us export controls and economic sanctions_what you need to know about the fcpa

Wednesday, February 23, 20118:00 a.m. – 10:30 a.m.

The International Center | 203 S. St. Mary’s StreetSan Antonio, TX 78205

What You Need to Know About U.S. Export Controls, Economic Sanctions, and the Foreign Corrupt Practices Act (FCPA)

Fulbright & Jaworski L.L.P.

U.S. Export Controls and Economic Sanctions: Overview

Free Trade AllianceSan Antonio, TXFebruary 23, 2011

Agenda

Overview of U.S. Trade ControlsWhy Comply?Compliance Process Best Practices

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Compliance Resources

Overview of U.S. Trade Controls

Export ControlsEconomic Sanctions and EmbargoesAnti-boycott ControlsOther Controls:

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U.S. Customs LawsEconomic Espionage Act (EEA)

“Dual Use” Export Controls

Main regulator: U.S. Commerce Department, Bureau of Industry & Security (BIS)Regulations: Export Administration Regulations (EAR)

Product Destination Controls: products listed on Commerce Control List (CCL) according to Export Control Classification Number (ECCN)End Use/End User Controls

Penalties:Under the International Emergency Economic Powers Act (IEEPA)

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g y ( )Civil fines (up to the greater of $250,000 or twice the value of the transaction)Criminal fines (up to $1 million) or if an individual, imprisonment (up to 20 years), or both

Possibly greater fines if imposed under the Alternative Fines Act, which (among other things) allows fines to be imposed up to twice the pecuniary gain or loss of the transaction

Seizure and forfeiture of goodsLoss of export privilegesPossible reputational damage

“Dual Use” Controls (cont’d)

What is covered?“Dual Use” Items – generally, U.S.-origin items not specifically designed or modified for military use (even if the item is frequently used by the military, e.g., a water bottle)

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EXAMPLE 1: U.S.-origin bicycle helmet not specifically designed/modified for a military use. [Dual use item]EXAMPLE 2: U.S.-origin bicycle helmet specially configured to be compatible with military communication hardware. [ITAR item]


General Prohibitions (exceptions may apply):Export and reexport of controlled items to listed countriesReexport and export from abroad of foreign-made items incorporating more than a de minimis amount of

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controlled U.S. content25% U.S.-origin content by value for most destinations10% U.S.-origin content by value for sanctioned countries (e.g., Iran, Syria)

Reexport and export from abroad of the foreign-produced direct product of U.S. technology and software to listed destinations


General Prohibitions (cont’d):Engaging in actions prohibited by an order denying export privileges (denial order)Export or reexport to prohibited end-uses or end-usersExport or reexport to embargoed destinationsSupport of certain proliferation activitiesExport or reexport through listed countries (in transit)Violating terms or conditions of a license, a License Exception or an order issued under the EARProceeding with transactions with knowledge that a violation has occurred or is about to occur

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Common License Exceptions:Temporary imports, exports, and re-exports (TMP)Technology and Software-Unrestricted (TSU)Baggage (BAG)

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Even when a license exception is available, the exporter still must fulfill all requirements of the applicable exception

Key Concept: “Deemed Exports”Release of technology to a foreign national is “deemed” to be an export to the country or countries of the foreign nationalForeign national:

Any person who is not a U.S. citizen or permanent resident

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A valid work or student visa does not change status“Technology” can include technical data, documentation, manufacturing know-how“Release” includes transmission of information to a foreign national anywhere, including in the United States

Arms Export Controls

Main regulator: U.S. State Department, Directorate of Defense Trade Controls (DDTC)Regulations: International Traffic in Arms Regulations (ITAR) Penalties:

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Civil fines (up to $500,000)Criminal fines (up to $1 million) or if an individual, imprisonment (up to 10 years), or both

Possibly greater fines if imposed under the Alternative Fines Act

Loss of export privilegesPossible reputational damage

Arms Export Controls (cont’d)

What is covered?Exports of all U.S.-origin defense articles (items listed on U.S. Munitions List)A “defense article” is defined as any item that has been specifically designed or modified for a

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been specifically designed or modified for a military useIncludes controls on transfers of technical data related to defense articles to non-U.S. persons, whether that data is transferred orally, visually, electronically, or through any other means

Arms Export Controls (cont’d)

With very few exceptions, licenses or other authorizations are required for exports to all destinations of defense articlesExports of defense articles are prohibited to:

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Embargoed destinations (including Belarus, China, Cote d’Ivoire, Venezuela, and about 20 more), State Department Debarred Parties, and Prohibited parties under U.S. law

Economic Sanctions and Embargoes

Main Regulator: U.S. Department of Treasury, Office of Foreign Assets Control (OFAC)Types of Programs:

May be comprehensive (e.g., Cuba, Iran, Sudan) l i ( B S i Zi b b )

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or selective (e.g., Burma, Syria, Zimbabwe)Embargoes on Trade and ServicesAsset FreezesEntry Restrictions

Sanctions and Embargoes (cont’d)

Apply to U.S. persons:U.S. citizens, wherever locatedU.S. companiesAny person in the United States, regardless of nationality

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nationalityMay also cover:

Non-U.S. persons directing or involved in prohibited conduct by U.S. personsAlso for Cuba embargo: Covers all entities owned or controlled by certain U.S. persons

Sanctions and Embargoes (cont’d)Penalties:

IEEPA sanctions programs:Civil fines (up to the greater of $250,000 or twice the value of the transaction)Criminal fines (up to $1 million) or if an individual, imprisonment (up to 20 years) or both


Trading With the Enemy Act (TWEA) sanctions programs (e.g., Treasury’s Cuban Assets Control Regulations):

Civil fines (up to $65,000)Criminal fines (up to $1 million) (if an organization) or if an individual, criminal fines (up to $100,000) or imprisonment (up to 10 years), or both


Seizure and forfeiture of goodsPossible reputational damage

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Key Concept: Specially Designated National

Specially Designated Nationals (SDNs) (e.g., terrorists, drug cartels, certain vessels)Unlawful for U.S. persons to conduct any transaction with an SDNNames change regularly and SDN List is updated

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Names change regularly and SDN List is updated regularlyMay be based in non-sanctioned countries, such as:

CanadaMexico UK United States

Key Concept: Export of ServicesMany economic sanctions programs prohibit U.S. persons from directly or indirectly exporting services to sanctioned parties, including sanctioned individuals, entities, and countries

Example: A U.S. person cannot repair the computer of an SDN b h d t ld tit t th i i

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SDN because such conduct would constitute the provision of a service to the SDN

Sanctions also prohibit a U.S. person facilitating any transaction that a U.S. party could not conduct

Example: A U.S. person cannot refer Iran business to a non-U.S. competitor because that U.S. person could not itself conduct such business as a general matter.

Key Concept: Export of Services (cont’d)

Prohibition on export of service covers U.S. persons, wherever located

Example: U.S. citizen in Kosovo cannot facilitate a prohibited transaction simply because they are outside the United States.

