Hogan Lovells US LLP updates

Compliance and privilege – an overview
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • May 28 2018

Compliance officers often report to the legal department or are staffed with qualified lawyers, making it difficult to distinguish when the compliance officer is serving in a legal capacity, rather than a compliance one. However, drawing a clear distinction between these functions, conducting internal investigations under the direction of counsel and making the legal purpose of communications or documents clear will make the best possible record to show that documents should be protected by privilege.

New administration, same policy? Only time will tell
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • March 19 2018

With few Foreign Corrupt Practices Act (FCPA) corruption investigations resolved under the Trump administration's watch, it is too early to weigh up how the administration will affect enforcement or settlements in the long term. On its face, the new FCPA Corporate Enforcement Policy signals a more business-friendly approach by removing the spectre of a monitor in many situations and by committing to a presumption of a declination in certain circumstances.

Seven reasons to pay attention to new Foreign Corrupt Practices Act Corporate Enforcement Policy
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • January 29 2018

Companies now have even greater incentives to have strong, meaningful Foreign Corrupt Practices Act compliance programmes. When the deputy attorney general recently announced the new enforcement policy that will guide the US Department of Justice, he made it clear that the government wants to create incentives for companies to police themselves when it comes to bribery and corruption.

DOJ announces one of largest False Claims Act recoveries concerning government small-business programmes
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • October 02 2017

Two recent cases before the Department of Justice (DOJ) have sent a signal that the DOJ may become more proactive in combating small-business contracting fraud. These cases underscore the importance of ensuring that small-business eligibility representations are accurate, as the penalties for misrepresentation can be severe.

Application of Foreign Corrupt Practices Act for energy and natural resources companies
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • July 17 2017

For energy, mining and resources companies, the cost of corruption – and getting caught – is real. Energy and mining companies, along with other resources companies, remain a major focus of bribery and corruption investigations worldwide. The government wields a potent weapon against bribery and corruption in the form of the Foreign Corrupt Practices Act.

Why healthcare and life sciences companies need to step up compliance efforts
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • June 19 2017

In the past, compliance and remediation in the context of healthcare investigations were typically seen as afterthoughts. However, compliance efforts are now being more closely scrutinised by prosecutors. The Department of Justice recently issued an 11-part series of questions styled as guidance on corporate compliance programmes. Interestingly, it is a series of questions, not a series of answers. Companies are going to have to work the answers out themselves with their compliance departments and counsel.

Bribery and corruption developments for aerospace, defence and government services companies
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • May 01 2017

In recent years, US and Western European military spending has decreased as military spending in other parts of the world has risen. As a result, aerospace, defence and government services companies increasingly rely on sales to foreign governments to grow business revenue and are thus at a more significant risk of investigation for violations of the Foreign Corrupt Practices Act.

US bribery and corruption outlook
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • February 20 2017

To undergo a Foreign Corrupt Practices Act investigation entails significant risk. Since 2008 at least 10 corporations have agreed to pay more than $300 million in penalties to resolve such investigations. Defence costs associated with a global bribery or corruption investigation can also run into the millions before any penalties are assessed. A number of developments that emerged during 2016 will have broad implications for the coming year.

Enforcing white collar criminal law during the Trump administration
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • January 23 2017

As the Senate prepares to confirm Senator Jeff Sessions as the new attorney general and to consider nominations for other high-level positions in the Justice Department, there are many questions – and few answers – about how the new leadership in the Justice Department will approach the prosecution of white collar crime during the Trump administration.

Och-Ziff settlement shows DOJ intends to enforce Foreign Corrupt Practices Act strictly
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • October 31 2016

The Department of Justice (DOJ) recently announced a landmark resolution concerning violations of the Foreign Corrupt Practices Act. The DOJ and the Securities and Exchange Commission entered into a $413 million settlement with one of the world's largest hedge funds. This settlement indicates that the DOJ intends to enforce the act strictly with little regard for the industry involved or the financial consequences.

