T. Markus Funk

“’The business community will be one of the most important change-makers in the human trafficking area in at least 20 years,’ said Funk, a partner at Perkins Coie in Denver who co-chairs the firm’s corporate social responsibility and supply chain practice. But it won’t be easy, Funk cautioned. [Mandated compliance] can be a daunting task, he said . . . .”

The article, under the “In-Demand Firms” header, features Markus Funk’s representation of Joel Esquenazi in his appeal from the longest-ever FCPA sentence.

Since 2002, the Ethical Sourcing Forum has provided companies with the business intelligence and data they need to make informed decisions on their increasingly offshore, outsourced supply chain. In December 2012, the Ethical Sourcing Forum issued a press release announcing that partner T. Markus Funk would be their March 7, 2013, Keynote Speaker. Markus in his address will survey the impending regulatory CSR deluge.

Wall Street Journal featured Markus Funk and Michael Sink’s Inside Counsel article on the U.S. Travel Act.

The Green Bag Journal of Law selects T. Markus Funk and Judge Virginia Kendall's book Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses as a “2012 Honoree For Exemplary Legal Writing”.

Partner, T. Markus Funk and Counsel Michael Sink, were quoted by Law Week Colorado on the constitutional issues presented by the government’s expansive interpretation of “foreign official” under the Foreign Corrupt Practices Act.

The article discusses the Perkins Coie white collar defense team of T. Markus Funk and Robert N. Miller and their role in representing insurance executive Michael Van Gilder against USDOJ and SEC insider trading charges.

Various media outlets, including the Chicago Tribune, Chicago Sun-Times, South China Morning Post, WLS Radio, NPR, Fox, and CBS, featured Perkins Coie Partner T. Markus Funk’s role in the landmark prosecution of recently-deceased Chicago organized crime boss Frank Calabrese, Sr.

Partner T. Markus Funk, who serves as lead appellate counsel for Joel Esquenazi in his historic FCPA case, was quoted by the Wall Street Journal on the appellate team’s objectives.  The Wall Street Journal had previously named Esquenazi 2012’s top corruption case/sentence.

Perkins Coie announced that Law Week Colorado, the state’s only newspaper published specifically for lawyers, law firms, corporate counsel and the judiciary, selected Denver partner Markus Funk as one of the top ten Lawyers of the Year.  Law Week Colorado has been presenting the Lawyer of the Year awards since 2008.

Click here for the E.O. Flow Chart.

Judge Richard A. Posner, in his concurrence in Unites States v. Craig, cited Funk and Judge Virginia Kendall’s influential Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses (2012) for the proposition that “sex offenders are more likely to recidivate than other criminals.”

The World Bank in Washington, DC, invited T. Markus Funk and Judge Virginia Kendall to discuss their critically-acclaimed book, Child Exploitation and Trafficking.  From the invite:  “Funk and  Kendall will draw on their extensive experience to provide a practical survey of the history of child sexual exploitation, to discuss the interconnected web of domestic and transnational federal laws and law enforcement efforts launched in response and to examine the range of responses.”

The ABA-CJS Newsletter cover story focuses on the ABA Global Anti-Corruption Task Force’s various successes, including the 2012 publication of the Special Report on Compliance (authored by the University of Chicago Corporate Lab, in conjunction with Microsoft).  Denver Partner T. Markus Funk Chairs the Task Force with Chicago AUSA Andrew S. Boutros.

“’[Funk and Kendall’s] Child Exploitation and Trafficking: Examining the Global Challenges and US Responses is a book of broad appeal that offers practical advice while sharing the wealth of experience that the authors have in prosecuting child exploitation and trafficking cases,’ said Norma Abbene, Deputy Counsel to the Mayor.

The ABA Journal, in an article titled “Foreign Exchanges,” quotes Partner T. Markus Funk in the context of increasingly vocal calls for targeted reform the Foreign Corrupt Practices Act.

Mikhail Reider-Gordon’s review of Partner T. Markus Funk and US District Judge Virginia Kendall’s Child Exploitation and Trafficking:  Examining the Global Challenges and U.S. Responses notes that book “provide[s] perhaps the first comprehensive history and current account of child exploitation and trafficking. . . . 

Denver Partner T. Markus Funk is leading the landmark first appellate challenge to the government’s interpretation of the Foreign Corrupt Practices Act (Funk was not involved in the trial or sentencing)

Wall Street Journal names Joel Esquenazi Case 2012’s #1 Corruption Sentence

The article examines the charging potential inherent in 18 U.S.C. § 1519’s broad language.

"It’s no secret that Funk’s been in the news lately . . . . Yet this corporate law specialist has reason to be. His experience in supply-chain management and corporate social responsibility is nationally recognized. And you’ll likely keep hearing from him as companies continue to navigate the muddy waters of the Dodd Frank Act . . . ."