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Severe penalties still apply despite indirect nature of these acts

Anti-Boycott ControlsMain Regulators: Departments of Commerce and TreasuryRegulations:

Export Administration Regulations (Commerce)Internal Revenue Code (Treasury)

Prohibits (Commerce) or Penalizes (Treasury): Compliance with Arab League Boycott of Israel such as:

Refusing to transact with Israel or specific Israeli person or companyAgreeing to provide information about business relationships with or in Israel, or

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g g p p ,with blacklisted companies, including in shipping documents

Penalties:Commerce:

Civil fines (up to the greater of $250,000 or twice the value of the transaction)Criminal fines (up to $1 million) or if an individual, imprisonment (up to 20 years) or both

Possibly greater fines if imposed under the Alternative Fines Act, which (among other things) allows fines to be imposed up to twice the pecuniary gain or loss of the transaction

Denial of export privilegesTreasury: Denial of certain tax benefitsPossible reputational damage

Anti-Boycott Controls (cont’d)Evasion: any action to avoid U.S. anti-boycott laws and regulations

Very fact-specificCurrent Treasury Department boycott countries:

Kuwait, Lebanon, Libya, Qatar, Saudi Arabia, Syria, United Arab Emirates, and Republic of Yemen

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Boycott requests also may be received from Bahrain, Bangladesh, Indonesia, Iraq, Malaysia, Oman, or others

Reporting: Boycott requests generally have to be reported to Commerce and or Treasury, but reporting requirements are different

Commerce, report must be made on quarterly basisTreasury, report on annual basis

Other Relevant Laws

U.S. CustomsUnderstand how to identify an item’s proper Harmonized Tariff classification, duty level, and the need for statements regarding country of origin, etc.

Economic Espionage Act (EEA)d l i l i i d

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Federal crime to steal or misappropriate trade secrets:To benefit foreign powersTo achieve commercial or economic purposes

FBI Program: Awareness of National Security Issues and Response (ANSIR)

Caution: An ANSIR outreach visit may lead to an investigation of the visited party

Why Comply

Compliance protects national securityCompliance is good for business

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Compliance empowers the workforceCompliance is the law

Why Comply (cont’d)

Compliance is the law.The Departments of Commerce, Justice, State, and Treasury punish violators of U.S. trade controls laws:

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civil finescriminal fines and imprisonmentloss of export privilegesprohibition of export of goods to a violatorSeizure and forfeiture of goodspossible reputational damage

Why Comply (cont’d)

Compliance is the law (cont’d).No person may proceed with a transaction knowing or having reason to know that a violation has occurred, is about to occur, or is intended to occur in connection with the

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transactionOrganization must ensure that its business activities comply with U.S. trade controls lawsOrganization also must take steps to ensure transaction partners comply

Recent Enforcement ActivityCases involving exporters (all information from public record):

DHL – $9.44 million Civil FineCabela’s Inc. - $680,000 Civil FineIngersoll Machine Tools - $126,000 Civil FineMTS Systems Corp. - $400,000 Criminal Fine; $400,000 Civil FineDr. John Reece Roth – 4 years imprisonmentIhsan Elashi – $330,000 Civil Fine; 50-year denial of export privileges; 6

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Ihsan Elashi $330,000 Civil Fine; 50 year denial of export privileges; 6 years imprisonmentABN AMRO (non-U.S. company) - $500 million forfeitureLloyds TSB (non-U.S. company) - $350 million forfeitureLPPAI, LTD. - $50,000 Criminal FineFiber Materials, Inc. and its top two officers - $250,000 FineParker Hannifin Corp. - $185,000 Civil FineBJ Services Company USA - $142,450 Civil FineMetric Equip. Sales - $50,000 Criminal Fine; $150,000 Civil FineValtex Interntl. Corp. – at least $250,000 Criminal Fine; $77,000 Civil Fine

Common Issues Leading to Violations

How can exporters get in trouble?Failing to screen transaction partners against lists of restricted partiesNot responding appropriately to compliance concernsFailing to screen non-U.S. nationals from controlled technology or technical dataImproperly classifying item as controlled by Commerce or State

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Not completing all license requirements, e.g., failing to get an end-user certificate when requiredProviding a prohibited origin statement or other information prohibited by U.S. Anti-boycott lawsSubmitting a false statement on an AES entry, or as part of an SED

Improperly identifying a license exception as basis for exportIncluding wrong quantity or value information on the SED

Maintaining improper or incomplete records

Compliance Process Best Practices

Establish and maintain a culture of complianceDemonstrate commitment: commitment to adequate, appropriate resources to protect against and detect trade controls violationsEnsure all relevant Personnel understand their

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Ensure all relevant Personnel understand their obligations under U.S. trade controls laws and your organization’s compliance policies dealing with such controls (if applicable)

Compliance Process Best Practices (cont’d)

Know what trade controls rules apply to the service and article being exportedKnow when a technology export is likely to occurObtain the required license or other approval and/or understand the license exemption

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Screen parties, locations, and end-uses for all transactions where necessary and as appropriateBe vigilant – look for “Red Flags” and report them when they ariseKeep required records

Restricted Parties Screening

There may be liability for causing or assisting an export to a restricted or prohibited partyScreening is a relatively easy, cost-efficient compliance step, and an important part of any

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compliance step, and an important part of any compliance policy that meets best practices standards

Restricted Parties Screening (cont’d)

5 Principal U.S. Government Lists of Restricted Parties:

Specially Designated Nationals List: http:www.treas.gov/offices/enforcement/ofac/sdnDenied Persons List: http://www.bis.doc.gov/dpl/default.shtm

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Unverified List: http://www.bis.doc.gov/enforcement/unverifiedlist/unverified_parties.htmlEntity List: http://www.bis.doc.gov/entities/default.htm

Debarred Persons List: http://www.pmddtc.state.gov/compliance/debar.html

Spot Red Flags

All relevant personnel should be expected to spot compliance “red flags” that have to be reasonably and appropriately addressed. Which means what? Consider designating compliance personnel and encourage your

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personnel to get to know them.Other resources:

“Know your customer” guidance: www.bis.doc.gov/Enforcement/knowcust.htm BIS red flags guidance: www.bis.doc.gov/Enforcement/redflags.htm

Spot Red Flags (cont’d)

What are “Red Flags”Consignee is reluctant to offer information about the end-use of the itemDelivery dates are vague, or destination is unusualFreight forwarding firm is U.S.-origin product’s final d ti ti

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destinationShipping route is abnormal for the U.S.-origin product and destinationConsignee is evasive as to whether the purchased U.S.-origin product is for domestic use, for export, or for re-exportConsignee is a military entity

Export Recordkeeping

Records must be maintained and available for U.S. Government review for 5 years.“Export control documents” include:

Export license

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pShipper’s Export Declaration (SED)Automated Export System (AES) entry.

Maintain those records and documents “made or obtained” by the exporter.

Compliance ResourcesCompliance Policy & Procedures:

Summary of key trade controls compliance issuesProcesses to address and respond to issues that arise, including reporting mechanism for compliance concernsAudit function to review compliance policy and

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procedures as appropriatePrevent against and detect risks & potential violations

Compliance Training:Individualized training and periodic refresher courses

Compliance Resources (cont’d)

Online ResourcesBIS website: www.bis.doc.gov (includes information about Anti-boycott controls and exports to restricted parties and destinations)DDTC website: www.pmddtc.state.govOFAC website: www.ustreas.gov/ofac

Internal Resources

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Organization supervisorsLegal Department

Outside ResourcesOutside counsel

Thank YouThank YouFulbright & Jaworski L.L.P.

Stephen M. McNabbTel: (202) 662-4528

Email: [email protected]

Gozie C. OnyemaTel: (202) 662-0498

Email: [email protected]

What You Need To Know About The FCPA

bFebruary 23, 2011

When You Think Compliance,

Think Fulbright.TM

Agenda

• Recent Enforcement Trends• Foreign Corrupt Practices Act (“FCPA”) • Other Potentially Relevant Laws • Key Compliance Issues

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y p• Risk Mitigation Strategies

Recent Enforcement Trends

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Recent Enforcement Trends

• Top enforcement priority and increased resources

• Increase in industry-wide investigations and proactive enforcement techniques

• Large penalties• Individual liability• Increased international enforcement and

cooperation

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Recent Enforcement Trends (cont.)

