Page 23 - January 2019 | Cleveland Metropolitan Bar Journal

CRIMINAL LAW

• Identifying all individuals involved or and remediating the problems they inherited.” be carefully discussed with a trusted advisor.
responsible for the misconduct; Miner also encouraged companies that discover While the consequences of self-disclosure are
• Implementing an enhanced compliance corruption issues during the pre-acquisition mitigated by the Enforcement Policy, it still
program and internal controls; due diligence process to communicate with may cause important collateral consequences
• Remediating fully, including discipline for DOJ before completing the transaction. for the company, its executives, and its
those involved; and Principal Deputy Assistant Attorney operations. Ay, as Hamlet would say, there’s
• Disgorgement. General John Cronan noted that DOJ “has the rub.
On May 9, 2018, DAG Rosenstein again taken [these] affirmative steps to make [its]
emphasized the importance of voluntary prevailing ‘rules of the road’ as plain and
disclosure and cooperation in announcing predictable as possible for prosecutors, Adam Hollingsworth is a former
a new DOJ policy that encourages companies, and business leaders.” Cronan federal prosecutor who assists clients
coordination among DOJ components and recently answered some outstanding in government investigations and
other agencies when investigating the same questions regarding what DOJ expects in defends them against criminal
conduct, which happens often in the FCPA terms of the substance and process of a self- prosecutions. He represents clients
context, as DOJ and SEC have independent disclosure and subsequent cooperation. in matters involving the Foreign Corrupt Practices
authority to enforce the statute. Invoking Cronan indicated that companies should be Act, False Claims Act, and cybersecurity. During
a football analogy, Rosenstein referred to prepared to provide the following information his tenure as Assistant United States Attorney in
it as DOJ’s effort to avoid “piling on,” or during initial communications with DOJ, and Cleveland, he prosecuted cases involving
the disproportionate effect of imposing that it expects “a regular and consistent flow multimillion dollar investment and securities fraud,
overlapping penalties by multiple authorities of information”: health care fraud, money laundering, bribery, public
for the same underlying issue. The four key • Details of what the company knows about corruption, embezzlement, identity theft, and
elements of the “piling on” policy are: the misconduct; criminal tax violations. He has been a CMBA
• The government’s criminal enforcement • Nature, scope, and status of the internal member since 2010. He can be reached at (216)
authority should not be used against a company investigation; 586-7325 or ahollingsworth@jonesday.com.
for purposes unrelated to the investigation and • Steps taken to preserve and collect
prosecution of a possible crime; potentially relevant evidence, including
• Where DOJ attorneys in different electronic communications; Vanessa Healy represents individuals
components or offices investigate the same • A list of individuals interviewed or who may and corporations in investigations
misconduct, those attorneys must coordinate be interviewed in the future, including third by the U.S. Department of Justice
to achieve an overall equitable result; parties; and and Securities and Exchange
• DOJ attorneys, when possible, should • Identification of the issues the company Commission. She has significant
coordinate with other federal, state, local is not prepared to address at the time of experience conducting cross-border internal
and foreign enforcement authorities seeking disclosure. investigations related to allegations of fraud and
to resolve a case with a company for the DOJ has significantly clarified the “rules corruption, including violations of the Foreign
same misconduct; and of the road” and potential upside for self- Corrupt Practices Act. In addition, she has counseled
• The policy sets forth factors that DOJ disclosure in the FCPA context. It has clients on compliance with anticorruption laws
attorneys may evaluate in determining established a framework designed for both and assisted with pre- and post-acquisition
whether multiple penalties serve the sides to benefit from greater transparency in compliance due diligence. Vanessa recently served
interests of justice in a particular case: the face of discovered wrongdoing. Whether as an adjunct professor of law at Case Western
(i) the egregiousness of the wrongdoing; ‘tis nobler in the mind (and in practice) to Reserve University, where she co-taught a course
(ii) the statutory mandates regarding accept this offer of leniency by any company on international criminal law. She has been a
penalties; (iii) the risk of delay in finalizing that suspects it might have an FCPA issue CMBA member since 2014. She can be reached at
a resolution; (iv) and the adequacy and remains an important question that should (216) 586-1058 or vvhealy@jonesday.com.
timeliness of a company’s disclosures and
cooperation with DOJ.
In July 2018, Deputy Assistant Attorney Services for more than
45 LANGUAGES:
General Matthew Miner announced DOJ’s •Transcripts/Translations
expansion of the Enforcement Policy by •Depositions
applying its principles to successor companies •Witness Interviews/Expert
Testimonies
that uncover FCPA wrongdoing in connection •Courts: Civil, Family,
with a merger or acquisition. Miner stated, Roxane J. King Juvenile and Probate
•Immigration
“[I]f an acquiring company unearths CEO •Private and Non-Profit
wrongdoing subsequent to the acquisition, we 216.765.3700 Organizations
•Workers’ Compensation
want to encourage its leadership to take the steps 1536 St. Clair Avenue, Cleveland, OH 44114 •Hearing Resolutions
outlined in the FCPA [Enforcement] Policy, and info@courtcertifiediu.com • www.courtcertifiediu.com •Arbitration
when they do, we want to reward them ... for
stepping up, being transparent, and reporting
January 2019 Cleveland Metropolitan Bar Journal | 23