Seventh Circuit Court of Appeals Judge Richard Posner (joined by Judges Tinder and Hamilton) repeatedly cited partner T. Markus Funk’s book as authority for the use and effectiveness of computer encryption and the presence of files on hard drives even after a user “deletes” them. 

In InsideCounsel’s article, “A Sox Provision that Could Blindside Your Company,” Partner T. Markus Funk is quoted extensively on the recent emergence of 18 U.S.C. 1519, which prohibits anticipatory obstruction of justice.

The SEC today announced its final rules ordering companies to disclose their efforts to trace “Conflict Minerals” in their supply chains.  Perkins Partner (and former USDOJ and State Department lawyer) T. Markus Funk was widely quoted on the new Rules’ real-world impact on the business community.

The Chicago Daily Law Bulletin quoted Partner T. Markus Funk on the global challenges human trafficking poses, and referenced Funk's 2012 anti-trafficking book (co-authored with US District Judge Virginia Kendall).

Briefing sponsored by Senators Rubio and Cardin
Click here for video.

InsideCounsel, in an article about US v. Noriega, quoted Partner T. Markus Funk on the scope of the Foreign Corrupt Practices Act.

The American Bar Association appointed Perkins Coie Partner T. Markus Funk, who along with Partner J. Cabou helped set up the firm's Corporate Social Responsibility and Supply Chain Compliance Practice (the first such specialized practice among the AmLaw 100), to serve as  Co-Chair of the ABA's Corporate Social Responsibility Committee (Markus is also the Chair of the ABA-Criminal Justice Section's Corporate Social Responsibility and Forced Labor Task Force).

Perkins Coie Partner, T. Markus Funk and Associate Michael Sink, filed their opening brief on behalf of Joel Esquenazi, who received the longest-ever sentence in an Foreign Corrupt Practices Act (FCPA) case (15 years).  This briefing, which Michael Koehler (the "FCPA Professor") described as "historic," represents the first time the much-debated definition of what constitutes a "foreign official" for FCPA purposes will be addressed by an appellate court.

Hunter College posted a video of Perkins Partner T. Markus Funk and his co-author, Judge Virginia Kendall, discussing their anti-trafficking book with members of the New York media prior to the March 8, 2012, Mayor's Office event.

In a story on human trafficking, the Chicago Tribune quoted T. Markus Funk on the phenomenon of organized human trafficking and mentioned his book (co-authored with U.S. District Judge Virginia Kendall) on the same subject.

T. Markus Funk, Special Advisor to the Council and Co-Chair of the Global Anti-Corruption Task Force, recently released his new book entitled, Child Exploitation and Trafficking, which he co-authored with Virginia M. Kendall.

Sponsored by the Office of the Mayor of New York City, Perkins Coie Partner T. Markus Funk and co-author U.S. District Judge Virginia Kendall discussed their book Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses at the Roosevelt House in front of a capacity crowd.  Impacto Latin News covered the event, describing it as "incredibly informative".

Funk's article and accompanying decision trees will be used as part of the International Bar Association, OECD, and United Nations Office on Drugs and Crime's ongoing effort to (1) investigate the role of lawyers in international transactions affected by corruption, (2) raise awareness among legal professionals about the devastating effects that may result from this crime, and (3) promote the highest standards to prevent corruption in this profession.

According to the influential FCPA Compliance and Ethics Blog, "these articles fill a valuable niche for the compliance practitioner. I hope that you will review and use them in your practice going forward."

T. Markus Funk was interviewed and quoted by the Denver Post in an article examining the global phenomenon of trafficking in human beings and the nexus between organized crime and this particular form of exploitation.

University of Chicago; Northwestern University School of Law
Judge Posner, author of nearly 40 books and widely considered one of the world's most distinguished scholars, described Funk and Kendall's Child Exploitation and Trafficking: Examining the Global Challenges and U.S. Responses as “a milestone on the road to improved policy in this difficult and important area, this book will be an invaluable resource to judges, prosecutors, police, policymakers, criminologists, and the defense bar.”

Partner T. Markus Funk was featured in an ABC-7 report on the guilty pleas of Jerry Scalise and Robert Pullia

Funk and Trombino in their article break down the form, function, and flow of the  FCPA and the UK Bribery Act.

T. Markus Funk and M. Bridget Minder author "Bribery of Foreign Officials: The FCPA in 2011 and Beyond: Is Targeted FCPA Reform Really the “Wrong Thing at the Wrong Time”? in the Bloomberg Law Reports. The in-depth piece not only summarizes 2011 enforcement trends, but also addresses the arguments raised against the growing call for targeted FCPA reform.