• Top enforcement priority and increased resources– Significant growth in both the number of

FCPA reported enforcement actions and the size of the penalties imposedsize of the penalties imposed

– Dedicated Department of Justice (“DOJ”) and Securities and Exchange Commission (“SEC”) FCPA teams

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• Increased use of industry-wide investigations and growth in the number of industries under scrutiny

• Industries recently under review include– Oil & gas– Medical devices & pharmaceuticals– CosmeticsCosmetics– Law enforcement & military products– Financial services

• Sovereign wealth funds– Insurance– Construction & engineering– Tobacco– Computer & information technology

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Recent Enforcement Trends (cont.)• More proactive enforcement techniques

– SEC and DOJ are sending letters to industry participants following voluntary reports by suppliers or competitors (e.g., Panalpina-related cases)

• Traditional law enforcement techniques – Wiretaps and “stings”

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– The “Gun Sting” (January 2010)• 22 defendants in the military and law enforcement products industry

were arrested and indicted for FCPA violations• Search warrants were executed in 14 locations across the United

States and in London• Defendants allegedly participated in a scheme to pay a 22%

commission to a sales agent who represented the minister of defense for a country in Africa in exchange for part of a $15 million contract to provide products to the country’s presidential guard

• First large-scale use of traditional undercover law enforcement techniques in an FCPA investigation


• Both the DOJ and SEC are seeking increasingly large penalties– Nearly $2 billion in fines and penalties were levied

against companies for FCPA-related offenses in 2010

– Also in 2010, several individuals were sentenced to prison terms ranging from 6 months to over 7 years

• Both agencies are also clearly focused on prosecuting individuals

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• DOJ and SEC are increasingly utilizing expansive theories of liability, including aiding and abetting, agency, and conspiracy theories

• Anti-corruption enforcement is heating up all over the world– International enforcement agencies have increased the

number of anti-corruption related investigations and prosecutions

– Cooperation is increasingly routine– New anti-corruption legislation is being enacted– U.S. style approaches to investigations and resolutions

are being adopted by other nations’ enforcers 45

FCPA

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FCPA

• Enacted in 1977 following a SEC investigation that uncovered hundreds of U.S. companies made improper payments to foreign officials

• Two components– Anti-bribery provisions that prohibit payments or offers or

authorizations of payments of “anything of value” to foreign ff l b b b dofficials to obtain business or business advantages

– Accounting and internal controls provisions that require U.S. public companies to maintain good records and internal controls

• Civil and criminal liability for companies and individuals

• Enforced by SEC and DOJ

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FCPA (cont.)

• Anti-bribery provisions apply to– All U.S. companies, citizens, or residents, whether or

not they act within or outside of the United States– Any non-U.S. company listed on the U.S. stock

exchanges– Any non-U.S. company or individual who executes any

part of a bribery scheme within the United States, and– All officers, directors, employees, or agents of the

above• U.S. parent companies may also be liable for the acts

of non-U.S. subsidiaries where the parent authorized, directed, or controlled the activity in question

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FCPA (cont.)

• Accounting provisions apply to– “Issuers,” which are companies with

securities registered in the United States or that file periodic reports with the SEC

F i b idi i f i t b d– Foreign subsidiaries of issuers are not bound directly by these provisions, but a parent company must generally in good faith use its influence to cause its subsidiary to devise and maintain efficient accounting controls

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FCPA (cont.)

• Facilitating payments exception– Made to secure “routine governmental action”– Must be small, reasonable, and well-

documented– Most local laws prohibit them

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– Examples include• Obtaining copies of or speeding the processing of

permits, licenses, official documents• Expediting the processing of governmental papers (e.g.,

visas)• Providing police protection• Delivering mail• Providing utilities (phones, power, water)

FCPA (cont.)• Two limited affirmative defenses

– Payment is lawful under foreign country’s written laws– Payment is a “reasonable and bona fide expenditure”

to demonstrate or promote a product or execute a contract• Must be “directly related” to demonstration/promotion of

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goods/services or execution/performance of a contract and may include – Travel and meal expenses related to tours of a company’s

facilities and– Sponsorship of attendance at company training programs

• Reasonableness is highly fact-dependent and turns on considerations such as the amount of the expenditure, its lavishness, the timing, etc.

FCPA (cont.)

• Criminal Penalties—Anti-Bribery Provisions– Up to a $2 million fine per violation for companies– Up to 5 years in jail and up to $250,000 fine for

individuals• Criminal Penalties—Accounting and Internal

Controls Provisions

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– Up to a $25 million fine per violation for companies– Up to 20 years in jail and up to a $5 million fine for

individuals• Fines for both companies and individuals may be

even higher than the ones included in the FCPA statute (up to 2x the benefit sought or received) under a federal alternative fine provision

FCPA (cont.)

• Civil Penalties– FCPA statute permits both the DOJ and SEC to impose a

basic $10,000 per violation civil fine upon individuals and companies

– The SEC may also impose additional civil penalties

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ranging between $5,000 to $100,000 upon individuals and $50,000 to $500,000 upon companies

• These additional penalties, and the SEC basic FCPA civil fine, are adjusted for inflation

• Alternatively, the SEC may impose a civil penalty equal to the gross pecuniary gain to an individual or company

FCPA (cont.)

• FCPA violations may result in– Debarment from government contracts– Corporate monitor– De-listing from stock exchanges– Reputation damages

• Employee litigation• Private cause of action brought by civil plaintiffs

for damages under RICO, or under other federal and state securities and fraud laws

• Lawsuits brought by customers and/or competitors for unfair competition or fraud

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Other Potentially Relevant Laws

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Other Potentially Relevant Laws

• Financial Reporting Laws– Accuracy of financial statements and conformity with GAAP

• Section 304 of Sarbanes Oxley allows the SEC to “claw back” compensation from CEOs and CFOs of companies that restate their financials even if the individuals are not alleged to have engaged in any wrongdoing

D dd F k A t• Dodd-Frank Act– Signed on July 21, 2010 – Imposes substantial new requirements affecting executive

compensation that apply to almost all publicly traded companies, along with additional requirements for financial institutions

– Section 1504 “Disclosure of Payments by Resource Extraction Issuers”

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Other Potentially Relevant Laws (cont.)

• Dodd-Frank Act—Whistleblower Provisions– Permit awards of between 10 and 30% of monetary

sanctions the SEC imposes upon a company > $1 million to those who assist the SEC with information about a securities violation (including FCPA violations)

• This information must be independently gained (i.e., not from an internal investigation, audit, annual report, court filing, or news article)

– Create a private right of action for whistleblowers who are discharged, threatened, suspended, harassed, or discriminated against for reporting securities violations

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• Travel Act (18 U.S.C. § 1952)– Prohibits domestic or international travel or

use of “facilities” to commit, attempt to commit, or help commit certain crimes (either state or federal)

• “Facilities” is defined to include the mails, the wires, emails, advertising, telephones, etc.

