On June 13, 2018, in its latest decision in a long-running litigation, the U.S. District Court for the District of Columbia considered the applicability of certain exemptions under the Freedom of Information Act (“FOIA”) to documents sought by journalists relating to the actions of the independent compliance monitor that Siemens AG was required to retain under the terms of its 2008 plea agreement for violations of the Foreign Corrupt Practices Act (the “FCPA”). Broadly speaking, although the court concluded that portions of the documents that related to Siemens’ business operations and the DOJ’s analysis of the monitor’s activities were exempted from disclosure, the court also required the DOJ to produce other portions of those materials and to reevaluate, based on the court’s decision, whether additional materials had to be disclosed. The decision, and the lengthy litigation over the application of FOIA to these materials, highlight the complexity of identifying the boundaries of the FOIA protection applicable to the typically sensitive and confidential information companies provide to compliance monitors and the risk that such information later will have to be disclosed once it is in the hands of the government. Continue Reading Recent District Court Decision on Applicability of FOIA to Siemens FCPA Monitorship Documents Provides Guidance on Scope of Possible Disclosures
On April 23rd, the European Commission adopted a proposal for a directive on the protection of whistleblowers reporting breaches of Union Law.
The proposal sets out minimum standards of protection for whistleblowers against retaliation when they report breaches in specific policy areas. The proposal is premised on the view that the lack of a common, effective approach to whistleblower protection across Member States can impair the enforcement of European law. Continue Reading The European Commission Proposes new Rules to Strengthen Whistleblower Protection
Internal investigations and public enforcement actions often pose legal issues involving multiple practice areas and jurisdictions.
In Italy, internal investigations may concern criminal, corporate, contract, data protection and labor law issues.
In the past, internal investigations in Italy tended to be mainly “reactive,” responding to public enforcement activities. The challenge in these investigations was balancing complying with disclosure obligations in relation to public enforcement authorities with volunteering confidential or disproportionate information. Continue Reading Internal Investigations and Public Enforcement: Italy at a Glance
Companies operating in Italy should take note of an important change in Italian law introducing more comprehensive regulations on whistleblowing procedures in the public and non-financial private sector. Among other relevant aspects, Law No. 179/2017, which entered into force on December 29, 2017, expands existing whistleblowing protections to the private sector, requiring companies that have adopted formal compliance programs pursuant to Legislative Decree No. 231/2001 (“Decree 231”) to also implement a formal whistleblower program.
Prior to Law No. 179/2017, only financial services and banking firms were required to implement formal whistleblower programs, pursuant to Italian legislation implementing European Directive 23/2013 (CRDIV). In addition, Law No. 190/2012, also called the “Anticorruption Law,” provided protection against retaliation for civil servants who reported the commission of a wrongdoing. Many companies operating in Italy have adopted formal compliance programs pursuant to Decree 231, incentivized by a provision that affords a defense against certain types of criminal offences for firms with such a program. Law No. 179/2017 requires such companies to integrate a formal whistleblower policy as part of their compliance programs. Continue Reading The New Italian Law on Whistleblowing Procedures and Its Impact on Compliance Programs