The BBC reports that Brazil's official "dirty list" of employers using slave labor was extended to include 294 companies and individuals, representing the highest number since officials began compiling the list in 2004.

The White Collar Crime Prof Blog published Perkins Coie Partner and ABA Global Anti-Corruption Task Force Co-Chair T. Markus Funk's novel and practical UK Bribery Act decision tree/"cheat sheet" and chart comparing the anti-bribery laws of the US, UK, China, and India describing it as "extraordinary."

High-visibility outlets, including the FCPA Professor ("This is a very useful one-stop chart for anyone involved in FCPA issues or likely to encounter foreign bribery issues"), the FCPA Blog ("Travel Act bribery cases made simple . . . an excellent tool"), and the White Collar Crime Prof Blog ("[C]aptures the essence of the FCPA . . . It's terrific"), have posted Perkins Coie partner T. Markus Funk's FCPA/Travel Act Decision Tree.

"[Providing] a resource regarding not only victims, but various sex crimes, the court system, defense strategies and computer techniques perpetrators use to hide information, as well as how law enforcement can find it."

Perkins Coie Partner and ABA Global Anti-Corruption Task Force Co-Chair T. Markus Funk has drafted a very handy decision tree sketching out the key analytical steps in evaluating a potential bribery situation.

The Chicago Daily Law Bulletin, in an article titled "Blago Faces Nearly $22K in Court Penalties," quoted T. Markus Funk on how and when federal judges typically impose fines on convicted defendants such as former Illinois governor Rod R. Blagojevich.

InsideCounsel, in an article titled "Data shows that companies lose a week's earnings to fraud every year" quoted partner T. Markus Funk throughout the article addressing the quantifiable impact of fraud on companies' bottom line. The story ran in the December 2011 issue of InsideCounsel.

Law Week Colorado

T. Markus Funk, a white collar partner at Perkins Coie and former federal prosecutor, was tapped to draft and present a resolution at the ABA Criminal Justice Section Council meeting to clarify the FCPA. 

Corporate Counsel Magazine, in an article titled "The End of an Era for Stock Option Backdating Scandals," quotes partner T. Markus Funk: "T. Markus Funk, a partner in Perkins Coie's Investigations and White Collar Defense group, has been listening. Although the backdating scandals are now mostly history, Funk says the enduring lesson for in-house and outside counsel is that the SEC and federal prosecutors are likely to continue to heavily scrutinize the advice lawyers give their clients. Federal law enforcers get inspiration from their past successes, according to Funk. He says there's no reason to believe they 'will shy away from their consistent practice of seeking to leverage their enforcement programs by targeting those legal and accounting professionals they consider failed gatekeepers.'"

Partner T. Markus Funk, a former federal prosecutor, was featured in CNBC's "American Greed" series special "Mob Money: Murders and Acquisitions." Markus discussed, among other things, the "Operation Family Secrets" case, which stands as the most extensive mob-murder prosecution in the US and resulted in Markus and the team receiving the US Department of Justice's highest trial performance distinction.

Colorado Law Week previewed a panel on the new SEC whistleblower bounty rules that will be moderated by T. Markus Funk. The panel will include the SEC's Regional Director, the head of the Fraud Section of the Colorado US Attorney's Office and IHS General Counsel Sean Radcliffe.

T. Markus Funk and Caryn L. Trombino's article "Is The Government Listening" was selected for publication in Richard L. Cassin's Be My Guest: Byline Posts From the FCPA Blog (2011)

Colorado Law Week features Judge's endorsement of Perkins' argument that lawyer who filed class action suits against client Westwood Colleges and made arguably defamatory statements about Westwood cannot rely on the litigation privilege: "[T]he [litigation] privilege does not extend to remarks lawyers make on the courthouse steps, or anywhere else outside the court proceeding, said Markus Funk, a Perkins Coie partner who has consulted on the case. “Simply because you are an attorney who filed a lawsuit does not convey to you carte blanche permission to exit the courthouse and utter defamatory statements about the defendant,” Funk said. “The lesson is that, although the law renders statements made in the context of litigation non-actionable, counsel who exceed the boundaries of what constitute  ‘litiga­tion’ do so at their own peril.”

In January 2011, Bloomberg Law Reports published T. Markus Funk's Another Landmark Year: 2010 FCPA Year-In-Review and Enforcement Trends for 2011.  In May, the Bloomberg editors selected this article for inclusion and re-publication in its Bloomberg Law Quarterly.

"T. Markus Funk, a white collar partner at Perkins Coie, said the new rules may also make companies more inclined to come forward to the SEC when confronted with internal wrongdoing. 'An increase in tips breeds an increase in self-reporting,' he said. 'If a problem is widely known within a company, that’s an additional reason to come forward rather than wait for the ax to drop.'"