– Penalties (non-violent violations)• Up to a $500,000 per violation fine (or 2x the

benefit sought/received) for companies• Up to a $250,000 per violation fine (or 2x the

benefit sought/received) and 5 years’ imprisonment for individuals

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• Wire & Mail Fraud (18 U.S.C. §§ 1341-43)– Prohibits use of the U.S. wires/mails in connection

with any scheme to deprive anyone of a thing of value (i.e., submitting inflated bids/false invoices)

• May also apply to non-U.S. companies and individuals

P lti ( i l t i l ti )– Penalties (non-violent violations)• Up to a $500,000 per violation fine (or 2x the benefit

sought/received) for companies• Up to a $250,000 per violation fine (or 2x the benefit

sought/received) and 20 years’ imprisonment for individuals– Wire fraud affecting a financial institution has additional

penalties ($1,000,000 or 30 years’ imprisonment)

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• Bribery of U.S. government officials– Federal law prohibits directly or indirectly providing

anything of value to U.S. government officials in exchange for an “official act” (this includes procurement fraud)

• Government officials include Members of Congress

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• Government officials include Members of Congress, Commissioners, and all federal government employees and agents

• Government officials may also include certain state government employees, and employees of Native American tribal and city/county governments

• Recipients of bribes are also covered


• Many states have anti-bribery laws– Many of these laws apply to bribery of both public

officials and private persons• E.g., Texas Penal Code § 36.02 (public officials) and § 32.43

(commercial bribery)

Like FCPA and other anti corruption laws these laws

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– Like FCPA and other anti-corruption laws, these laws often prohibit certain core behaviors (i.e., payments to influence improper actions)

– Generally apply to persons and businesses living or operating within a state, though acts occurring within a state may also be the basis of jurisdiction


• Bribery is not legal anywhere• Several countries, such as the United

Kingdom, China, Russia, and the Ukraine, are in the process of updating their anti-

i l

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corruption laws– Many of these updated laws prohibit both

public official and commercial bribery– Corporate offenses are often included

• Knowing the applicable laws is essential to compliance

Key Compliance Issues

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Key Compliance Issues

• Business Courtesies• Facilitating Payments • Third Parties (Vendors, Agents,

Consultants & Lobbyists)

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• Joint Ventures • Mergers & Acquisitions• Red Flags

Business Courtesies

• Effective anti-corruption compliance policies should require that business courtesies (i.e., gifts, entertainment, and travel-related expenses) be pre-approved by an appropriate supervisor or the company’s

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pp p p p ycompliance officer

• Permissible expenditures should not be lavish or frequent and must be compliant with local laws

• Transparency is the best way to avoid any appearance of corrupt intent

Facilitating Payments

• Effective anti-corruption policies generally prohibit or place strict limits on facilitating payments, including– Pre-approval procedures

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– Procedures to ensure such payments are accurately recorded on the company’s books and records

Third Parties• The FCPA and other anti-corruption laws prohibit direct and indirect

corrupt payments• Enforcement activity routinely involves third parties

– Often the relevant question is whether you “know” the payment will go to a government official

• “Knowing” as defined by the FCPA includes conscious disregard and deliberate ignorance of issues that a reasonable person would review before proceeding with a particular transaction

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• Many other criminal statutes incorporate a similar “willful blindness” theory• Many types of third parties can put you at risk

– Subsidiaries or other affiliates– Agents, sponsors, representatives, distributors, consultants (e.g. anyone

acting on your behalf)– Freight forwarders and customs brokers – Relatives and friends of government officials– Companies owned by government officials– Joint venture and merger partners

Third Parties (cont.)

• Including robust anti-corruption provisions in all contract agreements with third parties is one way of mitigating potential anti-corruption risks presented by those relationships

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relationships– It is not always easy to predict when a third

party might interact with foreign officials– Many jurisdictions have laws prohibiting both

commercial and public official bribery

Joint Ventures

• Joint venture partners, and the joint venture itself, can raise substantial compliance issues– For example, several recent FCPA resolutions all

arose out of a single Nigerian joint venture• That joint venture was with a Nigerian government agency

and some joint venture employees were employees of that agency

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agency• The DOJ/SEC alleged that bribes were paid through the joint

venture and have imposed nearly $1.3 billion in penalties against companies involved in the joint venture

• As with third parties, keys to joint venture compliance involve careful due diligence and the incorporation of robust anti-corruption provisions into the joint venture agreement

Mergers & Acquisitions

• Anti-corruption liability has often arisen in connection with mergers and acquisitions– A U.S. company may acquire FCPA liability

even if the target was not subject to the FCPA h it d i t

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when it made an improper payment • Avoiding liability in the merger and

acquisition context requires robust due diligence

Red Flags

• “Red flags” are indications of potential compliance issues that must be addressed before proceeding with a transaction—they are not necessarily violations

• Very fact-specific– Reputation for unethical or suspicious business practices or

evidence of past violations of local law or policy – Transaction partner is unwilling to enter into written agreement or

demands fees in cash– Transaction partner suggests multiple agents for same scope of

work– Transaction partner is politically active or has a close relationship

with a foreign official– Transaction partner provides incomplete or inaccurate

information– Transaction partner requests payment be made to third party or in

a different country71

Risk Mitigation Strategies

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Risk Mitigation Strategies

• Robust Compliance Programs• Internal Investigations • Voluntary Reporting

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Robust Compliance Programs

• May result in the limitation of criminal, regulatory, and civil liability

• Key features include– Periodic compliance assessments and changes based on

location and industry exposurelocation and industry exposure– In-person training (and ongoing training) to help

employees identify and resolve “red flags”– Open line of communication to GC or CCO and

management buy-in– Compliance hotline– Due diligence of transaction partners– In other words, not a “paper” program74

Robust Compliance Programs (cont.)

• The U.S. Sentencing Guidelines for Organizations outline seven aspects of effective compliance– Compliance standards and procedures– Organizational leadership and a culture of

compliancebl ff l d h b d– Reasonable efforts to exclude prohibited persons

– Training and communication of standards and procedures

– Monitoring, auditing, and evaluating program effectiveness

– Performance incentives and disciplinary actions– Response to criminal conduct and remedial action

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Independent Internal Investigations• Allow company to determine the scope of potential problem

and proactively demonstrate compliance/remediation • Initiated as soon as the company has reason to believe a

problem may exist and typically includes– Retention of experienced outside counsel, and if needed,

outside forensic accountants, who report directly to Board of Directors or Audit Committee

– Cessation of the potentially problematic conduct and evidence preservation

– Formulation of a properly scoped investigative plan– Consideration of voluntary disclosure to DOJ/SEC and

applicable securities laws disclosure obligations– Consideration of modifications to compliance program– Documentation of all investigative steps and privilege

preservation76

Voluntary Reporting

• Advantages– Allows company to present its own internal findings at a time

it chooses– Permits company to present evidence of misconduct and

evidence of its overall compliance commitment at the same time

– May translate, in turn, to a reduction in penalties and the DOJ/SEC’ i f i il h h i i l l iDOJ/SEC’s pursuit of civil rather than criminal penalties

• Disadvantages– May still lead to DOJ/SEC enforcement actions– Other countries may decide to investigate the corruption

allegations– Companies that make filings with the SEC may have to

disclose the internal investigation in their filings– May result in the waiver of privilege in follow-on civil

litigation77

Questions?

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www.fulbright.com • 866-FULBRIGHT [866-385-2744]

Marsha Gerber 713 651 5296 or [email protected] Walker 202 662 0434 or [email protected]

BIOGRAPHY: Marsha Z. Gerber

Marsha Z. Gerber [email protected] D: +1 713 651 5296

Houston Fulbright Tower 1301 McKinney Suite 5100 Houston, TX 77010-3095 T: +1 713 651 5151 F: +1 713 651 5246

Experience • Over 20 years of practice

experience • Government investigations and

enforcement actions • Records management programs • Electronic Discovery • Compliance programs • Complex Litigation • Complex class actions • Arbitration

Industries • Energy and Utilities • Securities • Health Care Products and

Services • Alternative Dispute Resolution • Banking and Finance • Construction and Building

Materials

Marsha Z. Gerber Partner

"Commitment to the highest standards of legal practice and putting client needs at the forefront"

AREAS OF CONCENTRATION

• Government Investigations and Enforcement

• FCPA and International Anti-Corruption

• White Collar Crime • Energy Litigation

• Securities Litigation • Arbitration and ADR • E-discovery and Information

Management Group

EXPERIENCE With over twenty years of experience, Marsha Gerber, partner in the Houston office of Fulbright & Jaworski L.L.P. and a member of Fulbright's Government Investigations and Enforcement and White Collar Crime practice areas, regularly represents clients faced with responding to government investigations and enforcement actions, including those of the Department of Justice, the Securities and Exchange Commission, the Office of Foreign Asset Control and Congress. Her representation in these matters includes:

• utilizing established relationships in interacting effectively with government officials;

• conducting internal investigations on behalf of the client;

• providing counsel on initial document preservation and retention and subsequent collection for internal investigations, government requests and formal subpoena responses;

• analysis of and advice regarding key client documents throughout the investigation and response period; and

• providing advice and counsel in reaching resolution of investigations.

