Sometimes an idea is so simplistically brilliant you wonder why no one actually thought of it before. That was the first thing I thought when two Houston lawyers, Keith Hennessee, OF Counsel at Givens & Johnston, and Joel Androphy, partner at Berg & Androphy, told me that they were going to put on the First Foreign Corrupt Practices Act Mock Trial Institute. The event will be held over two days in Houston, on November 16 and 17.
As the US Department of Justice (DOJ) and Securities Exchange Commission (SEC) have increased their scrutiny of transnational business activities, and are actively coordinating with their foreign counterparts, the importance of having a thorough understanding of the Foreign Corrupt Practices Act (FCPA) is critical. With the advent of the Yates Memo, Yates Binders and the DOJ’s FCPA Pilot Program, many have opined that an increasing number of these cases will be litigated through discovery and trial. The Institute will focus on the unique evidentiary and trial challenges that the parties must negotiate to successfully litigate and try a FCPA case. Working from a hypothetical fact pattern, a faculty consisting of experienced trial attorneys from private practice and the government, along with consultants, will explore the strategic, tactical and practical aspects of successfully litigating FCPA cases. To prepare for the event, the panelists will be working in teams (defense and government) in order to make the trial as realistic as possible. The fact pattern is structured so that both sides will be able to focus on strong themes to use in the trial, from voir dire, through opening statements, direct and cross examination of key witnesses, and closing arguments. They will also be working with trial consultants to evaluate how to best to present their case in the mock trial.
The capstone of this unique event will be the mock FCPA trial, from voir dire through jury deliberations, presided over by a sitting federal judge, which attendees will be able to observe live and via video. Attendees of this program will improve their knowledge and understanding of the novel challenges involved in evaluating and potentially litigating a FCPA case, including the following:
- Developing Trial Themes and a Litigation Plan
- Jury Selection
- Openings and Closings
- Direct and Cross Examination
The goal of this event is to present a seminar on the FCPA in the form of a mock criminal trial of an individual and a corporation. The corporate defendant is Technical Analysis and Software Corp (TASSC) and the individual defendant is Yuan Wang Soon. The prosecution case against the individual defendant will be presented by a former DOJ chief and the defense of the corporation and individual defendant will be led by an experienced trial lawyer who has actually successfully defended a real FCPA case and the former chief of the criminal division of the US Attorney’s office in Houston.
For all who have complained there are never any trials involving allegations around the FCPA, this mock trial is the next best thing. Androphy, one of the top white collar criminal defense lawyers in Houston, who successfully defended John O’Shea, an individual charged with criminally violating the FCPA, will lead the defense team, together with his partner Sarah Frazier (who also assisted on the O’Shea trial) and Michael Clark, from the Duane Morris law firm.
To balance out this heavy weight defense team, the prosecution will be headed up by Will Stellmach, a partner at Willkie Farr & Gallagher, who practices in the firm’s Litigation Department and is a member of the firm’s White Collar Criminal Defense Practice Group. Stellmach was previously the Acting Chief and Acting Principal Deputy Chief of the Fraud Section in the Criminal Division at Main Justice, overseeing a team of nearly 100 prosecutors investigating and prosecuting a range of complex financial crimes, including all criminal FCPA matters and national priority cases.
Presiding over this distinguished panel of counsel will be an equally distinguished judge, the Honorable Gregg Costa, Judge for the Fifth Circuit Court of Appeal. Judge Costa served as an Assistant United States Attorney in the Southern District of Texas, leading the prosecution team which tried and convicted Allan Stanford. Costa was later appointed to the bench as judge in the Southern District of Texas. He was then elevated to the Fifth Circuit.
Yet this is only one-half of the two-day event. The second day will be multiple panels discussing all aspects of the matter, from start to finish. The panels will begin with the trial lawyers discussion of key strategies, issues and themes in the trial. The next panel will focus on advising the company’s General Counsel (GC) on all issues surrounding the trial as well as ancillary issues such as SEC reporting requirements in FCPA enforcement actions.
I will be leading a panel of several distinguished current and former Chief Compliance Officers (CCOs). We will discuss not only what went wrong in the organization but how a company can move towards remediating an issue or issues during a FCPA investigation and trial. Several of the CCOs have worked in and through FCPA investigations so they will be able to bring their substantive, practical experience to the discussion.
Two of the panels I am excited to hear will be the discussion by corporate Heads of Litigation on several topics including options open to the company, government cooperation, and the impact of the Yates Memo in FCPA Cases. The second panel will include former federal investigators and consultants who will talk about their unique roles in investigating FCPA cases and participating in FCPA trials.
Finally, I will lead a second panel which will discuss two seemingly disparate topics. The first is ethical considerations in corporate investigations after the Yates Memo and DOJ Pilot Program. The second topic involves the Fourth Estate. There will be some top current and former investigative reports and business columnists who will bring their unique perspectives on how they would investigate and report on FCPA violations and FCPA trials.
For more information, including the full agenda, CLE credit and rates, you should check out the ABA website for the First Foreign Corrupt Practices Act Mock Trial Institute by clicking here.
As I said the idea for a FCPA mock trial institute is so brilliant, you wonder why no one thought of it before.Click to tweet