The ABA Criminal Justice Section's "Leadership Connections"  highlighted the Global Anti-Corruption Task Force which Partner Markus Funk co-chairs, noted that the Task Force's website within two months of its launch has already been featured on over 5,000 other websites.

Both Nightline and Fresh Air ran double segments examining the landmark 130-witness, 3-month racketeering trial for which the Attorney General presented Markus the US Department of Justice's highest trial distinction. The fourth book on the case is a Top 15 New York Times Best Seller.

The article describes Funk as a "high-profile former federal prosecutor now working in Denver [at Perkins Coie]," and extensively quotes him on the Department of Justice's novel application of "anticipatory obstruction of justice" (18 USC Section 1519) in the context of a recent Chicago "honey laundering" indictment.

The ABA Global Anti-Corruption Task Force, co-chaired by Funk, is launching a new website "by practitioner and for practitioners."  Law Week Colorado profiled both the Task Force and the website.

The influential Main Justice website featured an in-depth article on the soon-to-be-launched ABA Global Anti-Corruption Task Force website.  Markus Funk is the Task Force's National Co-Chair, and was quoted extensively for the piece.

Markus Funk, a Perkins Coie Partner, was interviewed by the American Medical News concerning his take on the latest developments  and trends in the government's fight against health care fraud.   The American Medical News is the leading trade publication in the health care sector, as well as the official news source of the American Medical Association.

Perkins Coie Partner, Markus Funk was quoted throughout an article published in InsideCounsel on Tuesday February, 01.  The article, "U.S. FCPA Enforcement Receives International Praise," written by Steven Anderson, on the continuing effort to tackle foreign bribery by the Foreign Corrupt Practices Act (FCPA).  The article discusses the incredible increase in cases over the last several years. "In ’05, which was considered the banner year at that time, the FCPA folks prosecuted five individuals and collected something like $16 million," stated Funk "And then you contrast that with 2010, where if you look at the top eight cases alone, they collected more than $1.5 billion—that’s with a B."  Such dramatic increases are often met with criticism, particularly when they cross international borders, but this is one area where the world seems to be squarely behind the hardline U.S. stance. In October 2010, the Organization for Economic Cooperation and Development (OECD) issued a glowing assessment on the state of U.S. anti-corruption enforcement. "The U.S. obviously is the world leader in this department," says Funk. "The U.S. historically has been responsible for 70 percent of the world’s foreign anti-bribery prosecution, second place being the U.K. with a little bit over 4 percent. So the U.S. is a world leader—it’s the poster child for robust foreign anti-corruption enforcement efforts."

"[I]mportant new book" . . . "fascinating overview" . . . "builds a fascinating case" . . . "well-reasoned criticism" . . . " For all of these reasons, T. Markus Funk‘s Victims’ Rights and Advocacy at the International Criminal Court is a valuable read and resource for those who care about international justice."
- Prof. Juliet Sorensen, Book Review, Northwestern University School of Law's Journal of Criminal Law & Criminology.

ABC 7 News "I-Team" investigative report features T. Markus Funk

The American Bar Association has invited Perkins Coie Partner T. Markus Funk to join its Litigation magazine editorial board. Funk will advise on the editorial direction of the magazine, which is considered to be the preeminent journal in the field. Published four times a year, Litigation offers practice information on common problems and interests for the lawyers who try cases and the judges who decide them. All members of the bar's Litigation Section received the publication.

T. Markus Funk was quoted in articles titled, "What's in a mob nickname?  What's it to you?"

Markus Funk was interviewed on ABC7 news.

The Bureau of National Affairs (BNA), one of the World's leading publisher of print and electronic law-related news and information, has added T. Markus Funk, a partner in Perkins Coie’s Litigation practice and a member of the firm’s Investigations & White Collar Defense group, to its newly formed Criminal Law Reporter Advisory Board.  As a Board Member, Markus will, among other things, critique publication content, contribute analysis, and identify significant legal developments and trends.   

The FCPA Professor Blog features a Q&A with T. Markus Funk on the global reach of the Dodd-Frank whistleblower bounty provisions.

"Among the growing number of publications on the emerging legal status of victims in the international criminal justice system, this book is, to this reviewer’s best knowledge, the first to provide an in-depth analysis of the role and impact of victims and their advocates on the proceedings before the International Criminal Court (‘ICC’ or ‘the Court’). . . . [B]ecause of its clearness, pragmatism and facile structure, it is easy to imagine Funk’s book becoming very soon a ‘must-have’ on the desks of practitioners working on victims’ participation and victims’ rights at the international level."