Marsha also regularly provides anti-corruption due diligence review for merger and acquisition transactions; develops and implements regulatory compliance programs to help clients meet the U.S. Sentencing Guidelines protocol; and develops and presents anti-corruption training to employees of clients involved in international business operations. She has years of experience working with the Foreign Corrupt Practices Act (FCPA) and other statutes and regulations affecting international commerce. She also counsels clients in establishing effective records management protocols.

Other areas of practice during Marsha's career have included eCommerce/systems


design matters, counseling on employment issues and handling employment disputes, banking (domestic and international), patent and trademark infringement, medical practice issues and disputes and construction industry matters.

As a trained mediator and arbitrator, Marsha serves on the panel of arbitrators of the American Arbitration Association. She has served as an arbitrator for complex securities, general commercial, employment and health care matters.

REPRESENTATIVE EXPERIENCE • Representation of public and private companies from energy and other sectors

in responding to government investigation and enforcement actions

• Development and implementation of anti-corruption policies and standard operating procedures

• Anti-corruption and related regulatory due diligence review for mergers and acquisitions

• Conducting internal investigations for public and private companies on reports of FCPA violations or concerns

• Arbitration of complex securities, healthcare and employment cases

PROFESSIONAL ACTIVITIES AND MEMBERSHIPS • South Texas College of Law, Corporate Compliance Center, FCPA/Export

Control Advisory Board

• American Bar Association

• Criminal Justice Section, White Collar Crime Committee

• Litigation Section, Energy Litigation Committee

• Litigation Section, Pretrial and Discovery Committee

• State Bar of Texas

• Houston Bar Association

• 2005 United States Council for International Business Arbitration, Committee Task Force on "Amiable Composition and ex aequo et bono"

• American Arbitration Association panel to the National Research Exchange Equity Research Organization

• Women's Energy Network, two-term Board of Directors Member

• Association of Women Attorneys

• Phi Delta Phi Scholastic Legal Fraternity

• Houston Business Forum, Past President (1996 - 1997)

PROFESSIONAL HONORS • "Best FCPA Lawyer Outside of D.C.," Main Justice (2011)


PUBLICATIONS • Co-author with Richard Craig Smith, Kelly Garrett Thorman and Andres

Chaves, "Congress Examines FCPA Enforcement," Fulbright & Jaworski L.L.P. Briefing, December 3, 2010

• Co-author with Lista M. Cannon, Gerard G. Pecht and Guy Singer, "Beyond the Basics: Consequences of New UK Bribery Act and Intersecting FCPA Regulations," Fulbright & Jaworski L.L.P. - Dodd-Frank Task Force, September 16, 2010

• "What In-House Counsel Need to Know About the FCPA Today," 9th Annual In-House Counsel Course, Texas Bar CLE, July 22-23, 2010

• Co-author with Richard C. Smith, Kimberly S. Walker and Michael C. Pacella, "Dodd-Frank Act to Have Major Implications on Foreign Corrupt Practices," Fulbright & Jaworski L.L.P. Briefing, July 21, 2010

• Author, "Current Trends in FCPA Enforcement and Other Timely Knowledge Necessary for FCPA Compliance in Today's Environment," Inside The Minds: Foreign Corrupt Practices Act Compliance Issues, 2010 Thomson Reuters/Aspatore

• Co-author with Guy Singer, Cristina Lunders and Kimberly S. Walker, "DOJ and SEC Settlements With Daimler Highlight Increased Fine and Imposition of Monitor for FCPA Violators," Fulbright & Jaworski L.L.P. Briefing, April 2, 2010

• Co-author with Elaine L. Lawson and Cristina K. Lunders, "To Report Or Not To Report: Considerations in Determining Whether to Voluntarily Disclose FCPA Violations," The Review of Securities & Commodities Regulation, February 17, 2010

• Co-author with Don J. DeGabrielle, "Factors to Consider When Hiring Forensic Accountants," Texas Lawyer, October 5, 2009

• Co-author with Richard C. Smith, Maria N. Lerner and Kimberly S. Walker, "DOJ Wins Guilty Verdict in FCPA Case Against L.A. Film Executives," Fulbright & Jaworski L.L.P. Briefing, September 15, 2009

• Co-author with Richard C. Smith, Kimberly S. Walker and Cristina K. Lunders, "Individual Enforcement and International Cooperation Highlighted in FCPA Guilty Plea," Fulbright & Jaworski L.L.P. Briefing, September 8, 2009

• Co-author with Richard C. Smith and Carlos R. Rainer, "SEC Invokes Control Person Liability Provisions of the Exchange Act to Heighten Potential Exposure for FCPA Violations," Fulbright & Jaworski L.L.P. Briefing, August 2009

• Co-author with Cristina Lunders, “The Foreign Corrupt Practices Act: What Controllers Need to Know,” presented at AICPA Controllers Workshop West,


July 21-22, 2009

• Co-author with Cristina Lunders, “FCPA: Developments in the Last Year and What Can Be Expected in the Near Future,” presented at Greater Houston Business Ethics Roundtable, July 16, 2009

• Co-author with Cristina Lunders, “Disclosing Wrongdoings: Deciding When and How to File a Voluntary Disclosure to DOJ and the SEC,” presented at American Conference Institute FCPA Boot Camp 2009, July 15, 2009

• Co-author with Richard C. Smith and William B. Jacobson, "High Profile Conviction Likely To Further Bolster FCPA Enforcement," Fulbright & Jaworski L.L.P. Alert, July 2009

• “Foreign Corruption and Bribery – Current Developments and Planning Considerations for Multinational Enterprises,” Presented at The Center for American and International Law 2009 Symposium on Global Markets, June 17, 2009

• Co-author with William B. Jacobson, J. Scott Maberry, Richard C. Smith and Lara D. Pringle, "Fiat To Pay $17.8 million In Oil For Food Settlement," Fulbright & Jaworski L.L.P. Briefing, January 2009

• Co-author with Richard C. Smith, William B. Jacobson, Kimberly S. Walker and Fatema Merchant, "Record-Setting Penalty Imposed for FCPA Violations," Fulbright & Jaworski L.L.P. Briefing, December 2008

• Co-author with Cristina K. Lunders and Esther Nelson, "Dealing With Suspected and Alleged FCPA Violations: An Overview On Compliance Hotlines and Other Selected Topics," Updated and presented at American Conference Institute FCPA Boot Camp 2008, May 28-29, 2008

• Co-author with Cristina K. Lunders and Esther Nelson, "Dealing With Suspected and Alleged FCPA Violations: An Overview On Compliance Hotlines and Other Selected Topics," Presented at American Conference Institute FCPA Boot Camp 2008, January 24-25, 2008

• Co-author with Kenneth Breen, Peggy Heeg, William Pakalka, and Michael Shelby, "The Future of Corporate 'Cooperation' Under the Thompson Memorandum - Will There Be a Shift Toward Greater Predictability?" Fulbright & Jaworski L.L.P. White Collar Crime Update, October 2005

