In the new FCPA Corporate Enforcement Policy, it stated that as one of the items required for a company to receive full credit for timely and appropriate remediation, “Appropriate retention of business records, and prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications”. In other words, the problem of modern disappearing text messaging apps.

In this episode, I visit with  Brian Burke, partner at Shearman & Sterling and head of the firm’s Asia Litigation practice about the continued fallout since the release of the Justice Department’s new FCPA Corporate Enforcement Policy and its requirement instant messaging. We discuss the new Policy’s requirement and how companies can protect themselves. Brian can also speak to how companies can ensure the use of applications like WeChat and WhatsApp in business settings does not inadvertently threaten an employer’s subsequent ability to seek a declination or reduction in fines – and the practical measures companies can take in an effort to comply with the date retentions requirement under the Policy.

Some of the highlights include:

  • Document control and retention have been a requirement for some time, why did the DOJ feel the need to specifically address this issue?
  • Are there any enforcement actions we can look to for guidance?
  • Can you suggest any practical steps a company can take? Ban What’s App communications? Ban Instagram or any other messenger app?
  • In the era of BYOD, how does a company police this with its workforce, particularly oversees?
  • What must a company show to the DOJ to demonstrate compliance with this requirement?
  • What advice are you giving clients on this issue?

For a copy of the firm’s most recent FCPA Trends & Patterns in the Enforcement of the FCPA, click here.

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