Global Regulation, Local Solutions Emerging Themes 2020 - Page 51



FINANCIAL CRIME AND INVESTIGATIONS
EMERGING THEMES 2020
CONCLUSION
Companies conducting cross-border internal
investigations will therefore be under increasing
pressure to conduct those investigations even
more swiftly and efficiently. To do so, they must
be prepared for and overcome the challenges
presented by such cross-border investigations.
Those challenges include dealing with
multiple enforcers, data collection and review,
appropriately interviewing employees and
protecting attorney-client privilege. Below
we briefly address those challenges.
DEALING WITH MULTIPLE ENFORCERS
A cross-border investigation will likely raise the
interest of multiple enforcers. This affects the
key decisions of whether to disclose an issue
that you are investigating and, if so, to whom.
Understanding the enforcement priorities of
those jurisdictions, their past enforcement
history, and your company’s relationship to
each jurisdiction is important to making the
right choice as to whom to disclose. Further, you
should have a clear idea of which jurisdiction
you want to take the lead on any enforcement
issues and try to guide all jurisdictions to
agree with that choice. That does not mean
you can ignore other jurisdictions that may
want to be involved. It is essential to set up
clear lines of communication with those other
jurisdictions, emphasising that selecting a
primary jurisdiction is important for efficiency
and speed; and that all jurisdictions will receive
the results of the investigation. Establishing a
good relationship at the start can help mitigate
multiple penalties in the end.
DATA COLLECTION AND REVIEW
One of the first steps taken in a global
investigation is to collect relevant data and
materials. When those exist in multiple countries,
you must be aware of data protection
legislation in each country. For example, it is
fairly straightforward to collect and review data
in the US, even personal data that is stored on
a company computer. However, within the
EU, the General Data Protection Regulation
(“GDPR”) restricts what companies can collect
in terms of personal data and also restricts what
data can be exported outside of the EU. It is
critical that from the onset of the investigation,
you should set out a document collection and
review protocol that does not fall foul of data
protection statutes.
It is critical that from the onset of the
investigation, you should set out a
document collection and review protocol
that does not fall foul of data protection
statutes
witnesses are not forthcoming because of the
interviewers’ failure to employ best methods
to obtain information, the investigation will
inevitably suffer. This may in turn affect remedial
actions the company considers taking; the
company’s credibility with enforcers when
self-reporting; and the ability to obtain cooperation credit, where available.
PROTECTING ATTORNEY-CLIENT
PRIVILEGE
Protecting attorney-client privilege to the
maximum extent possible gives a company
more flexibility in its handling of a global
internal investigation. Even if a decision is
made to disclose results to enforcers on a
voluntary basis, it is important to protect core
legal advice given to the company. To do so,
the investigators must take steps from the
beginning to create a record of material over
which the privilege applies.
Key decisions include:
X
Considering local laws protecting privilege
X
Which country is liable to lead the
enforcement
X
Where company control of the investigation
will rest
INTERVIEWING EMPLOYEES
X
Who will conduct the investigation
Your investigation will include interviews of
employees in multiple jurisdictions, presenting
a number of challenges – the first being
language. Cultural sensitivities also should
not be ignored. Each interview should comply
with local labour laws. The purpose of these
interviews is to gather factual information to
determine what actually occurred and who
are the culpable individuals, and then provide
legal advice to the company. If individual
X
The role of in-house counsel and where they
are located
X
How documents are collected and reviewed
X
How witnesses will be interviewed
X
How interviews will be memorialised.
MARK SRERE
Partner,
Washington DC
50/
The challenges of a crossborder investigation are many
and difficult. To ensure that
your internal investigation is
prepared to overcome those
challenges, proper guidance
and preparation are necessary,
anticipating the multitude of
legal and regulatory issues
that arise in each of the
relevant jurisdictions. Knowing
what to expect and planning
accordingly is critical.
Decisions on each of these issues will affect
whether and to what extent attorney-client
privilege will apply. There are very different
expectations by enforcers in the US and
the UK as to whether material over which
privilege attaches should be provided,
if co-operation resulting in a deferred
prosecution agreement or declination
is sought.
LAURA PERLOV
Partner,
Denver
NAOMI MILES
Senior Associate,
London
/51

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