• "English Court Assesses Impact on Arbitration of European Human Rights Convention," Fulbright & Jaworski L.L.P. International Arbitration Report, Winter 2002

• "The Balance of Control Between Principal and Participant Banks - A Word of Caution," Houston Bar Journal, October 1997

SPEECHES • Presenter, “Responding Effectively To Global FCPA Enforcement Inquiries,”

Compliance Week Webinar, February 10, 2010


• Panelist, "Overcoming FCPA Compliance Challenges in Indonesia," American Conference Institute FCPA Boot Camp, January 24, 2011

• Presenter, "The Foreign Corrupt Practices Act – How to Engage Sales and Marketing Personnel to Avoid Non-Compliance," presented at Global Compliance: Answers to Important Questions FCPA and Export Professionals Should Be Asking, South Texas College of Law, Corporate Compliance Center, October 21, 2010

• Panelist with Nancy T. Bowen and Eva Fromm O'Brien, "Women at the Top – Knowledge Is Power (Regulatory Investigations)," presented by Fulbright & Jaworski L.L.P., Houston, Texas, October 19, 2010; Panel Moderator Regulatory Investigations: How to Avoid; What to Expect

• Presenter with Lista Cannon, Guy Singer and Gerry Pecht, "Beyond the Basics: Consequences of New UK Bribery Act and Intersecting FCPA Regulations," presented by Fulbright & Jaworski L.L.P., Houston-Dallas, September 16-17, 2010

• Co-chair, "Taking the Lead: Doing Business in Latin America," presented by Fulbright & Jaworski L.L.P. and PriceWaterhouseCoopers, September 1, 2010; Moderator FCPA panel discussion

• Panelist with Billy Jacobson, Coralina Rivera McWhorter, Brian Moffatt and Manny Alas, "Panel Discussion: Risks and Trends of Corruption in Latin America," Taking the Lead: Doing Business in Latin America, presented by Fulbright & Jaworski L.L.P. and PriceWaterhouseCoopers, September 1, 2010

• Panelist, "M&A in 2010 – Key Issues in Cross Border Deals," Fulbright & Jaworski L.L.P. Web Seminar, June 17, 2010

• Panelist, "Doing Business in China: Dispute Resolution, Enforcement and Investment Protection Issues," Fulbright & Jaworski L.L.P. Seminar, Houston, Texas, June 10, 2010

• Panelist, “Facilitating Payments Under the FCPA – Are They Still Viable?” 61st Annual Oil and Gas Law Conference, The Center for American and International Law, February 19, 2010

• Presenter, "FCPA Hot Topics," presented at Global Compliance Seminar, South Texas College of Law, October 15, 2009

• Presenter, “The Foreign Corrupt Practices Act: What Controllers Need to Know,” presented at AICPA Controllers Workshop West, July 21-22, 2009

• Presenter, “FCPA: Developments in the Last Year and What Can Be Expected in the Near Future,” presented at Greater Houston Business Ethics Roundtable, July 16, 2009

• Presenter, “Disclosing Wrongdoings: Deciding When and How to File a Voluntary Disclosure to DOJ and the SEC,” presented at American Conference Institute FCPA Boot Camp 2009, July 15, 2009


• Presenter, “Whistleblower and Reporting Mechanisms: How to Facilitate the Reporting of Suspected Violations, Handle Complaints and Apply Discipline,” presented at American Conference Institute FCPA Boot Camp 2009, July 14, 2009

• Co-presenter with J. Daniel Chapman, Baker Hughes, Suzanne B. Kean, Exterran, and Todd Ranta, PricewaterhouseCoopers, “Foreign Corruption and Bribery – Current Developments and Planning Considerations for Multinational Enterprises,” presented at The Center for American and International Law 2009 Symposium on Global Markets, June 17, 2009

• Panelist, "The New Frontier in FCPA Enforcement," presented by Fulbright & Jaworski L.L.P., December 3, 2008

• Panelist, "FCPA Risk and Compliance," Doing Business in Latin America Conference, presented by Fulbright & Jaworski L.L.P. and Pricewaterhouse Coopers, November 13, 2008

• Co-presenter with Richard C. Smith, "Government Investigations and the Attorney-Client Privilege," presented to a large publicly traded energy industry company, October 28, 2008

• Co-chair, "Intersection of FCPA, Sanctions and Export Controls," South Texas College of Law Corporate Compliance Center Seminar, October 16, 2008

• Panelist, "Effective FCPA, Sanctions and Export Controls Due Diligence in Mergers and Acquisitions," South Texas College of Law Corporate Compliance Center Seminar, "Intersection of FCPA, Sanctions and Export Controls," October 16, 2008

• Co-panelist, "FCPA: The Importance of Compliance," Fulbright & Jaworski L.L.P. Executive Women's Leadership Forum, September 13, 2008

• "Dealing With Suspected and Alleged Violations: Reporting Programs and Disciplinary Procedures," updated and presented to American Conference Institute FCPA Boot Camp 2008, May 28-29, 2008

• "The Foreign Corrupt Practices Act: Hot Issues from a Turbulent Year of Investigations," Continuing Education seminar presented to a publicly traded energy industry company, March 2008

• "Creative Responses to Corruption: How to Handle FCPA Compliance Issues in Countries That Have a Reputation for Corruption," Panelist, American Conference Institute FCPA Boot Camp 2008, January 24-25, 2008

• "Dealing With Suspected and Alleged Violations: Reporting Programs and Disciplinary Procedures," presented to American Conference Institute FCPA Boot Camp 2008, January 24-25, 2008

• "The Foreign Corrupt Practices Act: Hot Issues from a Turbulent Year of Investigations," Continuing Education seminar presented to a publicly traded


aviation industry company, December 2007

• "How the Global Market Defines 'Bribery': A Roundtable on Translating the FCPA Today," CLE roundtable presentation, Fulbright & Jaworski breakfast seminar, December 2007

• "The Foreign Corrupt Practices Act: An Overview and Hypotheticals," compliance training presented to management of private energy industry company, October 2007

• Co-presenter, "Attorney Client Privilege - The Limitations and Breadth of Privileged Communications With Counsel/Impact of Sarbanes Oxley," CLE seminar, October 2007

• "Compliance With The Foreign Corrupt Practices Act," Continuing Education seminars presented to several publicly traded energy companies, Spring - Fall, 2007

• "Complying with U.S. Antitrust Laws - an Overview," Continuing Education seminar presented to publicly traded energy company, Summer - Fall, 2007

• "An Ethics Overview - Antitrust, Foreign Corrupt Practices Act, Intellectual Property," presented to World Oil Technical Conference, March 2007

• "Congressional Investigations: Are You Ready?" Moderator and Presenter, Fulbright & Jaworski L.L.P. Continuing Education Series, January 2007

• Paralegal Professional Development Program Electronic Discovery, January 2007

• "Cooperation: What Is It and Where Does It Get the Company?" Panel Member and Speaker, Fulbright & Jaworski L.L.P. Breakfast Seminar, Internal Investigations: Why the Thompson Memo May Force Corporate Cooperation in Ways You Never Imagined, Houston, Texas, August 2005

• "How to Win at Trial with a Financial Expert," Planning Committee Member and Presenter, South Texas College of Law seminar, November 2000

• "How to Present, Admit, and Attack the Financial Expert's Report," Planning Committee Member and Presenter, South Texas College of Law seminar, November 1999

• "Compliance Programs For Physicians," presented to physician groups, 1998

• "How to Present Financial Information at Trial," South Texas College of Law seminar, November 1998

EDUCATIONAL BACKGROUND 1984 - J.D., summa cum laude, South Texas College of Law 1972 - B.A., high honors, Journalism, The University of Texas at Austin

Marsha attended law school when her two daughters were 2 and 5 years of age. She attended classes at night in order to be with her young daughters during the


day (and studied between play groups and carpools). Marsha graduated second in her class from South Texas College of Law where she was a member of the Order of the Lytae and the Dean's Honor List. She was also a member of the Phi Delta Phi International Legal Fraternity and received AmJur awards in Property; Remedies; Wills, Trusts & Estates; Commercial Law II; and Marital Property. While at South Texas, she served as the Assistant Casenote Editor and Assistant Comments Editor of the South Texas Law Journal, received the Annual Howard Nations Award for best article in the field of federal law, "Aftermath of Roe v. Wade," 1983, and received the Corpus Juris Secundum Award for Significant Legal Scholarship in 1983. Marsha is admitted to practice before the United States District Court for the Southern District of Texas and all Texas state courts.

