Pamela R. Davis, a partner in the San Francisco office, is a member of the Litigation Group. Pam has extensive experience in all facets of the FCPA and global investigations.
Pam focuses her practice on defending companies and individuals in government investigations involving white collar and regulatory matters. She has conducted numerous investigations for multinational organizations throughout the world. She is currently leading investigative teams throughout Asia, South America, South Africa and North America that require the use of Orrick's global resources in China, Hong Kong, the United Kingdom and the United States. Pam has been selected two times by the SEC and DOJ as an FCPA Monitor, involving a medical device company and a banking technology company. Pam gained the unique distinction of being selected three times by the U.S. government to serve as an independent FCPA monitor when she was recently selected by the SEC as the Independent Compliance Consultant for a separate medical device company.
In addition to her investigative practice, Pam conducts global reviews of existing compliance plans, FCPA Policies and Global Codes of Ethics, as well as due diligence associated with M&A work. She assists clients in revising existing FCPA and Global Codes of Ethics to fit today's heightened focus on anticorruption legislation. In addition to her significant work on FCPA related and global investigation matters, she also continues to represent companies and individuals in connection with a variety of other matters, including, health care fraud, antitrust offenses, securities fraud, trade secrets theft allegations, securities and export violations, mail and wire fraud, and environmental cases. Additionally, when a matter cannot, or should not be settled, she has substantial trial and courtroom experience in broad-based U.S. state and federal criminal matters, and related civil litigation, including more than 50 jury and court trials.
The following is a sample of Pam's experience.
- Currently serving as the SEC appointed Independent FCPA Compliance Consultant for a medical device company.
- Selected twice by the SEC and DOJ as an Independent FCPA Monitor for a banking technology company and a medical device company.
- Conducted FCPA due diligence in M&A transactions, including issuing an FCPA opinion in a cross-border Russian acquisition.
- Multiple representations of audit and special committees in internal investigations involving alleged violations of the FCPA throughout the world, including China, India, South America, Europe and Mongolia.
- Developed multiple FCPA policies, global code of ethics and compliance training materials, in multiple industries, including: clean fuel, medical devices sales and manufacturing, consumer retail products, construction equipment, on-line auctions, global supply chain and inventory management providers and social media.
- Representation of the former Controller to a U.S. public entity in conjunction with a DOJ/SEC FCPA investigation.
- Representation of the former Director of Marketing of Genentech in connection with civil False Claims Act litigation.
- Representation of former executives and employees of a Fortune 100 pharmaceutical company in connection with an investigation by the San Francisco United States Attorney's Office, and related civil proceedings, concerning allegations of off label marketing of a heart failure drug.
- Representation of the former President of Countrywide Financial Corporation, the nation's largest mortgage lender, in connection with investigations by and litigation with the California Attorney General, and related consumer class and individual actions.
- Representation of a durable medical equipment company in connection with criminal and civil investigation by the California Attorney General concerning billing practices.
- Representation of a health care service provider and physician in connection with health care fraud investigation.
- Representation of a medical device company in connection with allegations regarding the FCPA.
- Prosecution of claims of misappropriation of trade secrets, conversion and breach of contract involving computer telephony subsystems and components.
- Representation of a senior executive charged with price fixing/antitrust violations in the telecommunications industry.
- Representation of a senior executive of Samsung Semiconductor, Inc., charged with criminal price fixing/antitrust violations in the DRAM industry.
- Representation of numerous companies and individuals in connection with insider trading and other securities fraud investigations (civil and criminal).
- Representation of a power generator in connection with the California Attorney General's investigation of alleged market manipulation arising out of California's energy crisis.
- Representation of a major computer manufacturer in connection with allegations of exporting computers to Russia without a license.
- Representation of corporate victims of trade secrets theft, including investigation of wrongdoing and advocacy of victims' interests before federal and state law enforcement officials.
- Representation of a defense contractor in connection with investigation into alleged false statements pertaining to government contracts.
- Representation of employers and supervisors in connection with investigations of alleged criminal OSHA violations arising out of industrial accidents.
- Representation of an audit committee in an internal investigation in connection with stock option backdating allegations.
This is the third in a series of posts where we will explore critical elements of a successful compliance program. In February, the Department of Justice’s Fraud Section offered a new perspective on what the government expects in an anti-corruption compliance program, in the form of a series of questions that companies should be prepared to answer about their program. The guidance offers companies a roadmap for building or assessing their compliance program. In this series, we will explore recent and past guidance on key compliance topics, as well as key takeaways for companies of all sizes.
