Our clients face daily challenges in navigating the complicated anti-corruption landscape as they conduct business around the globe. Morrison & Foerster has a deep bench and global footprint that allows us to provide seamless service across continents and time zones. We assist clients with cross-border investigations and remediation, government enforcement actions, day-to-day anti-corruption counseling, global risk assessments, M&A due diligence, training and establishing, implementing, benchmarking, and testing compliance programs to minimize risk effectively and efficiently.
We have a global team, with members in our U.S. offices, our five Asia-Pacific offices and three European offices. Many of our team members focus almost exclusively on FCPA, anti-corruption and cross-border investigations.
Meet James Koukios
James Koukios has joined the firm’s Litigation Department as a partner in the Securities Litigation, Enforcement & White-Collar Criminal Defense practice resident in the Washington, D.C. office. Mr. Koukios is the second high-ranking DOJ prosecutor to join MoFo in the past year, following the 2014 arrival of former Fraud Section Deputy Chief Charles Duross. In his most recent position, Mr. Koukios oversaw the Foreign Corrupt Practices Act, Health Care Fraud, and Securities and Financial Fraud Units. With the addition of Mr. Koukios, who previously served as an Assistant Chief in the FCPA Unit, MoFo is the only law firm in the world with two former FCPA Unit managers. During his tenure at DOJ, Mr. Koukios worked with domestic and foreign law enforcement authorities around the globe. He tried nearly two dozen jury cases, serving as a lead trial attorney in two landmark FCPA-enforcement trials: United States v. Esquenazi and United States v. Duperval. In addition to his service to DOJ, Mr. Koukios served as Special Counsel to the FBI Director, advising the Bureau’s leadership on criminal enforcement policy, congressional testimony, and interagency issues.
What attracted you to Morrison & Foerster?
The firm’s global platform, deep bench of talented attorneys, extensive roster of technology and life sciences clients, and its reputation for collegiality were among the many factors that attracted me to the firm. I look forward to continuing the firm’s success in helping clients navigate complex white-collar matters including cross-border anti-corruption challenges.
What do you consider some of the highlights of your tenure at DOJ?
Serving my country as a federal prosecutor for over a decade was, in and of itself, a highlight. As far as specific highlights, the Esquenazi and Duperval trials rank right up there. Both came at a time when DOJ’s ability to win an FCPA case at trial was being heavily questioned. But we were confident in our facts and our legal theories, and the jury, trial judge, and, ultimately, the Court of Appeals agreed. Another highlight that spanned my time in Miami and the Fraud Section was the AEY case, which involved a $298 million defense contract to supply ammunition to the Afghan National Army and Police. While we were investigating potential fraud and export licensing violations, a really terrific reporter from The New York Times, CJ Chivers, also started investigating the case and ended up publishing a front page, top of the fold piece in the Sunday NY Times. We ended up successfully prosecuting the company, three executives, and a financier for defense procurement fraud and made new law along the way.
From your experience overseeing the Health Care Fraud Unit, what are the important lessons for companies based on recent enforcement activities?
Health care will continue to be at the center of federal criminal and civil law enforcement, including through the False Claims Act, for years to come. The aging population and expanded coverage through the Affordable Care Act are factors that will serve to maintain and increase this trend. The Fraud Section’s move back into corporate health care fraud enforcement is also potentially significant. By leveraging the Health Care Fraud Unit’s deep expertise in prosecuting individuals and the Section’s overall expertise in corporate prosecutions, the corporate health care fraud initiative, which I was fortunate to be a part of as Senior Deputy Chief, has the potential to make the Fraud Section a significant player in this arena, joining DOJ’s Civil Division and several prominent U.S. Attorney’s Offices.
If you had to identify the biggest areas of anti-corruption concern for companies and their executives, what issues stand out?
Over the last several years, we’ve seen that no industry is immune to FCPA risk. For example, where the extractive, energy, defense, health care, and technology industries have long been at the center of FCPA enforcement, we have recently seen significant investigations in the retail and financial service industries. For example, the individual prosecutions in the Direct Access Partners case, in which I was personally involved, illustrated that, in addition to anti-money laundering and regulatory risks, those working in the financial services industries can also face FCPA risks when dealing with foreign officials.
In terms of specific risk areas, third-party intermediaries continue to be the most significant risk for many companies. From the moment I arrived at the Fraud Section’s FCPA Unit in 2009, I was struck by how many investigations involved the laundering of bribes through payments to consultants and other third parties. As amply demonstrated by the record-setting Alstom resolution, which I oversaw, this risk hasn’t lessened over the years. What this means for companies and their executives is that the compliance and audit functions have to be fully empowered and resourced, and the company’s internal controls have to be robust, well designed, and faithfully deployed to prevent, detect, and remediate violations involving third parties.
Are non-U.S. governments stepping up their anti-corruption enforcement activity?
Absolutely. From the UK to Brazil to Indonesia, and in between, non-U.S. governments have stepped up their anti-corruption enforcement activities in recent years. Through international organizations such as the OECD and other, more informal means, enforcement authorities from many countries are establishing relationships, sharing best practices, and sharing information as never before. China’s recent activities in this space are also potentially game changing. What all this means is that it is more likely than ever before that corrupt activities will be detected, investigated, and prosecuted and not always by the U.S. alone.
What are your predictions for the coming year regarding priorities for securities and financial fraud enforcement actions?
We are going to continue to see global investigations similar to the recent LIBOR and FX probes. With the SEC Enforcement Division’s Financial Reporting and Audit Task Force and the recent arrival of Andrew Weissmann, who was a key player in the Enron Task Force, as Chief of the Fraud Section, there is the potential for a significant increase in accounting fraud enforcement actions. It will also be interesting to see how the Southern District of New York and other offices react to the Second Circuit’s recent insider trading decision, United States v. Newman.
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