ABA Annual Meeting: Friday, August 9, 2013 (San Francisco, CA)

1. These Days Everybody Has Long Arms: Global Jurisdiction for Criminal Offenses and International Double Jeopardy ABA Annual Meeting: Friday, August 9, 2013 (San Francisco, CA) The opinions expressed in this presentation are those of the panelist and do not reflect the opinions, practices nor policies of the Panelists' respective employers, nor do they constitute legal advice.

2. Tyler Hodgson, Partner, Borden Ladner Gervais (moderator) • Andrew S. Boutros, Assistant US Attorney, USAO – NDIL (panelist – in his personal capacity) • T. Markus Funk, Partner, Perkins Coie (panelist) • El Cid Butuyan, The World Bank (panelist) Note:The opinions expressed in this presentation are those of the presenters and do not reflect the opinions, practices nor policies of the presenters' respective employers, nor do they constitute legal advice.

3. FCPA Enforcement Overview and Trends Andrew S. Boutros, AUSA, USAO – NDIL (Chicago) T. Markus Funk, Partner, Perkins Coie

4. FCPA Primer Anti-bribery Provisions: The FCPA prohibits: • Giving or offering; • Anything of value; • To a foreign government official, political party, or party official; • With the corrupt intent to influence that official in his or her official capacity; and • To secure an improper advantage in order to obtain or retain business. Accounting Provisions: “Issuers” must maintain accurate books and records and reasonably effective internal controls

5. 2008 - 2012 CompanyCountryDOJ & SECRankYear Siemens Germany $800 mm 1 2008 KBR/Halliburton *USA* $579 mm 2 2009 BAE Systems UK $400 mm 3 2010 Total S.A. France $398.2 mm 4 2013 Snamprogetti/ENI Holland/Italy $365 mm 5 2010 Technip SA France $338 mm 6 2010 JGC Construction *USA* $218.8 mm 7 2011 Daimler Germany $185 mm 8 2010 Alcatel-Lucent France $137.4 mm 9 2010 Magyar Telekom/ Hungary/ $95 mm 10 2011 Deutsche Telekom Germany Panalpina Switzerland $81.9 mm 11 2010 Johnson & Johnson *USA* $70.1 mm 12 2011 Top Rankings – Big Numbers

6. Dodd-Frank Whistleblower Reward Provisions • Rewards individuals who provide tips to the SEC leading to enforcement actions that exceed $1 million in sanctions • Whistleblowers can earn a payout of 10% to 30% of any monetary sanctions collected • Tipster must voluntarily provide “original information” about a possible federal securities law violation that has occurred, is ongoing, or is about to occur • 120-day rule • Anti-retaliation protections for employee-whistleblowers, including a cause of action in federal court; reinstatement; double back pay with interest; and litigation reimbursement

7. Putting Global Bribery (and Enforcement) Into Perspective Transparency International Corruption Perceptions Index Scale of 1 (poor reputation) to 10 (good reputation)

8. Coming to Grips with the New Enforcement Reality: “Carbon Copy” Prosecutions Andrew S. Boutros, AUSA, USAO – NDIL (Chicago) T. Markus Funk, Partner, Perkins Coie

9. “Consecutive prosecutions/investigations by multiple jurisdictions for same conduct” Four Elements: 1. Jurisdiction A 2. Files an enforcement action 3. Based on charging document/guilty plea/admissions 4. From Jurisdiction B So what is a “Carbon Copy” Prosecution?

10. The Halliburton Case Study • 2009 • Oilfield giant Halliburton settles with US authorities ($579 million) Bonny Island bribe matter involving former subsidiary KBR • December 7, 2010 • Nigerian anticorruption authorities file 16-count criminal complaint against Halliburton, related companies, and executives (including former V.P. and Halliburton CEO Cheney • Seek extradition of individual defendants • Two weeks later – Halliburton settles case

11. Total, S.A. Charged in US and France • May 29, 2013 • USA: French oil and gas Company, Total, S.A., pays combined $398.2 million to US authorities to resolve FCPA, B&R, and internal control charges • DOJ: $245.2 mm criminal penalty; criminal information; 3-year DPA; 3-year independent corporate compliance monitor; and agreement to cooperate with DOJ and foreign law enforcement • SEC: $153 mm in disgorgement and prejudgment interest; and cease-and-desist order • France: Announced it requested Total, Total’s Chairman, and two others be referred to French Criminal Court for prosecution, including for France’s foreign bribery law

12. DOJ Press Release – Total’s Prosecution • “Today we announce the first coordinated action by French and U.S. law enforcement in a major foreign bribery case,” said Acting Assistant Attorney General Raman. “Our two countries are working more closely today than ever before to combat corporate corruption, and Total, which bought business through bribes, now faces the criminal consequences across two continents.” • “The department also acknowledges and expresses its deep appreciation for the cooperation and partnership of French law enforcement authorities.”

