ANTI-CORRUPTION SURVEY

Transcription

1 Strict enforcement of the Foreign Corrupt Practices Act from the US and the enactment of the UK Bribery Act, as well as anti-corruption initiatives launched by other countries, mean practitioners in the field are in high demand, but who are the most visible in Latin American matters? Marieke Breijer goes in search of the names a company can t do without in an emergency ANTI-CORRUPTION SURVEY

2 ANTI-CORRUPTION SURVEY LATINLAWYER nacted in 1977, the Foreign Corrupt Practices Act, the FCPA, has led to enforcement actions by the Securities and Exchange Commission (SEC) and the Department of Justice (DoJ) around the globe, and Latin America is no exception. Current investigations linked to the region include probes of Walmart s potential misconduct in Mexico, and alleged wrongdoing by Embraer, a Brazilian-based aerospace company the first ever FCPA action against a major Latin America-based multinational. While the companies links to the US in these cases are clear, history has shown that even the most tenuous connection is sufficient for the SEC and the DoJ to investigate corruption: these enforcers have no trouble in making companies feel and fear the long arm of the law. While the relatively new UK Bribery Act which only came into force in 2011 is yet to result in the landmark corruption decisions that its US predecessor has brought about, the act s provisions indicate that when the UK s Serious Fraud Office does launch enforcement actions, the approach taken could be even broader in the definition of corrupt activity and in extraterritorial reach than is currently the case under the FCPA. For firms in the US and the UK, this makes anti-corruption a lucrative business. Reporting on UK-based top international law firms financial results in July, the Financial Times noted that fee income from global investigations, which includes anti-corruption investigations, was on the up in an otherwise lacklustre financial year. Besides investigations whether mandated by enforcement agencies or by clients themselves other subpractices within the anti-corruption field include providing compliance due diligence for M&A deals, joint venture formations, and other new business partnerships, or anti-corruption litigation in civil or criminal matters. Ever increasingly, law firms are called upon to help in preventive compliance work, where they devise and implement global anti-corruption programmes and train employees or third-party providers to act in line with local and international rules, all to help their clients avoid falling foul of the law. As the most significant and far-reaching legislation in this area is found in US and UK statutes, law firms from these countries are the major players in the worldwide anti-corruption space. In theory, once US-qualified lawyers know their way around the FCPA, they can advise companies operating all around the world. Given the multijurisdictional nature of anti-corruption work, it is not uncommon to see a single case take a lawyer from Brazil and Angola to the Philippines and Ecuador and back again. In reality, however, law firms can add significant value for their clients by fielding lawyers with specialist knowledge of the situation on the ground. Law firms always stress how important it is to know a client s business in the case of global anti-corruption work, lawyers knowledge of business environments, languages and local contacts and customs in the countries they work in can make all the difference when helping clients navigate complex and potentially very costly corruption issues. A large group of international firms enjoy a high standing for their lawyers cultural awareness and extensive work in the region. Meanwhile, there is another set of firms that stand out particularly for their expertise in providing complex crossborder anti-corruption advice. Identifying those that successfully combine the two, however, is a difficult exercise. Because of the particularly sensitive nature of this practice area firms work hard to keep their clients matters out of the limelight, and are considered all the more successful when they manage to do so it is not always easy even for anticorruption practitioners to know who is the most active on such matters. The aim of this survey is to identify the leading names for anti-corruption work relating to Latin America, pinpointing those firms and practitioners that combine their anti-corruption know-how with Latin American expertise. While we do not purport to present an exhaustive list of those who have and continue to provide anti-corruption legal advice in Latin America, we aim to offer a thorough look at the top law firms and lawyers active in the Latin American anti-corruption space. 6 First published in LATINLAWYER Volume 12 Issue 6