Policies and Procedures are the cornerstone of a compliance program. While traditional sources of guidance, such as the DOJ and SEC FCPA Resource Guide and DPAs themselves, lay out the government’s fundamental expectations with regard to policies and procedures, the Fraud Section’s new guidance goes deeper, reflecting an approach that will assess not only the existence but also the design and integration of policies and procedures.
The most basic expectation with regard to policies and procedures is that companies will have a code of conduct prohibiting violations of the FCPA and the law’s foreign counterparts. Additionally, companies should have policies and procedures covering, among other things, gifts, travel & entertainment, expenses, political and charitable contributions, and payments to third parties. Finally, traditional sources of guidance make clear that companies should also have a set of finance and accounting internal controls reasonably designed to ensure the maintenance of fair and accurate books and records.
This is the second in a series of posts where we will explore critical elements of a successful compliance program. In February, the Department of Justice’s Fraud Section offered a new perspective on what the government expects in an anti-corruption compliance program, in the form of a series of questions that companies should be prepared to answer about their program. The guidance offers companies a roadmap for building or assessing their compliance program. In this series, we will explore recent and past guidance on key compliance topics, as well as key takeaways for companies of all sizes.
It would be a mistake for companies to dismiss the Fraud Section’s recent guidance, which one high-level DOJ official suggested may be used more broadly by DOJ’s Criminal Division, as business as usual. It is not just more of the same. The guidance does more than merely flesh-out existing direction; it operationalizes compliance. Consider two examples from the guidance’s “Autonomy and Resources” section:
- Empowerment – Have there been specific instances where compliance raised concerns or objections in the area in which the wrongdoing occurred? How has the company responded to such compliance concerns? Have there been specific transactions or deals that were stopped, modified, or more closely examined as a result of compliance concerns?
- Compliance Role – Was compliance involved in training and decisions relevant to the misconduct? Did the compliance or relevant control functions (e.g., Legal, Finance, or Audit) ever raise a concern in the area where the misconduct occurred?
This is the first in a series of posts where we will explore critical elements of a successful compliance program. In February, the Department of Justice’s Fraud Section offered a new perspective on what the government expects in an anti-corruption compliance program, in the form of a series of questions that companies should be prepared to answer about their program. The guidance offers companies a roadmap for building or assessing their compliance program. In this series, we will explore recent and past guidance on key compliance topics, as well as key takeaways for companies of all sizes.
A commitment from high-level management is typically the first compliance component discussed in government guidance and Deferred Prosecution Agreements. Commonly referred to as “Tone at the Top,” this critical concept has previously been described in vague, generic ways. See, for example, this excerpt from Attachment C of DOJ’s recent DPA with Embraer S.A., which is identical to language in many other agreements:
“The Company will ensure that its directors and senior management provide strong, explicit, and visible support and commitment to its corporate policy against violations of the anti-corruption laws and its compliance code.”
On November 14, 2012, the Department of Justice (“DOJ”) and Securities Exchange Commission (“SEC”) issued a much anticipated Resource Guide to the U.S. Foreign Corrupt Practices Act. Despite the fact the Guide is 130 pages, it is a surprisingly easy read. It provides a rare glimpse into the DOJ and SEC’s interpretation of the FCPA and the guiding principles for enforcement. Although the Guide will undoubtedly provide much awaited guidance on existing issues with which companies are currently grappling, it also serves to reinforce the well held belief that the DOJ and SEC are taking a hard line view on the FCPA.
The Guide provides insights into the government’s view on various aspects of the FCPA and covers issues surrounding both the Anti-Bribery Provisions as well as Books and Records and Internal Controls Provisions. Below are just a few key highlights.
The Guide lays out explanations of the key provisions of the FCPA, and offers hypothetical examples that highlight the DOJ and SEC’s interpretation of those key provisions. For example, in a lengthy discussion regarding what “anything of value” means, the guide discusses the various forms that an improper benefit can take–from travel expenses to payments of cash through “consulting fees” or “commissions” to expensive gifts. Examples of proper gifts is also discussed: “Some hallmarks of appropriate gift-giving are when the gift is given openly and transparently, properly recorded in the giver’s books and records, provided only to reflect esteem or gratitude, and permitted under local law. Items of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items, are unlikely to improperly influence an official, and, as a result, are not, without more, items that have resulted in enforcement action by DOJ or SEC.” READ MORE