Tunney Long CountOn this day 81 years ago, one of the most famous events in boxing history occurred, the famous “Long Count” in the second Tunney-Dempsey title match. Boxer Gene Tunney had won the crown from slugger Jack Dempsey the year before. In their rematch, most prognosticators had thought Dempsey would win back his title but Tunney kept Dempsey at bay with his combination of foot-work, jabs and circling around Dempsey during the fight. However, in the 7th round Dempsey scored with a series of uppercuts that floored Tunney.

Unfortunately for Dempsey, he did not go to a neutral corner and glowered over Tunney for several seconds, while the fight referee had to usher Dempsey away, Tunney regained his composure, got up and not only continued the fight but won again. Movie reels of the fight showed that Tunney had upwards of 15 seconds to get to his feet, far above the standard 10 count. If Dempsey had simply played by the rules, he may well have won the fight.

One way to help you figure out what the current rules are for Foreign Corrupt Practices Act (FCPA) compliance going forward is to attend Momentum’s 3rd Oil and Gas Anti-Corruption & Compliance Exchange which will be held in Houston, TX next Tuesday and Wednesday, September 28 & 29, at the Houston Marriott Energy Corridor Hotel. The event will be chaired by two of the most knowledgeable people I know in compliance, Julie Symon, Vice President (VP) and Chief Compliance Officer (CCO) at KBR and Natalia Shehadeh, VP and CCO at Weatherford. In addition, the conference features such well known compliance luminaries as Jay Martin from Baker Hughes, Jan Farley from Dresser-Rand, Sergio Leal from Layne Christensen, John Sardar from Noble Energy, Mary Moreland, from Quanta Services and Andrew Baird, from GE Oil and Gas.

There are some very interesting and useful topics to be discussed on the program. They include a review of effective anti-corruption compliance training for a worldwide workforce; using your risk assessment to “unearth weak spots in your global anti-corruption compliance program” going forward; a dialogue with Department of Justice (DOJ) and Securities and Exchange Commission (SEC) lawyers on recent enforcement actions. This session alone may well be worth the price of admission in light of the recent announcements around the Yates Memo and the hiring of DOJ compliance counsel. As you would expect from an internationally focused conference, there will substantive sessions on challenges in compliance in certain regions such as South America. Finally, with the Yates Memo emphasis on internal investigations around senior managers, the discussion on internal investigations should be a must attend session this year.

There are also several interesting panels, one of which I am involved with at the conference. It will discuss some of the challenges around joint ventures (JV) and mergers and acquisitions (M&A) work in compliance. Panel Chair, Laura Flippin, a partner at DLA Piper, said in an interview with one of the conference organizers, Ashley Csaki, “I think JVs and M&As work are something that companies tend to focus mostly, in some instances at least on reputational issues, financial security and sometimes ABAC or FCPA review as a secondary thought. And more and more I think companies are realizing that that’s just not sufficient. When you buy an asset, when you take on another company’s personnel or when you intertwine yours with them, whether you’re doing co-marketing or joint development agreements or one is taking responsibility for operation of your industry in a market, you’re necessarily intertwined with the party that you’re working with. And I think it’s not wise to underestimate the degree to which a company can be on the hook.”

Another interesting panel will be led by Phil Bezanson, a partner at Bracewell & Giuliani LLP, around collaboration between legal, audit and compliance. In another interview with Csaki, he said,“I think the things that you’ll hear — that these different perspectives bring — is how to approach the tension between identifying risks, educating business, the business lines within the company to identify risks and to communicate those risks, and to really be a partner with business within the company and not be seen as sort of a hindrance. And then being able to translate what the business of the company is, and how the business works into materials or statements or collections of information that can be presented to outsiders from the government who are not as familiar with how the business may work, how the company may work. And demonstrate to the government that a compliance program can be strong, and also business friendly at the same time.”

In another interest pairing, there is former DOJ prosecutor James Koukios interviewing convicted FCPA felon Richard Bistrong. Each will provide their own viewpoints on issues of FCPA enforcement. Koukios will also lead a question and answer session involving Bistrong, how Bistrong rationalized bribery on the front lines of international business as well as the process of flipping Bistrong into a cooperating witness in the FCPA Gun Sting case.

There will also be a discussion of specific steps to take when you do discover a violation; including how to structure a voluntary disclosure to minimize downstream exposure, addressing disclosure challenges when multiple parties are involved in the transaction being reported and strategies for successfully implementing remedial measures. For two sessions, on responding to whistleblower and gifts, meals and entertainment, attendees will be divided into smaller working groups, led by a panel of experts who will guide you in a discussion of the designated topic. Each small group breakout session will be followed by a takeaway session during which the session leaders from each group will be asked to report back to the larger audience regarding the top level takeaways.

If there is one thing that you can be assured of, after attending this 3rd Annual Momentum Oil and Gas Anti-Corruption & Compliance Exchange, you will understand the rules. Hopefully by doing so, you will not lose or fail to regain your title as Jack Dempsey did some 81 years ago on this day.

For more information on the conference and registration details, you can click here.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015