Markus Funk was interviewed by Fox News Chicago about evidence revealed during the landmark "Family Secrets" mob-murder trial concerning an alleged mob bookmaker and loan shark. View video.

Markus Funk commented in an article titled, "A Special Report on Gambling." 

As those who have gone through investigations into allegations of board member wrongdoing can attest, the process can be exceptionally costly both financially, as well as emotionally.  Perkins Partner T. Markus Funk and Ciber, Inc. General Counsel Sean Radcliffe point out that, with a bit of foresight and preparation, the duration and toxicity of the experience can be drastically limited, and the ultimate reliability of the resulting findings and recommendations notably enhanced.

T. Markus Funk and USDOJ’s Andrew S. Boutros co-authored a chapter examining the growing phenomenon of “carbon copy prosecutions” (occurring when a prosecution in Country A is mirrored by a virtually identical prosecution in Country B, C, etc.).  The rise in carbon copy prosecutions is particularly notable in the context of the Foreign Corrupt Practices Act.

Supply chain compliance is on the government’s enforcement radar like never before. If the recent Executive Order on Trafficking in Government Contracts and final SEC Conflict Minerals Rules were not notice enough, the Department of Justice’s (DOJ’s) February 20, 2013 announcement of headline-grabbing charges against the two largest domestic honey processing companies eliminates any doubt that companies must carefully examine the effectiveness of their existing supply chain compliance programs.

T. Markus Funk and partner J. Cabou analyze the Chicago US Attorney’s Office’s February 20, 2013’s record-breaking anti-dumping and food fraud case.

The article examines the California Transparency in Supply Chains Act’s oft-confused website homage disclosure requirements.

Partner T. Markus Funk and Counsel Michael Sink examine the rise in the DOJ’s enforcement of the U.S. Travel Act to punish commercial bribery, including cases involving conduct that largely occurs overseas.

Partner T. Markus Funk and associate Elizabeth M. Banzhoff explore the new but growing phenomenon of “carbon-copy prosecutions”— successive, duplicative prosecutions by multiple countries arising out of the same common nucleus of operative acts.

In this article, Denver partner T. Markus Funk and associate Elizabeth M. Banzhoff predict key areas that will garner attention from compliance professionals in 2013, from the implementation of new regulations on federal contractors in March to the onset of required compliance with the SEC’s conflict minerals rules on January 1.

The article, co-authored by T. Markus Funk and Elizabeth Banzhoff, examines the possibility that USDOJ may begin filing FCPA cases in the Easter District of Virginia’s legendary “rocket docket.”

The article, co-authored by partner T. Markus Funk and associate Elizabeth M. Banzhoff, explores key aspects of the latest compliance regulations affecting businesses today and suggest basic steps that they recommend companies involved in foreign business take to avoid supply chain and other compliance problems.

Against a rapidly-shifting anti-trafficking backdrop, this article examines the potential impact of a pair of powerful, little-known (and almost never associated) statutes—18 U.S.C. § 545 (prohibiting certain categories of smuggling) and 19 U.S.C. § 1307 (prohibiting importation of products made by or through forced labor).

This article argues that the milestone Executive Order against trafficking in government contracting will have an immediate and significant impact on the more than 300,000 companies and organizations doing business (and who want to continue doing business) with the U.S. government, as well as on the hundreds of thousands of companies around the world that supply and otherwise provide services to these direct government contractors.

On November 14, 2012, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) issued their long-anticipated Resource Guide regarding the agencies’ enforcement of the Foreign Corrupt Practices Act (FCPA).

Denver Partner T. Markus Funk and colleagues Paul O. Hirose and Elizabeth M. Banzhoff survey today’s key compliance challenges - from the recently-signed Executive Order on strengthening protections against trafficking in persons in federal contracts, the Business Transparency in Trafficking and Slavery Act, and the Securities and Exchange Commission’s rules on conflict minerals, to perennial compliance ‘‘hot topics’’ such as the Foreign Corrupt Practices Act, U.S. Travel Act, U.K. Bribery Act, and carbon copy prosecutions - point out that a small number of “risk aggregators” are responsible for the greatest risk exposure, and argue that compliance professionals, to be effective, increasingly must break out of their narrow subject-matter expertise.

In this article, Pravin Rao, Lee Stein, Markus Funk, Bridget Minder, Caryn Trombino, Gina LaMonica, and Amy Chang analyzed the DOJ and SEC's new guidance on the Foreign Corrupt Practices Act (FCPA). The authors discussed that the long-anticipated guidance provided helpful clarifications and hypothetical case studies for corporate counsel, and yet is not binding on courts or even the agencies themselves. The article cautioned that corporate counsel remain cognizant that the guidance may change, perhaps even dramatically.

