Singapore has long been a regional banking and trading hub, but in recent years, as multinational companies in other sectors have moved their regional headquarters to Singapore, it is also emerging as a regional data hub. This shift has implications for companies involved in US compliance and investigation activities in the Asia-Pacific region. US authorities require and expect that legal and compliance personnel will use data to support their work in these areas.

In this advisory, we discuss Singapore’s data protection policies, including data localization. We will also focus on the impact of the recent amendments to Singapore’s main data protection legislation, the Personal Data Protection Act (PDPA), which took effect on February 1, 2021, including the new “legitimate interests” exception, for companies conducting data driven compliance reviews and investigations involving Singapore-based data.

Click here to read the full client advisory.

The Due Process Protections Act amended the federal rules of criminal procedure to require district courts to issue, at the outset of every criminal case, an order confirming the prosecutor’s disclosure obligations under Brady v. Maryland, and the consequences for violating the order. A critical role for defense counsel at the outset of a criminal case will now be to shape the terms of this mandatory Brady order. Key open issues that should be the subject of defense counsel advocacy as courts begin to implement this important new law include: what information must be disclosed, when it must be disclosed, the scope of the prosecution team that is bound to make disclosure, and how compliance or noncompliance will be determined and sanctioned. This article gives a roadmap for defense counsel to obtain a broad and meaningful Brady order on each of these issues.

Click here to read the full client advisory.

In late December, the United States Court of Appeals for the Second Circuit affirmed the conviction of Chi Ping Patrick Ho on seven counts alleging multiple FCPA and money laundering (and related conspiracy) violations.[1] The decision is notable for its construction of various FCPA provisions, and further demonstrates the expansive jurisdictional reach of anti-money laundering laws to dollar-denominated transfers.

Ho, a citizen of Hong Kong, served as an officer and director of the Hong Kong-based non-governmental organization China Energy Fund Committee (CEFC-NGO), which was funded by Shanghai-based energy conglomerate China CEFC Energy Company Limited (CEFC).[2] Ho also served as an officer and director of a CEFC-affiliated US non-profit (US NGO), funded by CEFC NGO.[3]

Ho’s conviction, for which he was sentenced to 36 months imprisonment and a US$400,000 fine,[4] stemmed from two alleged bribery schemes involving (1) an attempted US$2 million cash delivery to the President of Chad (which was purportedly rejected by the President) and (2) a US$500,000 wire transfer to a charity associated with the foreign minister of Uganda.[5] Notably, the US dollar-denominated wire originated from a bank in Hong Kong, which was transmitted through its operating unit in the United States as a correspondent to another bank in New York, which in turn was acting as a correspondent for a beneficiary bank in Uganda for final credit to an ultimate beneficiary NGO. Both acts were allegedly made for the benefit of CEFC’s commercial interests in Africa.[6]

Continue Reading United States v. Ho

Earlier this year, we wrote about a decision from the Fourth Circuit[1] that seemed to cast doubt on the legality of taint teams. Since then, two recent district court cases affirmed the legality of the practice, but emphasized limitations on government review of privileged material. These cases, together, suggest that the days of courts rubber-stamping whatever privilege review protocol the government proposes may be over, and provide a preview for how courts will handle privilege review in the future. In both, courts set limits on filter team review, ruling that sending non-privileged material straight to the prosecution without prior review by the privilege-holder fails to adequately protect the privilege-holder’s interests.

Continue Reading DOJ ‘Taint Team’ Practice Affirmed but Protocols Questioned

On November 16, the Health and Human Services (HHS) Office of Inspector General (OIG) issued a Special Fraud Alert highlighting fraud and abuse risks associated with payments to physicians related to speaker programs sponsored by pharmaceutical and medical device companies.

Despite the pharmaceutical and device companies’ longstanding use of speaker programs to educate heath care professionals about their products, OIG appears to take a different view of company-sponsored speaker programs, expressing doubt as to whether those programs have any educational value at all. Given prior guidance regarding the anti-kickback statute (AKS) risks posed by speaker programs, the health care industry is poised to discover the answer to two key questions: What does the new Special Fraud Alert really add to the mix? And, will the new Special Fraud Alert signal a new wave in AKS enforcement priorities? While only time will definitively answer both questions, this client advisory takes a closer look at the new Special Fraud Alert with a view towards managing compliance.

For more information, click here to read the full client advisory.

This month has so far seen two significant actions taken by the Department of Justice (DOJ) Antitrust Division (Antitrust Division) on wage-fixing and no-poach litigation and enforcement matters, which has shed additional light in an enforcement area that has needed it. Over the last few weeks, the Antitrust Division both served up its first indictment in a criminal wage-fixing case, and filed an amicus brief in a “no-poach” case to clarify its view of how the law should be interpreted relating to franchise agreements. Continue Reading A Busy Month for DOJ on No-Poach/Wage-Fixing Enforcement Front

One of the most difficult questions faced by any management team is whether, absent a legal, regulatory or statutory duty to do so, its company should commence an internal investigation. The answer is simpler when a law enforcement agency is knocking at the company’s door, when the company receives a request for information to which it is compelled to respond or when it is the subject of a whistleblower or adverse press report. However, it is perhaps far less simple when an investigation is being voluntarily contemplated to assess the general health of the company. What happens if an issue is identified that might otherwise have remained undetected, that leads to significant costs, demands on management time, adverse press and, perhaps worse still, regulatory sanction or criminal prosecution? Might it be better to let sleeping dogs lie?