13. But, French Criminal Court Acquits • July 9, 2013 • French Criminal Court acquits Total and 18 individuals, including Total CEO • Total faced a fine of up to 1.88 million euros ($2.4 million) • Total’s CEO was charged with complicity in misusing company assets and faced five years of prison and a fine of 375,000 euros • Total argued that OFFP was run by middlemen, that system was complex and opaque, and company lacked knowledge • Reuters reported that “prosecutors struggled to identify which Total executives might have been aware of how the U.N. program was being illegally manipulated and whether they had given orders to participate regardless”

14. Other ExamplesConsecutive prosecutions/investigations by multiple jurisdictions for same conduct • Shell • $48.1 million to DOJ and SEC • $10 million to Nigerian government • Snamprogetti/ENI • $365 million to DOJ and SEC • $32.5 million to Nigerian government • BAE Systems • $400 million to DOJ • £30 million (~$46.5 million) to UK’s SFO (simultaneously) • Innospec • $27.5 million to DOJ, SEC, OFAC • £8.5 million (~$12.7 million) to UK’s SFO (simultaneously)

15. Other Examples (cont.) • Alcatel-Lucent • $137.4 million to DOJ and SEC • $10 million to Costa Rican government • JGC Corporation • $218.8 million to DOJ million to DOJ • $28.5 million to Nigerian government • Siemens • $800 million to DOJ and SEC • $569 million to Munich Prosecutor (simultaneously) • $46.5 million to Nigerian government • $336 million to Greek government • $100 million to World Bank Group

16. Hard to Later “Change Tune” • DOJ and (now) SEC require admission, acceptance, or acknowledgement of corrupt conduct in NPAs, DPAs, plea agreements, and settlements • Note: SEC requires this only in parallel DOJ resolutions • Standard plea/NPA/DPA language strictly bars company from later taking public position contradicting factual basis (DOJ decides)

17. Consider also . . . Mandated Cooperation with US and Foreign Authorities • Data Systems & Solutions (ED Va 2012) • “[S]hall also cooperate fully with other domestic or foreign law enforcement authorities and agencies” • Alcatel-Lucent (SD Fla 2010) • “[Must c]ooperate fully with such other domestic or foreign law enforcement authorities and agencies, as well as Multilateral Development Banks, in any investigation of Alcatel-Lucent” • Shell (SD Tex 2010) • “[Shall c]ooperate fully with other domestic or foreign law enforcement authorities and agencies…in any investigation of [Shell]”

18. Key Strategic Implications • Simultaneous multi-district disclosure? • Must gauge likely reaction of U.S./foreign authorities • Global settlement or multi-front war? • Dissuade US or foreign authority from prosecuting? • Double Jeopardy Implications? • US doesn’t recognize international double jeopardy (but others do – see UK and BAE case) • Collateral Estoppel (“issue preclusion”) impact? • Foreign proceedings fair, impartial, compatible with US conceptions of justice? (Civil and criminal cases) • No final acquittal/conviction required

19. The World Bank and Cross-Debarments El Cid Butuyan, Senior Litigation Specialist, World Bank

20. International Double Jeopardy Tyler Hodgson, Partner, Borden Ladner Gervais LLP

21. Different theories of criminal jurisdiction • Territorial • Universal • National • Passive Personality • Protective US v. Clark, 435 F. 3d 1100 (9th Cir. 2006)

22. Presumption Against Extraterritoriality • Presumption against extraterritoriality: “The legal presumption that Congress ordinarily intends federal statutes to have only domestic application” (US v. Clark) Can be overcome by evidence that Congress intended law to apply extraterritorially. • If overcome, extraterritorial application must not offend any principle of international law

23. US v. Neil, 312 F. 3d 419 (9th Cir. 2002) • Grenadian defendant employed on Carnival cruise ship with Panamanian registration. • Sexually assaults 12 year old American citizen in Mexican territorial waters • Cruise departed and returned from port in California • Defendant argued that US did not have extraterritorial jurisdiction over the crime

24. Principles of international law relied upon by Court in Neil 1. Passive Personality Principle Crimes committed against a country’s nationals 2. Territorial principle “ Under the territorial principle, the United States may assert jurisdiction when acts performed outside of its borders have detrimental effects within the United States.”

25. Traditional application of territoriality principle “All crime is local. The jurisdiction over the crime belongsexclusively to the country where the crime is committed” -Lord Chancellor Halsbury, Makin v. AG for New South Wales (1891)

26. Evolution of territoriality principle • Terminatory theory or “last acts” doctrine • Comity theory of jurisdiction (UK) • Real and substantial connection (Canada) • Effects doctrine (UK)

27. Exclusive v. Concurrent Jurisdiction What happens if more than one country seeks to punish the same conduct? - Legislative Summary, Corruption of Foreign Public Officials Act (Canada)

28. Exclusive vs. Concurrent Jurisdiction Person previously tried outside Canada 5 (4) If a person is alleged to have committed an act or omission that is deemed to have been committed in Canada under subsection (1) and they have been tried and dealt with outside Canada for an offence in respect of the act or omission so that, if they had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, they are deemed to have been so tried and dealt with in Canada. Corruption of Foreign Public Officials Act x

29. Different approaches to double jeopardy: the United Kingdom “[A] final determination in a Court having competent jurisdiction is conclusive in all Courts of competent jurisdiction. Therefore if A, having killed a person in Spain, were there prosecuted, tried and acquitted, and afterwards were indicted here, at Common Law, he might plead the acquittal in Spain as a bar” - Captain Roche’s Case (1775) “The common law doctrine of autrefois convict or autrefois acquit…has always applied whether the previous conviction or acquittal based on the same facts was by an English court or a foreign court.” - Lord Diplock, Treacy v. DPP, [1971] 1 All ER

30. Successive prosecutions for same conduct: the American approach The dual sovereignty doctrine United States v. Richardson, 580 F. 2d 946 (9th Cir. 1978) Health v. Alabama, 474 U.S. 82 (1985) United States v. Rezaq, 134 F. 3d 1211 (1998) Carbon copy prosecutions

31. Global prosecutions, global resolutions • American vs. British approach to double jeopardy • Simultaneous engagement of different national authorities: • R. v. Griffiths Energy, [2013] A.J. No. 412 (QB) • SEC v. Stanko J. Grmovsek; OSC v. Grmovsek

32. Questions?