3 LATINLAWYER ANTI-CORRUPTION SURVEY Allen & Overy LLP Jeffrey Lehtman and Bruno Soares Allen & Overy is among the firms known best for its transactional capabilities in Latin America, so it should come as little surprise that within the anti-corruption field, a large share of the firm s work in the region involves transactional due diligence. The real draw for clients needing Latin American anti-corruption advice is US-qualified and Washington-based partner Jeffrey Lehtman, who, together with seven partners based in London, Washington, New York and São Paulo, is an integral part of Allen & Overy s Latin American-related anti-corruption efforts. Lehtman, a fluent Spanish speaker, is a recent addition to the firm. With prior experience as a US DoJ attorney coordinating international cooperation for criminal matters between the US and the countries of the Southern Cone as well as having served as Citibank s senior regional counsel overseeing cross-border regulation in Latin America, he has a deep understanding of the region and of the needs of companies operating in it. He is, without question, one of a very short list of true Latin American anti-corruption specialists; and he almost exclusively focuses on Latin America work, including investigations, compliance programme development and training, and transactional due diligence. Peers recommend him for his thorough understanding of the anti-corruption compliance issues businesses face in Latin America and for his deep relationships in the Latin American business community. Through Allen & Overy s presence in São Paulo and the language abilities of its team there, the firm can field both Spanish and Portuguese-speaking lawyers to advise clients on anticorruption issues. The São Paulo-based, dual-qualified partner and native Portuguese-speaker Bruno Soares leads the firm s efforts in Brazil. While predominantly a transactional lawyer, he also advises on deaelated anti-corruption matters, and provides an essential link between his clients in Brazil and Allen & Overy s wider anticorruption team, as well as between the FCPA statute and Brazil s recently enacted anti-corruption law. The practice is bolstered by London-based partners adding UK Bribery Act expertise, while others bring further significant DoJ and SEC experience to the table. Covington & Burling LLP Covington & Burling LLP s anti-corruption practice, established in 1977, distinguishes itself by blending together partners with strong ties to, and experience in, Latin America and a particularly deep bench of anti-corruption practitioners. With several partners having high-level experience at US and UK enforcement agencies under their belt, the firm can offer advice on both the FCPA and UK Bribery Act to its clients in the region. Leading on the Latin American front is partner Tammy Albarrán. Fluent in Spanish, she is responsible for the continued development of the firm s Latin American anti-corruption efforts from the San Francisco office, and has particular experience in the region related to investigations prompted by whistle-blowing. Senior Latin America adviser Arturo Valenzuela, who previously held high-ranking positions under President Clinton and President Tammy Albarrán, Arturo Valenzuela, Lanny Breuer and James Garland Obama and advised on foreign policy initiatives in the Americas, broadens the knowledge base of a team that also includes at least ten other partners that handle anti-corruption work in the region. The firm s strengths in corruption investigations in particular are enhanced by a number of lawyers with considerable experience at the DoJ. This year s return of Lanny Breuer after a four-year stint as assistant attorney general of the DoJ s criminal division adds unique insights into US enforcement. Breuer was in charge when the DoJ and the SEC jointly issued a long-awaited FCPA enforcement guide. Others adding investigation and enforcement know-how include partner James Garland, who spearheads the firm s Latin American anti-corruption efforts with Albarrán and formerly served as deputy chief of staff and counsellor to Attorney General Eric Holder also formerly at Covington. 7