When the largest single purchaser of goods and services in the world — the U.S. government — puts its weight behind something, companies and organizations take notice. In their article, Partner T. Markus Funk and Navigant’s Mikhail Reider-Gordon point out that, on Sept. 25, the government announced in no uncertain terms that taxpayer dollars used for government contracting were no longer to support the global scourge of human trafficking.

Whether “Corporate Social Responsibility” (CSR) is a new phrase to your company or is something you have observed and worked on for years, these are perilous times indeed for companies with large, complex, global supply chains.

T. Markus Funk argues that the milestone Executive Order Against Human Trafficking in Federal Contracts will have an immediate and significant impact on the more than 300,000 companies and organizations doing business (and who want to continue doing business) with the U.S. government, as well as on the hundreds of thousands of companies around the world that supply and otherwise provide services to these direct government contractors. Businesses must come to grips with this new regulatory reality or risk severe business disruptions ... or worse.

Although there may be differences in opinion over the efficacy of the groundbreaking recent Executive Order’s anti-trafficking requirements, there can be little doubt that they will have an immediate and significant impact on the over 300,000 companies and organizations doing business (and who want to continue doing business) with the world’s largest purchaser or goods and services, namely, the U.S. government.

On Sept. 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting. This article deconstructs the Executive Order and highlights the areas of greatest relevance to the business and legal community.

On September 25, 2012, President Obama signed a groundbreaking Executive Order designed to strengthen protections against trafficking in persons in federal contracting.

Co-Authored with AUSA Andrew S. Boutros
This article examines this growing - but still largely under-recognized - international phenomenon of “carbon copy” prosecutions.  A country’s incentive to vindicate its own laws is not insubstantial, especially when a company or individual has already admitted, in a foreign proceeding, to having violated local law. The days of one-dimensional government investigations appear to be over. Duplicative, serial enforcement actions are now part and parcel of the enforcement landscape, despite a healthy ongoing debate over the need for, and fairness of, serial enforcements. Our prediction is that, as globalization makes the world smaller, what we call carbon copy prosecutions will increase in frequency, size, scope, and force.

In the morning hours of Aug. 22, law firms, boardrooms and compliance professionals around the globe were humming with anticipation (or perhaps more accurately, laboring under a chilly frisson of dread). The cause for this collective anxiety was the SEC’s much-anticipated – and much-delayed – announcement of the Dodd-Frank Act’s final disclosure and reporting rules concerning “conflict minerals.” This article, by Partner T. Markus Funk, examines the contours of the new rules from a retail perspective, and tries to answer the question of whether one man’s well-intentioned humanitarian effort has once again become another’s costly export of moral imperatives for difficult-to-achieve public policy objectives.

The Securities and Exchange Commission recently adopted final disclosure and reporting rules as mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act requiring certain public companies to disclose on a new Form SD their use of conflict minerals originating in the Democratic Republic of the Congo (the DRC) or an adjoining country.

Whatever one’s position on the public policy wisdom of the announced final rules, it is now clear that auditing complex supply chains and vetting difficult-to-control vendors, often located worlds away, has become the new corporate imperative. In the morning hours of Aug. 22, the Commission held its highly anticipated public meeting to announce its final Conflict Minerals Rules pursuant to Dodd-Frank Section 1502. Perkins Coie Partners Jean-Jacques Cabou and T. Markus Funk deconstruct the complex new rules, and provide practical "what next" advice for potentially impacted businesses.

In recent years, Germany has assumed a leading position in the investigation and prosecution of foreign bribery cases.  In their article, "Germany's Increasingly Robust Anti-Corruption Efforts," T. Markus Funk and co-author Jess A. Dance examine the legal and enforcement developments fueling Germany's anti-bribery push.

Those working in today's in-house law departments or supervising global supply chains and third-party business partners have become sensitive to the significant dangers posed by not complying with the U.S. Foreign Corrupt Practices Act (“FCPA”).  The well-publicized recent events surrounding Wal-Mart's FCPA woes have only raised already-elevated anxiety levels.

Funk and Clark''s SEC Whistleblower Article Published in the ABA's The State of Criminal Justice 2012.

Earlier this year, Washington state legislators unanimously passed the nation's first criminal law requiring age verification for commercial sexual services advertisements depicting minors. The landmark law's goals are laudable, but its broad reach has some on-line service providers and traditional publishers concerned. For example, on-line service providers that allow users to post content and images on their sites, including on social networking sites, dating sites, discussion forums, blogs and chat rooms, could now face criminal exposure, even if they have absolutely no interest in placing, or permitting the placement of, such ads.

