On September 5, 2019, Debevoise & Plimpton and Mattos Filho Advogados co-hosted the inaugural session of the Brazil-U.S. 40 and Under White Collar Lawyers Initiative, organized by Daniel Aun, Thiago Jabor, and Rogério Taffarello. Debevoise partners David A. O’Neil, Andrew M. Levine, and Lisa Zornberg discussed Strategies for Effective Communications with U.S. Prosecutors, as well as Challenges and Opportunities of Brazil’s Evolving Anti-Corruption Landscape. The event was moderated by Daniel Aun, a lawyer at Debevoise & Plimpton.
Initiative members gathered at Debevoise’s offices in New York (where the event took place live) and Washington, D.C., and Mattos Filho’s offices in São Paulo, Rio de Janeiro, and Brasília. Below is a brief report of the session’s highlights, prepared by the representatives of the host firms and Initiative members, and not a verbatim transcript.
• Strategies for Effective Communications with U.S. Prosecutors
Leveraging their experience as former prosecutors and as defense counsel, O’Neil and Zornberg discussed strategies for effective communications with U.S. prosecutors, including in connection with cross-border matters.
The central premise of their talk was that the successful representation of clients in U.S. white collar matters largely depends on advocacy before the U.S. government — often prior to the charging of any crime — that happens entirely outside of a courtroom and is not governed by formal rules. For example, this includes attempting to persuade the government that no crime was committed, helping a client navigate an investigation in which it is cooperating with the government, and negotiating a potential pre-charge resolution (e.g., corporate non-prosecution agreement, individual guilty plea, etc.).
In light of that, O’Neil and Zornberg shared advice and experiences, and discussed various relevant insights, including the importance of: (i) developing and maintaining credibility with the government; (ii) choosing the right counsel for each particular matter; (iii) getting a deep understanding of the facts as soon as possible; (iv) offering important context to the government early on, including as it relates to the particular client, industry, or region/country at stake; (v) addressing known negative facts head on and sharply focusing on exculpatory or alternative interpretations of seemingly negative evidence; (vi) dropping weaker legal arguments in favor of stronger ones; (vii) trying to build rapport with the government and to understand its thinking and posture; and (viii) weighing carefully if and when a client is best served by attending government meetings.
• Challenges and Opportunities of Brazil’s Evolving Anti-Corruption Landscape
Next, Levine discussed challenges and opportunities involving Brazil’s evolving anticorruption landscape. First, he noted Brazil’s remarkable progress over the last six years with respect to anti-corruption compliance and enforcement, notwithstanding fair criticisms and missteps along the way. Brazil-U.S. 40 and Under White Collar Lawyers Initiative
Second, while recognizing this metamorphosis, Levine suggested there remains room for further improvement. In particular, he identified challenges including the multiplicity of Brazilian enforcement authorities and related difficulties in achieving the reasonable desire of greater finality when resolving enforcement matters.
Third, alongside Brazil’s anti-corruption journey, Levine detailed how new anticorruption laws and initiatives in Latin America offer great potential for broader enforcement. Although new laws abound, he added that so do questions about how and to what extent authorities in the region will enforce these laws.
Fourth, Levine stated that both the present and future of anti-corruption enforcement are undoubtedly global, albeit with local variations. He then explored how this proliferation presents challenges for both companies and enforcers alike. And last, Levine addressed how enforcement promotes compliance and suggested that authorities should encourage and reward genuine compliance efforts, including, under appropriate circumstances, by declining to bring actions where they otherwise could. Levine concluded by recounting the corollary challenge for companies to design and maintain effective compliance programs that make sense in their respective risk environments and that actually
work as intended.