4 ANTI-CORRUPTION SURVEY LATINLAWYER Debevoise & Plimpton LLP As befits an international firm like Debevoise & Plimpton LLP, its anti-corruption practice is predominantly cross-border and encompasses teams advising on both FCPA and UK Bribery Act matters. The firm is a significant player in the Latin American anticorruption arena, and was counsel to electronics company Siemens in its then record-breaking US$800 million criminal and civil FCPA settlement with the DoJ and SEC a case that included FCPA violations in Argentina and Venezuela. Debevoise s global practice offers alongside investigations risk assessment, compliance programme development and training, pre- and post-transaction anti-bribery due diligence in M&A deals, joint ventures or new business relationships. For Latin America work specifically, a few names stand out. Litigation partner Andrew Levine cut his teeth on corruption investigations as deputy counsel to the independent inquiry committee into the United Nations Oil-for-Food programme led by Paul Volcker, and was in charge of investigating US$1.5 billion of illicit payments made to the Iraqi Andrew Levine, Bruce Yannet, Paul Berger and Sean Hecker regime. He now focuses on white-collar criminal defence, internal investigations and compliance advice, and his credentials include substantial work in Latin America, particularly in Mexico. Levine is one of four partners that often collaborate on Latin American matters. The group includes Bruce Yannet, the firm s deputy managing partner and chair of the white-collar crime practice, and the lead partner in the Siemens investigation. Litigation partner Paul Berger is a former associate director of the SEC s division of enforcement and brings eight years of SEC experience to the team. While Yannet and Berger both bring government enforcer experience, Sean Hecker, also a litigation partner, adds further white-collar criminal defence and internal investigations expertise. Known for his defence mentality, he has tried numerous cases at state and federal court level, and is closely involved in investigations. Next to Debevoise s practical involvement in the anticorruption space, the firm expressly works to increase awareness and publishes a monthly anti-corruption newsletter. Gibson, Dunn & Crutcher LLP Gibson, Dunn & Crutcher LLP has a strong global anti-corruption practice in which it easily blends FCPA and UK Bribery Act work, as the latter is increasingly demanded by Latin America s new global corporate citizens. The anti-corruption lawyers work together from offices around the globe, including São Paulo. The firm receives praise from many professionals active in the Latin American anti-corruption field for its outstanding practice: at least eight partners have worked on Latin American-related matters. Washington, DC-based partner Joseph Warin, the chair of Gibson Dunn s litigation group and co-chair of the firm s white-collar defence and investigations practice, is widely recommended as a go-to FCPA lawyer. Peers mention the long-time anti-corruption practitioner as being routinely recognised... a leader in the field Joseph Warin, Lisa Alfaro and Michael Farhang and single him out for his broad range of articles on relevant anti-corruption matters. Warin is currently leading a compliance monitorship spanning four continents, including Latin America. Others at Gibson Dunn with particularly strong Latin American links include São Paulo-based Lisa Alfaro, who speaks Spanish and Portuguese, and assists clients in Brazil in the development and review of compliance programmes. Los Angeles-based partner and former federal prosecutor Michael Farhang often travels to the region and is equally capable of handling large investigations in English as he is in Spanish. Alongside investigations and risk assessments, he works in white-collar crime and civil litigation matters. 8 First published in LATINLAWYER Volume 12 Issue 6

5 LATINLAWYER ANTI-CORRUPTION SURVEY Miller & Chevalier Chartered Miller & Chevalier Chartered is one of a limited group of firms that harbours an impressive knowledge of, and an extensive trackrecord in, complex anti-corruption matters in Latin America. This Washington, DC-based firm s practice revolves around helping clients navigate heavily regulated areas and dealings with the US federal government, and it offers the combination of a deep anti-corruption practice dating back 30 years and in-depth local knowledge within this field. The firm s anti-corruption practice forms part of its international group, set up in 1981 by Homer Moyer, a former US Department of Commerce general counsel and widely considered a dean of the FCPA. The practice offers the full range of anti-corruption assistance, ranging from M&A due diligence, developing and updating compliance programmes and local language compliance training, to undertaking investigations, liaising with enforcers, and litigating on behalf of clients through sending in small teams of experienced professionals wherever necessary. Within the practice, at least 18 lawyers bring Latin American expertise to the table. Special counsel Matteson Ellis stands out for his language skills and keen eye for local Latin American sensitivities and situations, leaving him well-equipped to advise his Homer Moyer, Matteson Ellis and James Tillen clients. Previously based in the Southern Cone, Ellis is fluent in Spanish and Portuguese, and leverages his knowledge of the region in his work and in his FCPAméricas Blog, where he regularly opines on anti-corruption matters affecting the region. His previous experience also includes working as a consultant to the Inter- American Development Bank to investigate complex corruption and fraud schemes related to public procurement in Latin America. Peers single Ellis out for being consistently current on emerging anti-corruption issues throughout Latin America, and for doing a very nice job at clearly weighing out where the minefields are, as he knows the practical business considerations and understands the compliance protections today s businesses require. James Tillen, who leads the firm s anti-corruption efforts in Latin America with Ellis, stood at the foundation of the firm s 2008 and 2012 Latin America corruption surveys, which further underscore Miller & Chevalier s interest in and dedication to their anti-corruption work in the region. In the 2012 survey, the firm teamed up with over a dozen firms to reach companies all over the region to assess the understanding and effectiveness of anticorruption laws in the region. O Melveny & Myers LLP Jorge DeNeve and Richard Grime O Melveny & Myers LLP s anti-corruption practice came into being some 20 years ago, and has developed into a fully-fledged practice with the know-how, manpower and language skills to become a strong force in the Latin American anti-corruption field. From a total of 15 partners within its worldwide white-collar defence and corporate investigations practice the firm s most visible lawyer in the region is senior counsel Jorge DeNeve, who returned to the firm after a stint as general counsel for a client in In his practice, where he dedicates around half of his time to anti-corruption advice, DeNeve combines his Spanish language skills and long-standing focus on civil and criminal litigation with FCPA enforcement expertise gained through four years as staff attorney with the SEC in Los Angeles. Supported by other Spanish language lawyers in the Los Angeles office and further Portuguesespeakers in the wider firm, O Melveny & Myers routinely covers due diligence work and Latin American investigations. Washington, DC-based Richard Grime, a long-standing practitioner who dedicates around 80 per cent of his practice to worldwide FCPA work, enjoys a gleaming reputation in the field. Grime s investigative skills and judgment command respect from his peers, as one source says he is certainly the type of individual we would bring in if we were conflicted in a matter, or needed counsel to handle some aspect of the investigation. 9