Setting a rogue to catch a rogue: the changing face of Lincoln's Law
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • August 22 2016

Since January 2009, the government has recovered more than $30 billion through False Claims Act cases, more than half of which was recovered from cases involving alleged fraud against federal healthcare programmes. False Claims Act cases are now more complex, lucrative and healthcare focused than ever – a far cry from the act's humble beginnings as a solution to the problem of fraudulent sales to the military during the American Civil War.

The problems that the Justice Department pilot programme is trying to solve
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • July 18 2016

To understand how the government will regulate companies in the future, it is important to understand the problems it is currently trying to solve. In its efforts to enforce the Foreign Corrupt Practices Act, the US Justice Department faces a particularly difficult problem: how to incentivise companies to volunteer information about their own illegal conduct while retaining its ability to punish those companies for breaking the law.

Impact of Yates Memorandum on document production in corporate investigations
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • April 25 2016

With the publication of the Yates Memorandum, the Department of Justice has reinforced its focus on seeking accountability from individuals. Employees may thus be at greater risk from corporate investigations, particularly with respect to their work emails and other documents, and company counsel may receive more requests from individual counsel regarding the production of employees' documents.

Companies may feel pressure to disclose privileged materials under new DOJ policy
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • February 29 2016

The Yates Memorandum announced a new US Department of Justice (DOJ) policy that focuses DOJ attorneys on pursuing the individuals responsible for corporate wrongdoing. In considering the practical effects of the new policy, a question arises about the potential for it to increase the pressure on companies to provide legally privileged information to the DOJ in hopes of receiving cooperation credit.

Unintended consequences of the Yates Memorandum
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • December 07 2015

The Department of Justice's (DOJ) Yates Memorandum aims to hold individuals, not just corporations, accountable for corporate misconduct, in response to criticism that it fails to punish executives who precipitate wrongdoing. However, it remains to be seen whether the policy will advance the DOJ's law enforcement interests or hinder them, as there may be unintended consequences for companies, employees and the DOJ itself.

DOJ calls for pursuit of executives in corporate investigations
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • October 19 2015

The US Department of Justice recently announced a formal policy that provides for the vigorous prosecution of culpable individuals who are responsible for corporate wrongdoing, which is consistent with shifting trends in prosecution. An increased effort to prosecute high-ranking executives would result in significant changes to how investigations affect companies and how companies respond to investigations.

Implications of Supreme Court decision on False Claims Act
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • September 28 2015

The recent Supreme Court decision in Kellogg Brown clarifies that the Wartime Suspension of Limitations Act will not toll the statute of limitations for civil claims during times of war or the authorisation of military force. This reverses the trend that had permitted the use of the act in civil False Claims Act matters and protects defendants from indefinite tolling in civil matters.

How law-abiding citizens can be ensnared in federal criminal investigations
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • July 20 2015

There are many subtle ways in which a law-abiding citizen can commit a federal felony under US law in a matter of minutes. The pressures of life can put people in situations where they take morally questionable actions that are prohibited by federal criminal law leading to criminal penalties. The average citizen should thus realise how broad US criminal law can be and how it can be applied to him or her.

Foreign Corrupt Practices Act: 2014 in review
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • May 05 2015

Although the government has added new players to its line-up, the game seems to be the same in the world of Foreign Corruption Practices Act enforcement, as the Department of Justice (DOJ) and the Securities and Exchange Commission continued to push for strong enforcement in 2014. As in 2013, the DOJ continued to emphasise the importance of corporate compliance and cooperation with investigators.

When do white collar criminal statutes apply to extraterritorial conduct?
Hogan Lovells US LLP
  • White Collar Crime
  • USA
  • April 07 2015

The Supreme Court has steadily restricted the recovery available to civil litigants for conduct that occurred outside the United States and prosecutors have continued to push for the broad application of criminal laws to extraterritorial conduct, particularly in white collar criminal cases. Courts have only just begun to grapple with how to analyse whether a criminal statute applies extraterritorially.

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