Partners Jean-Jacques "J" Cabou, Jason Day, and T. Markus Funk examine the SEC's pending "conflict minerals" rules.  The authors provide a useful flow chart illustrating the proposed rules' logic and flow, and offer specific suggestions for how companies can get ahead of the curve and gauge what impact the anticipated rules are likely to have on their operations and compliance functions.

In their article, Partners T. Markus Funk and Al Gidari, together with Associate Nathan Christensen, discuss the nation's first-of-its-kind criminal law requiring online service providers and traditional publishers to conduct in-person age verification for certain adult service advertisements.  Although the law's objectives are unquestionably laudable, the authors examine the significant risks to which the law's broad reach exposes otherwise innocent OSP's and other publishers, and discuss the potential legal obstacles standing in the way of the law's enforcement.

T. Markus Funk's article, "Marketing Opportunity to Business Imperative:  How Yesterday's 'Dolphin-Safe' Tuna Became Today's Child, Human Trafficking, and Slave Labor-Free Product," examines what companies can do to comply with the landmark California Transparency in Supply Chains Act, as well as its pending federal analog.

In the wake of the recent negative publicity deluge, including a segment on a national newsmagazine show, alleging labor violations including the use of child labor, safety violations and unfair pay practices, late last week Apple released a third-party report detailing problems and proposed solutions at one of its largest suppliers.

As this article discusses, a fresh wave of legislation designed to foster and promote what its backers alternatively describe as responsible corporate citizenship or corporate social responsibility is cresting on U.S. businesses’ shores - and this time the aim is to combat the world’s most serious forms of labor exploitation.  The requirements of substantial due diligence and disclosures, and the corresponding threat of negative publicity, shareholder and consumer protests and boycotts, and Federal Trade Commission Action for insufficient compliance, are all reasons that the vetting of global supply chains for evidence of human trafficking, forced labor, slavery, and child labor is current hot topic in corporate boardrooms and compliance offices.

A fresh wave of legislation designed to foster and promote what its backers describe as responsible corporate citizenship/corporate social responsibility is cresting on US businesses shores—and this time the aim is to combat the world’s most serious forms of labor exploitation.  Effective January 1, 2012, the California Transparency in Supply Chains Act requires qualifying companies to detail and publicly disclose the nature and scope of their efforts to eradicate human trafficking, slavery, child labor, and forced labor from their worldwide supply chains.  This flow chart deconstructs the logic and flow of the California Act's detailed disclosure requirements.

On the heels of the California Supply Chains Act is the "Business Transparency on Trafficking and Slavery Act" introduced in Congress on August 1, 2011. If the Act's Congressional sponsors prevail, it will nationalize (and expand) the California Act's requirements.  The pending federal Act, indeed, picks up the California Act's leitmotiv: "[T]he United States is the world's largest importer, and in the twenty-first century, investors, consumers, and broader civil society increasingly demand information about the human rights impact of products in the United States market."  The requirements of the pending Business Transparency on Trafficking and Slavery Act are summarized here.

Funk's article uses practical decision trees and charts to deconstruct the operation of the FCPA, Travel Act, and UK Bribery Act.

Partners T. Markus Funk and Douglas L. Sawyer in their article discuss the pitfalls of the FCPA and emerging US Travel Act anti-bribery provisions in the IP context.

"In terms of going back to basics, the FCPA/Travel Act Intellectual Property decision tree uniquely traces out the key questions to be answered in any potential corruption case, and sets forth the flow, form and logic of FCPA and the Travel Act analysis [from the perspective of the Intellectual Property practitioner]."

"Simmering throughout 2011, the robust FCPA reform debate can now be divided into a number of distinct drafting and public policy battle fields. . . .  We examine (1) the core criminal law theory assumptions and (2) some of the public policy objectives driving the debate, including whether reforming the FCPA is advisable on public policy grounds, and the extent to which the position that foreign governments will view even modest FCPA reform as a signal to abandon wholesale their domestic anti-corruption efforts are justified."

Funk and Trombino in their article break down the form, function, and flow of the FCPA and the UK Bribery Act.

Rowman & Littlefield

T. Markus Funk and M. Bridget Minder author "Bribery of Foreign Officials: The FCPA in 2011 and Beyond: Is Targeted FCPA Reform Really the “Wrong Thing at the Wrong Time”? in the Bloomberg Law Reports. The in-depth piece not only summarizes 2011 enforcement trends, but also addresses the arguments raised against the growing call for targeted FCPA reform.

This chart examines the flow and logic of the FCPA/Travel Act's anti-bribery provisions through the lens of the Intellectual Property practitioner.

Perkins Coie Partner and ABA Global Anti-Corruption Task Force Co-Chair T. Markus Funk and associate Jess A. Dance compiled a chart comparing and contrasting the FCPA to the UK Bribery Act, German Anti-Bribery Laws, Chinese Anti-Bribery Laws, and India's Prevention of Corruption Act.