The question as to whether to undertake a voluntary investigation is one that, for many years, has caused management teams to scratch their collective heads. Given the issues that have affected many companies as a result of the worldwide COVID-19 pandemic, the question is increasingly being raised. As a result of the effects of COVID-19, some companies were rushed into decisions that they might otherwise have spent more time considering, compliance processes were shortened or even overlooked, and employees were afforded more opportunity to take autonomous decisions, often within the less supervised confines of a remote environment. Is 2021 the time to revisit some of the decisions that were made over the past year and to lift up the floorboards?

In this article, we suggest some of the advantages and disadvantages of undertaking a proactive, voluntary internal investigation. We also consider some of the ways in which a company could mitigate those potential disadvantages.

Continue Reading The Benefits and Risks of Conducting an Internal Investigation: Is it Better to Let Sleeping Dogs Lie?

Increasingly frequent cross-border investigations have raised difficult questions of privilege and work product protection over the last few years. In the United States, attorney-client privilege protects confidential communications between attorneys and clients for the purpose of seeking or rendering legal advice, and the work product doctrine protects documents or materials prepared in anticipation of litigation from discovery. Not every country offers those protections. Although many other countries recognize some form of privilege or confidentiality between attorneys and clients, that privilege or confidentiality may be construed to cover a narrower subset of communications. International businesses therefore must recognize that communications deemed privileged in the United States may not be considered privileged in other countries. For example, in France in-house counsel are not considered members of a “bar” and professional secrecy typically does not protect communications between a company’s management and its in-house counsel. In Germany, privilege may apply to communications with in-house counsel in civil proceedings but not in criminal proceedings. Moreover, in those jurisdictions in which privilege is recognized, the circumstances under which privilege is waived also differ across jurisdictions. Japanese law, for example, provides no baseline attorney-client privilege although specific rules such as those issued by the Japan Fair Trade Commission may protect such communications when related to the particular subject matter. English law, on the other hand, is more similar to US attorney-client privilege but does not extend as safely to internal investigation notes. Under English law, documents generated during an internal investigation will only be privileged if the communication is with the narrowly defined “client,” the documents betray the trend of legal advice or litigation (which can include criminal proceedings) was in reasonable contemplation. Comparing France, Germany, Japan, England, and the United States exemplifies how decisions to disclose attorney-client communications to third parties may have different consequences in different jurisdictions, even if the disclosure may not effect waiver in the jurisdiction in which it is made. When these differences in privilege law are present, the question must be addressed: which privilege rule controls? The US Court of Appeals for the Second Circuit’s recent decision in Mangouras v. Squire Patton Boggs may offer new insight into that question.

For more information, click here to read the full client alert.

On Wednesday, November 18, 2020, head of the DOJ Antitrust Division, Makan Delrahim, signed a Memorandum of Understanding (MOU) between the DOJ and the Korean Prosecution Service (KPS) that supports increased cooperation between the two agencies in criminal antitrust enforcement and policy development. Delrahim was joined virtually by Prosecutor General Yoon from KPS for the signing ceremony.

In his signing ceremony remarks, Delrahim stated: “The Memorandum of Understanding is a shared recognition of the close ties between our agencies and our commitment to assisting one another in criminal cartel matters… [It] serves to memorialize and formalize what we have been implementing over the past few years.” He went on to highlight DOJ and KPS’s recent collaborations: shared enforcement training, cooperation and coordination on investigations, and exchange of information regarding policy initiatives.

Continue Reading DOJ Antitrust Division, Korean Prosecution Service Sign MOU

A little over a year after its creation the Procurement Collusion Strike Force has announced its first public indictments. The Strike Force was created to focus on rooting out collusion and related schemes aimed at impeding competition in public contracting. As DOJ made clear when the Strike Force was created, DOJ views price-fixing in government contracting as a particularly harmful since it directly harms U.S. taxpayers. The Strike Force includes prosecutors from both the DOJ Antitrust Division and United States Attorney’s offices, the FBI, and Inspectors General from the Department of Defense, the U.S. Postal Service, and the General Services Administration.

A federal grand jury in North Carolina indicted Contech Engineered Solutions LLC and Brent Brewbaker, a former executive at the company for their roles in a nearly decade-long conspiracy to rig bids for aluminum structure projects funded by the United States and the North Carolina Department of Transportation (NCDOT). Contech and Brewbaker were also charged with mail and wire fraud arising from acts in furtherance of the conspiracy. The case is part of a larger ongoing investigation into the aluminum structures industry.

Continue Reading Procurement Collusion Strike Force Issues Its First Indictment