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Don Ridings

Don Ridings practice focuses on international arbitration, complex civil litigation, and anti-corruption compliance. He dvises clients on a range of compliance issues arising under the Foreign Corrupt Practices Act and other anti-bribery regimes. He counsels clients on proposed transactions, guides companies as they develop or strengthen their anti-corruption compliance programs and controls, develops and delivers tailored training programs, leads internal investigations, and represents clients before enforcement authorities. Over the past decade he has advised scores of companies and organizations from around the world representing nearly every major industry.

October 17, 2023, Covington Alert

What You Need to Know

  • On October 4, 2023, Deputy Attorney General Lisa Monaco provided new and expanded policy guidance on corporate criminal enforcement, announcing a new Mergers and Acquisitions Safe Harbor Policy (“Safe Harbor Policy”).
  • The Safe Harbor Policy provides acquiring companies an opportunity to avoid criminal charges if they voluntarily self-disclose misconduct at acquired companies within six months of a merger or acquisition (“M&A”), fully cooperate in any DOJ investigation, engage in timely and appropriate remediation within one year of the transaction closing date, and pay restitution or disgorgement, as appropriate.
  • The Safe Harbor Policy—which we expect will be formalized in writing and incorporated into the Justice Manual—appears to draw heavily on policies and guidance from the Criminal Division dating back to 2008, but that will now be formalized, clarified, and applied across the Department, with different parts of the Department “tailor[ing] its application . . . to fit their specific enforcement regime.”
  • As with all of the Department’s recent policy announcements concerning the benefits of voluntary disclosure, significant questions remain. We discuss some of those below, and we will be watching to see how DOJ applies the Safe Harbor Policy in practice. At a minimum, however, companies should ensure that their pre- and post-closing diligence and integration processes are designed to quickly identify legacy or ongoing misconduct at acquired companies so that they may have an opportunity to consider the expected benefits and burdens associated with a voluntary disclosure under the Safe Harbor Policy.
  • In addition to announcing the Safe Harbor Policy, Deputy Attorney General Monaco noted a “dramatic” expansion in national security enforcement, new enforcement tools that the Department is deploying, continued focus on incentivizing companies to seek compensation clawbacks from individual wrongdoers, and even more policy changes to come. Deputy Attorney General Monaco’s announcement follows recent shifts in enforcement remedies sought by the Department, such as divestiture in certain criminal antitrust cases—an unprecedented remedial measure.

Continue Reading DOJ Provides Further Voluntary Disclosure Incentives, This Time Linked to M&A Transactions, and Signals Other Areas of Focus

The focus of this year’s UN Forum on Business and Human Rights was “putting rights holders at the centre” of business’ human rights due diligence efforts. In this post, ahead of Human Rights Day, we distill the important takeaways for business, drawing on Forum discussions among a range of stakeholders, including corporate representatives, governments, NGOs and rights-holders themselves.

1.  The business and human rights legal landscape continues to evolve at a rapid pace and this trajectory will continue.

Many governments worldwide are considering and implementing new human rights due diligence legislative initiatives. Aside from laws already passed and the EU sustainability due diligence initiative (see our earlier alert), there are similar proposals on the table in Spain, Belgium, Netherlands, Brazil, and other countries. Japan recently published non-binding guidance for business, intended to drive good practice.  Other countries are developing “National Action Plans” (“NAPs) under the UN Guiding Principles on Business and Human Rights (“UNGPs”), which can be a pre-curser to binding regulations. While legislative initiatives to date have largely been found in the Global North, we are also seeing movement in other regions: The African Union recently convened the first African Forum on Business and Human Rights.

While at varying stages of development and implementation, the fundamental tenets of these due diligence laws generally are similar. Companies are required to implement due diligence programs to identify and mitigate adverse human rights (and often environmental) impacts in their own operations and global supply or value chains.Continue Reading The 11th UN Forum on Business and Human Rights: Key Takeaways for Business

There have been several recent developments in international efforts to combat trade in goods made with forced labor, with important implications for responsible sourcing and global trade compliance programs.

On September 14, 2022, the European Commission (“Commission”) published a proposal to ban products made with forced labor from the EU market. The proposal notably goes beyond banning the importation of such products and would also create a ban on the export of products produced with forced labor and require their withdrawal from the EU market.

Meanwhile, enforcement by U.S. Customs and Border Protection (“CBP”) of the U.S. forced labor import prohibition has continued to intensify, including under the Uyghur Forced Labor Prevention Act (“UFLPA”). In early August 2022, CBP clarified the process for updating the UFLPA Entity List. In addition, CBP recently announced that it intends to integrate forced labor compliance requirements into the Customs Trade Partnership Against Terrorism (“CTPAT”) “trusted trader” program.

We discuss these developments and their implications below.

EU Forced Labor Product Ban

The European Commission has proposed a Regulation prohibiting products made with forced labor from being imported to, exported from, or sold in the EU, following an announcement by Commission President Ursula von der Leyen during her State of the Union address in September 2021.

The Commission’s proposal is the first step in the EU’s formal legislative process. The Regulation will now have to be agreed by the European Parliament and Council to become law, following which there will be an agreed delay—the Commission has proposed two years—before it applies in EU Member States. As it usually takes at least 12 months, and often closer to 18 months, for the European Parliament and Council to agree on a legislative text after a proposal by the Commission is published, it is unlikely that the Regulation will be adopted before the end of 2023, and it is therefore unlikely to become applicable earlier than late 2025.Continue Reading Breaking Developments in Forced Labor Trade Enforcement—the EU’s Proposed Forced Labor Product Ban and Recent Developments in U.S. Customs Enforcement