CIVIC INVOLVEMENT • United Way of the Texas Gulf Coast, Alexis de Toqueville Society

• Greater Houston Women's Foundation

• Girls, Inc.

• Guild of Baylor College of Medicine

Austin Beijing Dallas Denver Dubai Hong Kong Houston London Los Angeles Minneapolis Munich New York Riyadh San Antonio St Louis Washington, D.C.

BIOGRAPHY: Stephen M. McNabb

Stephen M. McNabb [email protected] D: +1 202 662 4528

Washington, D.C. Market Square 801 Pennsylvania Avenue, N.W. Washington, DC 20004-2623 T: +1 202 662 0200 F: +1 202 662 4643

Experience • Grand jury and congressional

investigations • International trade • Civil litigation before trial and

appellate courts

Stephen M. McNabb Partner

AREAS OF CONCENTRATION • Litigation • Appellate • White Collar Crime • Government Investigations and Enforcement • International Trade

EXPERIENCE Steve McNabb is a partner in the Washington, D.C., office of Fulbright & Jaworski L.L.P. Since joining Fulbright & Jaworski in 1982, he has been engaged in a litigation and counseling practice focused on appellate, federal criminal and enforcement, federal civil, and international trade matters.

Steve is a member of the firm's Appellate Practice Group and has argued cases in several United States courts of appeal. He also has represented corporations and their officers, directors, and employees in white collar criminal and related federal enforcement matters. He has represented clients during grand jury and congressional investigations, at trial, and before appellate courts in matters involving alleged financial and securities fraud, defense procurement fraud, antitrust violations, export and foreign assets control violations, food and drug violations, general fraud, foreign corrupt practices, and foreign military sales violations. His practice has involved counseling clients on complying with U.S. criminal laws, the organizational sentencing guidelines, and corporate prevention and detection programs.

Steve also has extensive civil litigation experience before trial and appellate courts in such diverse fields as antitrust, employment, labor relations, torts, civil rights, and complex commercial matters. He has handled antitrust-related litigation involving the Internet, the local exchange, interexchange, and wireless telecommunications markets, and the computer-based testing market. He also has been involved in counseling clients on compliance with U.S. trade restrictions and representing clients in enforcement matters related to trade restrictions.

PROFESSIONAL ACTIVITIES AND MEMBERSHIPS • American Bar Association

• Litigation Section

• Center for Professional Responsibility

• District of Columbia Bar

BIOGRAPHY: Stephen M. McNabb

PUBLICATIONS While in law school, Steve authored the perjury and false statements sections in Second Annual Survey of White Collar Crime.

EDUCATIONAL BACKGROUND 1982 - J.D., cum laude, Georgetown University Law Center 1978 - A.B., cum laude, Harvard University

While in law school, Steve served as an editor of the American Criminal Law Review. He was admitted to the District of Columbia Bar in 1982. He is admitted to practice before the United States District Court for the District of Columbia, the United States Court of Appeals for the District of Columbia Circuit, the United States Court of Appeals for the Federal Circuit, and the United States Courts of Appeals for the Fourth Circuit, the Fifth Circuit, the Eighth Circuit, the Eleventh Circuit, and the Supreme Court of the United States.

INTERESTS When Steve is away from the office, he enjoys a round of golf and spending time with his family.

CIVIC INVOLVEMENT • Southwestern Youth Association, Coach

• Braddock Downs Homeowners Association, past President

• Harvard College 1978 Class Committee and Volunteer Interviewer


BIOGRAPHY: Gozie C. Onyema

Gozie C. Onyema [email protected] D: +1 202 662 0498


Gozie C. Onyema Associate

AREAS OF CONCENTRATION • Energy • Natural Gas Pipeline Regulation • International • International Trade

EXPERIENCE Fulbright & Jaworski associate Gozie Onyema practices in the firm's Washington, D.C. office.

Energy Practice:

Much of Gozie's practice focuses on natural gas matters before the Federal Energy Regulatory Commission (FERC). Gozie has counseled natural gas pipeline companies and local distribution companies on various regulatory matters before the FERC, including:

• Certificate proceedings, rates, and other tariff-related matters

• Jurisdictional determination

• Pipeline service agreements

• Interconnection agreements

International Trade Practice:

In addition to his energy practice, Gozie routinely handles matters relating to international trade. Gozie's international trade experience includes:

• Handling matters particular to U.S. export controls

• U.S. economic sanctions and economic embargoes

• U.S. Foreign Corrupt Practices Act (FCPA)

• U.S. anti-terrorism controls

• U.S. anti-boycott controls

• Anti-money laundering and other banking controls

• U.S. Customs and other import controls

PROFESSIONAL ACTIVITIES AND MEMBERSHIPS • District of Columbia Bar Association

• State Bar of Illinois

BIOGRAPHY: Gozie C. Onyema

• Energy Bar Association

PUBLICATIONS • Co-Author with Richard C. Smith, William B. Jacobson and Kelly E. Garrett,

"On the Horizon: UK Prosecution—An Emerging Collateral Consequence of a U.S. FCPA Investigation," 23rd Annual National Institute on White Collar Crime, March 4-6, 2009

• "The U.S. Bureau of Industry and Security Publishes Comments on Proposed License Exception for Intra-Company Transfers," Fulbright International Trade Controls Regulatory Update, December 24, 2008

• Co-Author with J. Scott Maberry, "Keeping Cool in the Face of an ICE Summons for Records," ABA Homeland Security and National Defense Newsletter, Vol. 1, No. 3, Spring 2008

EDUCATIONAL BACKGROUND 2005 - J.D., University of Wisconsin Law School 2000 - B.A., Ecology and Evolutionary Biology, Princeton University

While attending law school, Gozie served as an Articles Editor and the Diversity Chair of the University of Wisconsin Law Review. He also served on the University of Wisconsin Moot Court Board, competing in Pace University's Environmental Law Moot Court Competition (2004) and winning "Outstanding Coach of the Year" honors (2005). Gozie was also an active member of the University of Wisconsin Black Law Students Association (UW BLSA). He served as UW BLSA's Community Service Chair (2003 - 2004) and President (2004 - 2005). During Gozie's term as President of UW BLSA, the organization earned "Midwest Region BLSA Chapter of the Year" honors. In addition, Gozie served on the University of Wisconsin Law School admissions committee (2003 - 2005) and was awarded the Orrico Award for outstanding commitment to community service (2004).

Gozie is admitted to practice in the District of Columbia and Illinois.

INTERESTS Gozie's interests include playing the piano, mentoring kids, and cutting hair.