6 ANTI-CORRUPTION SURVEY LATINLAWYER Steptoe & Johnson LLP Steptoe & Johnson LLP stands out from the crowd for its anticorruption practice s reach and depth of experience in Latin America, where it has been active for decades, as well as for its specialised substantial advice in fraud and corruption matters in multinational development bank-funded projects throughout the western hemisphere. Partner Lucinda Low is known far and wide for her crossborder anti-corruption work in Latin America. Portuguese- and Spanish-speaking, Low has been active in the area for over two decades, and from the start had a specific interest in the region in her otherwise global practice. Now, there are few countries in the region she and seven other partners of her 16-strong team have not worked in. Currently, she not only heads the firm s FCPA practice but also spearheads Steptoe s development of its Brazilspecific anti-corruption work. She also advises companies in World Bank corruption investigations. Peers recognise her welounded practice in which she advises on the complete spectrum of FCPAmatters. Adding to Low s experience in anti-corruption matters involving multilaterals is Brigida Benitez, a fluent Spanish speaker Lucinda Low, Brigida Benitez and Pablo Bentes and Washington, DC-based partner, whose former role at the Inter- American Development Bank saw her head an office responsible for investigating all potential fraud and corruption in IADB-funded projects in the Americas. At Steptoe, she continues to perform investigations throughout Latin America. Working with Low and Benitez from Washington is Pablo Bentes, a Brazilian-qualified lawyer who is the firm s international trade and investment director. He speaks Portuguese, Spanish, French and German as well as English, and has significant experience in Latin American anticorruption work. Insider-enforcement know-how within the firm s team is added by a number of partners, including one who spent 17 years at the SEC s Division of Enforcement, as well as several former federal prosecutors and trial lawyers. While the majority of Steptoe lawyers that work in Latin America provide FCPA advice, the firm gets additional support on UK Bribery Act-related matters from two UK-qualified partners in the global anti-corruption group, one of whom formerly led the bribery and corruption department at the UK s Serious Fraud Office. Making headway The list of noted firms and practitioners active in Latin American anti-corruption work is growing. Here we list those firms whose worldwide practices are gaining traction in the region thanks to their local transactional reputation Arnold & Porter LLP Spanish-speaking trial lawyer Mara Senn is often found in the region, either in investigations or in compliance-focused work. Globally, the firm s practice spans around 60 lawyers, and includes a deep bench of practitioners with relevant enforcer experience, including a former head of the SFO fraud business group and ex-members of the DoJ, SEC, SFO and other authorities. Another noted practitioner within the firm s anticorruption practice is Washington, DC-based partner Keith Korenchuk, who is especially noted for his compliance advice. In his Latin America practice, he has worked on programme assessments, provides anti-corruption training and performs due diligence work. Editor s note: After the print edition went to press it has been brought to our attention that the partner we had identified as Arnold & Porter s leading practitioner for anti-corruption issues in Latin America, Claudius Sokenu, has left the firm. Mara Senn and Keith Korenchuk 10 First published in LATINLAWYER Volume 12 Issue 6

