistant Attorney General, Criminal Division, US Department of Justice, and session on emerging issues in the cross-border regulatory environment rounded out the day. Masako shares key insights from the day below.

Upon the first anniversary of the DOJ’s new FCPA Corporate Enforcement Policy, the overarching theme of the panels and keynote revolved around emerging trends in DOJ and SEC enforcement. Throughout the day, a few key points remained at the top of the discussion:

Voluntary Self-Disclosure

Though not guaranteed for a declination, it is still very much recommended by regulators. Similarly the DOJ takes the stance that timely disclosure is crucial to securing benefits, before whistleblower complaints, government investigation, and/or evidence destruction. In the eyes of the DOJ, ‘timely’ reporting refers to relatively soon after internal investigation is completed. The DOJ also stressed the importance of companies only investigated the bare minimum, just enough to report.

Declination

As shared by the keynote, John Cronan, timely and voluntary disclosure, ongoing and continued cooperation, enhanced and proven compliance programs, changes in C-Suites and company environments, and robust investigation are all key elements for declination consideration.

Individual Accountability

The DOJ will continue to focus their efforts on prosecuting individuals to hold them accountable for their actions.

Monitorship

In light of the new guidance issued by the head of DOJ’s Criminal Division, Brian Benczkowski, the DOJ is planning to hire more lawyers with compliance experience so that they can determine whether or not companies had established a working compliance program, ultimately determining wither a monitor is necessary.

Finally, when undergoing an investigation, companies should prepare to discuss a wide range of information to the government, including but not limited to investigation steps taken, individuals involved, responsible parties, outside counsel and accounting firm involvement, steps taken to preserve and collect data, and documents shared with employees and interviewees.

For more on GIR Live DC and future GIR events, visit their website.

The pharmaceutical, biotech and medical device industries are increasingly facing a more challenging regulatory and enforcement landscape throughout Europe. The program addresses the legal, regulatory and compliance issues faced by pharmaceutical, biotech and medical device manufacturers working in healthcare compliance in Europe.

FRA Partner, Yousr Kahlil, will be speaking in Paris on 6 November, on the panel ‘Data Driven Analysis for Compliance Programs: Forensic Accounting and Data Analytics.’ Yousr will discuss the role of forensic accounting in investigations; how data analytics can enhance compliance programs and how to identify and manage potential risks.

Healthcare Compliance Certification – European Program