CIVIC INVOLVEMENT • Macfarland Middle School Mentorship Program

• The GEANCO Foundation (a Nigerian hospital building project), Board of Directors


BIOGRAPHY: Kimberly Sullivan Walker

Kimberly Sullivan Walker [email protected] D: +1 202 662 0434


Industries • Energy and Utilities • Insurance • Government • Computer Hardware, Software

and Services • Manufacturing

Kimberly Sullivan Walker Sr. Associate

AREAS OF CONCENTRATION • Antitrust & Competition • Appellate • Government Investigations and Enforcement • Litigation • White Collar Crime

EXPERIENCE Kim Walker joined the Washington, D.C. office of Fulbright & Jaworski L.L.P. in November 2005. As a senior associate, Kim’s practice focuses on antitrust matters, civil litigation, appellate litigation, Foreign Corrupt Practices Act (FCPA) investigations, and white-collar criminal defense. She has represented clients in federal and state court proceedings involving a variety of issues, including application of the federal sentencing guidelines, discovery disputes, standing, constitutional law, and trade regulation. Through these representations, she has developed substantial experience in motions practice, appellate briefing, and electronic discovery.

Kim also served as a Special Assistant Attorney General with the District of Columbia Office of the Attorney General (OAG). While at the OAG, she took and defended depositions, negotiated settlements, and successfully argued motions in both the United States District Court for the District of Columbia and the District of Columbia Superior Court.

In addition to her civil litigation practice, Kim has represented multiple clients in antitrust, criminal, merger, and other investigations brought by the Department of Justice, the Securities and Exchange Commission, the Federal Trade Commission, and the Housing and Urban Development Agency. In this context, she has prepared comprehensive investigation plans, conducted witness interviews, prepared reports summarizing investigative findings, and worked with economists and other experts to craft clients’ responses and affirmative defense arguments as well as managed all aspects of the voluminous electronic discovery required for such investigations.

Kim’s practice also includes advising clients on a variety of compliance issues and assisting clients with the development of compliance policies and procedures and due diligence reviews of agents and prospective joint venture partners. She has participated in federal plea-bargaining and settlement negotiations and worked on several amicus briefs to the United States Supreme Court.

Before joining Fulbright, Kim clerked for the Honorable James L. Dennis of the United States Court of Appeals for the Fifth Circuit and the Honorable James J. Brady of the United States District Court for the Middle District of Louisiana.


While attending graduate and law school, Kim worked as a Contracting Specialist for the Air Force Office of Scientific Research where she awarded and administered grants and contracts for basic research. During her tenure with the Air Force, she was detailed to the Executive Office of the President where she served as the Business Manager for the White House's Y2k compliance program and graduated from the U.S. Air Force's Air University Squadron Officer School program. Kim is admitted to practice in Virginia and the District of Columbia.

PROFESSIONAL ACTIVITIES AND MEMBERSHIPS • Virginia State Bar Association

• District of Columbia Bar

• Edward Bennett Williams American Inn of Court

• Supreme Court Historical Society

PUBLICATIONS • Co-Author with Richard C. Smith, Thaddeus R. McBride and Mark L. Jensen,

"First DOJ Opinion Procedure Release of 2010 Permits Payment to Foreign Official," Fulbright & Jaworski L.L.P. Briefing, May 2010

• Co-Author with Guy D. Singer, Marsha Z. Gerber and Cristina K. Lunders, "DOJ and SEC Settlements With Daimler Highlight Increased Fine and Imposition of Monitor for FCPA Violators," Fulbright & Jaworski L.L.P. Alert, April 2010

• Co-Author with Richard C. Smith, John E. Kelly and Paul Simon, "Guilty Plea Highlights Increased FCPA Enforcement in 2010," Fulbright & Jaworski L.L.P. Briefing, March 2010

• Co-Author with Richard C. Smith, Lista M. Cannon, Antony J. Corsi and Ian M. Pegram, "International Regulatory Cooperation: Court of Appeal Supports FSA’s Assistance of SEC in Request for Documents," Fulbright & Jaworski L.L.P. Briefing, March 2010

• Co-Author with Richard C. Smith, John E. Kelly and Gloria Salcedo Padula, "FCPA Enforcement Update: DOJ Targets the Health Care Industry," Fulbright & Jaworski L.L.P. Briefing, February 2010

• Co-Author with Richard C. Smith, John E. Kelly and Cristina K. Lunders, "DOJ Launches the Largest Single Investigation and Prosecution Action Against Individuals in the History of the FCPA," Fulbright & Jaworski L.L.P. Alert, January 2010

• Co-Author with Richard C. Smith, John E. Kelly and Cristina K. Lunders, "Increased International Anti-Corruption Enforcement Highlighted in Fine Imposed by German Authorities," Fulbright & Jaworski L.L.P. Briefing, December 2009

• Co-Author with Richard C. Smith, Alexandre H. Rene, Lista M. Cannon, Gloria Salcedo-Padula and Ian M. Pegram, "Recent International Anti-


Corruption Enforcement Efforts & Compliance Guidance," Fulbright & Jaworski L.L.P. Briefing, December 2009

• Co-Author with Richard C. Smith and Fatema Merchant, ""Former Manager of Texas Business Arrested for His Role in Conspiring to Bribe Mexican Officials," Fulbright & Jaworski L.L.P. Briefing, November 2009

• Co-Author with Richard C. Smith and John E. Kelly, "Former U.S. Representative William Jefferson Sentenced to 13 Years’ Imprisonment," Fulbright & Jaworski L.L.P. Briefing, November 2009

• Co-Author with Richard C. Smith, Marsha Z. Gerber and Maria N. Lerner, "DOJ Wins Guilty Verdict in FCPA Case Against L.A. Film Executives," Fulbright & Jaworski L.L.P. Alert, September 2009

• Co-Author with Richard C. Smith, Marsha Z. Gerber and Cristina K. Lunders, "Individual Enforcement and International Cooperation Highlighted in FCPA Guilty Plea," Fulbright & Jaworski L.L.P. Briefing, September 2009

• Co-Author with Richard C. Smith, Glenn M. Jones and Fatema K. Merchant, "Proposed Legislation May Expand the Occupational Safety and Health Act's Applicability and Increase Penalties," Fulbright & Jaworski L.L.P. Briefing, June 2009

• Co-Author with William B. Jacobson and Richard C. Smith, "Novo Nordisk A/S Agrees to Pay Over $18 Million to Resolve Oil for Food Allegations," Fulbright & Jaworski L.L.P. Briefing, May 2009

• Co-Author with William B. Jacobson, Richard C. Smith and Anne Elkins Murray, "FCPA Enforcement Trends: More International Cooperation and Forfeiture Actions?," Fulbright & Jaworski L.L.P. Briefing, January 2009

• Co-Author with William B. Jacobson, Richard C. Smith, Marsha Z. Gerber and Fatema K. Merchant, "Record-Setting Penalty Imposed for FCPA Violations," Fulbright & Jaworski L.L.P. Briefing, December 2008

• Co-Author with William B. Jacobson and Richard C. Smith, "FCPA Enforcement Trends: Increased Individual Prosecutions, Cooperation Between Different DOJ Enforcement Divisions, and Penalties," Fulbright & Jaworski L.L.P. Briefing, December 2008

• Co-Author with William B. Jacobson and Maria N. Lerner, "Recent Ruling Makes it Difficult for Defendants to Raise Local FCPA Cases," Fulbright & Jaworski L.L.P. Briefing, October 2008

• Co-Author with David M. Foster, "Supreme Court Overturns Century-Old Ban on Minimum Resale Price Agreements," Fulbright & Jaworski L.L.P. Client Alert , June 27, 2007

EDUCATIONAL BACKGROUND 2001 - J.D., summa cum laude, George Mason University School of Law 1998 - M.B.A., Troy State University


1994 - B.S., Management, Florida State University

While in law school, Kim was a Notes Editor for the George Mason Law Review.

INTERESTS Kim enjoys cooking, college football, hiking, and distance running. She also has a current Water Survival/HUET/METS certification.