7 LATINLAWYER ANTI-CORRUPTION SURVEY Cleary Gottlieb Steen & Hamilton LLP Cleary Gottlieb Steen & Hamilton LLP anti-corruption specialists are predominantly based in the US, from where they combine their expertise with practitioners in the firm s elite corporate Latin American practice group, including lawyers on the ground. Spanishspeaking, DC-based partner Juan Morillo specialises in criminal defence, civil litigation and cross-border investigations, and is often involved in anti-corruption matters in the region. The wider white-collar defence, securities enforcement and internal investigations team, which includes several former federal prosecutors and former SEC general counsels, is supported on the Latin American-front by Portuguese and Spanish-speaking partner Nick Grabar one of the top corporate practitioners active in the region as well as Cleary s lawyers in Buenos Aires and São Paulo. Partner David Brodsky, who represents individuals and corporations and specialises in securities enforcement, white-collar criminal defence and internal investigations is another notable anti-corruption practitioner at the firm, which also provides UK Bribery Act advice through its lawyers in London and Abu Dhabi. Freshfields Bruckhaus Deringer LLP Freshfields Bruckhaus Deringer LLP s strengths lie in drawing on global capabilities to build the right teams for local needs. The firm has been a big name in Latin America for a long time thanks to its excellent reputation in corporate and disputes work, and Freshfields global investigations team is building on this established presence and is increasingly in demand. Standout names from the US include Benito Romano, Tim Coleman and Matt Friedrich. Romano, a Spanish-speaking litigator in New York focuses on whitecollar defence and civil and criminal investigations. Washington, DC-based partner Coleman is a former federal prosecutor and former senior counsel to the US deputy attorney general, and adds investigative and litigation experience, while Friedrich spent 13 years at the DoJ, including a stint as acting assistant attorney general of the criminal division, and also adds investigations and litigation experience. For UK Bribery Act advice, Freshfields can call on London-based partners, while local Latin American transactional due diligence is handled with the support of the firm s corporate group. Hogan Lovells LLP Hogan Lovells is known for its transactional strength, and its expanding regional presence and growing reputation in the Latin American anti-corruption space stand it in good stead. Its positioning in the region, where it has an established presence in Caracas, a new office in Rio de Janeiro and a foothold in Mexico, should give the firm an extra edge by allowing it to combine a US/UK law perspective with local knowledge. From Washington, DC, partners Peter Spivack, Ty Cobb and Douglas Paul handle mostly investigations. While Spivack and Cobb bring extensive DoJ experience with them, Paul adds the SEC-perspective through his role as branch chief at the authority s division of enforcement. Counsel J Evans Rice adds further white-collar crime litigation capabilities and often represents individuals and companies in bribery allegations. The recent hire of Oliver Armas and Luis Enrique Graham will strengthen Hogan Lovells anti-corruption capabilities in Latin America.Though they are renowned for their arbitration practices, they focus on anti-corruption matters too. Armas, a Spanish and Portuguese speaker, and Graham, a Mexico-qualified lawyer, both advise on anticorruption compliance, investigations and related litigation. Juan Morillo and Nick Grabar Benito Romano and Tim Coleman Peter Spivack and Ty Cobb Shearman & Sterling LLP Shearman & Sterling LLP of counsel Danforth Newcomb is a distinguished lawyer working with a global anti-corruption team. A well-known senior statesman in the field, Newcomb is the founder of the firm s anti-corruption practice and his experience dates back to a 1976 SEC-mandated investigation that served as a precursor to the FCPA. Shearman has a top-notch Latin American corporate practice, which comes in good use to its anti-corruption practitioners. The firm takes advantage of its local capabilities where possible, so for Latin American anti-corruption work it will bring in São Paulo managing partner Robert Ellison to provide compliance, due diligence and language support in anti-corruption matters in the region. Danforth Newcomb and Robert Ellison 11

8 ANTI-CORRUPTION SURVEY LATINLAWYER The wider global team represents individuals and companies in civil and criminal litigation, and also handles independent compliance monitorships, global investigations and compliance programmes. Washington, DC-based partner Philip Urofsky served as a DoJ prosecutor, and was the US anti-corruption and compliance specialist within the US delegation to the OECD working group on corruption. Deans of the FCPA The survey brought a couple of other practitioners names to the fore. While Latin America is not so much a core focus of their practices as it is for the lawyers we identify above, their stature and leadership within the field globally is so noteworthy that no list of anti-corruption specialists would be complete without them At WilmerHale, partner Roger Witten is continuously singled out by peers as one of the true senior statesmen within the global anti-corruption field. At the firm since 1975, he leads a 45-strong specialised FCPA team from his base in New York. Timothy Dickinson at Paul Hastings LLP s Washington, DC, office, is widely regarded as an FCPA expert, has over 30 years of experience in the field and advises on the complete range of FCPA matters in a large variety of industries. Roger Witten and Timothy Dickinson