Partnering in the Defense Against Global Investigations and Prosecutions by the United States Government

Events / October 21, 2016
1:30 – 6:00 p.m. JST

Fronteo, Inc. Meisan Takahama building, 2-12-23, Kounan, Minato-ku, Tokyo 108-0075, Japan

Please join BakerHostetler for a briefing from leading defense counsel and former government regulators and prosecutors regarding the increase in U.S. investigations and prosecutions against foreign companies for financial-based conduct. The seminar will address trends and best practices in antitrust investigations and actions; the expansion of Foreign Corrupt Practices Act enforcement actions, the new DOJ Pilot Program and the proactive use of monitors to prevent against future individual and corporate misconduct; the growing scrutiny of potential accounting violations and the increase in “whistleblower” threats by competitors and partners. This briefing will provide Japanese companies and practitioners with the fundamentals of antitrust, anti-corruption and securities law and best practices for handling investigations and prosecutions by the U.S. government.

Japanese version of the flyer is available here.

The seminar have simultaneous interpretation, and will offer CLE credit in California and New York.

13:40 – 14:40

Life in and after the criminal investigation: The crashing waves of the class action suites in the US: how will Japanese corporations ride them out?

Speaker: Jack Fornaciari, Partner, BakerHostetler

  • Introduction
    • Trend in antitrust investigation – has it calmed down or will it continue?
    • The first 6 steps to take in the event of a dawn raid: “textbook” vs. “hands-on”
  • Setting up “protocol” in case of government investigation
    • Legal department should have a protocol in place before crisis strikes
    • Conduct “dawn raid drill”
    • Protect the company – litigation hold issued at the onset of investigation can prevent company from being accused of Obstruction of Justice as investigation progresses
    • Obstruction of justice – if included as one count in the Information issued by the DOJ, that can lead substantial additional fines and more importantly, personal charges
    • Good preparation as part of internal compliance program: importance of effective compliance program in place (i.e., training on antitrust prevention, dawn raid drill, company-wide policy, etc.)
  • Choose the “right” lawyer
    • How to deal with US lawyers, what to expect and what to demand (i.e., lower rates, regular reports on all matters, the use of e discovery vendors and the competence of some vendors)
  • Minimize damage
    • Benefits/downsides of cooperation
    • How to calculate fines with examples. This is the presentation on how to lower the fine. It also includes other components of a criminal resolution, including carve outs and the Yates Memo.
  • How to deal with class action lawsuits
    • What to expect in class actions/opt outs, how to lower costs of class action litigation/opt outs.
    • The role of arbitration/mediation
    • “Fight or flight” – treating an antitrust case like a business project, and the reasons for it

14:40 – 14:50 - Break

14:50 – 16:50

FCPA New Pilot Program, Proactive Use of Outside Monitor and Reliance on Whistleblowers in 2016 and Beyond: New Theories of Liability for the Corporations and Officers

Speakers: John J. Carney, Partner, BakerHostetler; Jonathan R. Barr, Partner BakerHostetler

  • Foreign Corrupt Practices Act (FCPA) new Pilot Program, 50 percent increase in line prosecutors and an overview of U.S. Department of Justice (DOJ) top priorities from former DOJ prosecutors.
  • Discussion of Yates Prosecution Memorandum and DOJ policy statements on individual liability, including the DOJ’s increase in resources to investigate and prosecute FCPA violations.
  • Expanding practice of bringing international cases and lessons learned.
  • Recommendations for the FCPA and accounting cases: review of manipulation cases and theories, and strict liability for false books and records.
  • Business risks of FCPA violations include reputation damage, civil and criminal penalties and competitive disadvantage such as disbarment from government contracts
  • Proactive defense strategies: avoiding and defending FCPA actions.
FCPA, Accounting and Whistleblowers in 2016 and Beyond: New Theories of Liability for the Corporations and Officers (Continued)
  • Corruption and Accounting - how even small improper payments can have a major impact on a company's financial statements
  • Overview of U.S. whistleblower laws including confidential reporting, non-retaliation provisions, and mandatory bounties.
  • Recent cases involving international corporations and increasing payments to non-U.S. citizens.
  • Proactively handling potential whistleblowers within and outside the organization prior to involvement by U.S. government or regulators 
  • Best practices for conducting investigations and defending against civil and criminal actions in whistleblower cases. 
  • Attorney client privilege considerations in internal investigations
  • Tension between relationship between the corporation and its employees ,and the “Yates Memo” emphasis by the DOJ on individual liability, and attorney-client privilege considerations.

16:50 – 18:00 - Cocktail Reception