Perkins Coie Partner and ABA Global Anti-Corruption Task Force Co-ChairT. Markus Funk has drafted a novel and practical UK Bribery Act decision tree/"cheat sheet" sketching out the key analytical steps in evaluating a potential bribery situation and illuminating the Act's logic, function, and flow.

Perkins Coie Partner and ABA Global Anti-Corruption Task Force Co-Chair T. Markus Funk has drafted a very handy decision tree sketching out the key analytical steps in evaluating a potential bribery situation.

Facing the combined challenges of extreme poverty, high levels of crime and public corruption, and an outdated system of laws, Haitian lawyers grapple daily with problems unfamiliar to most of the world’s attorneys. Authored by Denver Partners T. Markus Funk and Douglas Sawyer, as well as Denver Associate Zane Gilmer, and produced in collaboration with the ABA Section of Litigation's Haiti Task Force and the International Senior Lawyers Project, the first-of-its-kind Haiti Trail Skills Manual provides the talented and enthusiastic Haitian attorneys of all backgrounds and areas of specialization with a broad, practical summary of the range of practical approaches geared to providing Haitian lawyers with the basic skills most useful in effectively representing a client’s interests.

Article examines the performance of the world's first permanent judicial body with the explicit mission of "bringing to justice the world's most notorious mass-criminals."

Practitioners in the exploding field of corporate anticorruption compliance need little convincing that today we find ourselves in what Assistant Attorney General Lanny Breuer aptly characterized as ‘‘a new age of [significantly ramped-up U.S. and foreign anticorruption] enforcement.’’ Funk and Clark in their article (1) discuss how the SEC’s much-anticipated 2011 whistleblower rules fall within this enforcement paradigm, and (2) examine practical steps companies can take to ensure that their compliance efforts are effective and user-friendly, motivating potential employee-whistleblowers to report perceived problems internally first.

This feature article from the current edition of The Champion examines an increasingly important obstruction provision -- 18 USC 1519 -- which is potentially at play in virtually all criminal cases, because it criminalizes "anticipatory" obstruction of justice (that is, attempts to hide or destroy evidence even if no federal investigation is on the horizon at the time of the allegedly obstructive conduct).

The ABA invited Markus to author Chapter 5 of its The State of Criminal Justice, examining the Foreign Corrupt Practices Act.

On May 25, 2011, in a 3-2 vote, the U.S. Securities and Exchange Commission (“SEC”) adopted its final rules (“Rules”), as required under Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act” or the “Act”). The Rules implement the SEC’s hotly anticipated new whistleblower bounty program that rewards individuals who provide the SEC with information leading to successful enforcement actions that exceed $1 million in monetary sanctions. Eligible whistleblowers can earn a payout of 10% to 30% of any monetary sanctions collected because of the tipster's information.

Chicago may be known as the “Second City,” but Markus Funk contends that, in the white-collar world, the U.S. attorney’s office there announced a blockbuster case last summer that is peerless. That case, United States v. Wolff, stands as the nation’s largest ever anti-dumping and food fraud criminal prosecution.  Prosecutors’ aggressive use of the U.S. Code’s most powerful — and underappreciated — obstruction-of-justice statute promises to leave an  enduring legal imprint.

In most recent FCPA cases, liability has attached indirectly, through the misconduct of foreign third parties, such as agents, intermediaries, consultants, joint venture partners, suppliers, distributors, local counsel, private equity companies and franchisees. As we move into 2011, all signals indicate such liability will be an increasing target, says T. Markus Funk.

The UN Security Council recently referred the embattled Gadhafi regime to the International Criminal Court for investigation into its possible involvement in atrocity crimes.  Markus examines what the ICC's track record to date may tell us about the likely outcome of this historic Security Council referral.

Markus Funk, together with co-author Caryn Trombino, conducts a critical comparative analysis of recent efforts to evaluate the  effectiveness of US anti-corruption/Foreign Corrupt Practices Act ("FCPA") efforts.  Specifically, Funk and Trombino compare and contrast the reports issued by the Organization for Economic Cooperation and Development ("OECD"), Transparency International, and the US Chamber of Commerce.

Many companies might be surprised to learn that the difficult to control acts of their foreign agents, intermediaries, consultants, joint venture partners, suppliers, distributors and even outside counsel, private equity portfolio companies and franchisees can result in—and, in fact, have resulted in—potentially devastating civil and criminal Foreign Corrupt Practices Act (FCPA) liability to the principal or parent company . . . even absent any evidence of the company’s actual knowledge of this misconduct. And all indications are that the government will ramp up its reliance on such third-party liability as we move into 2011 and beyond. This update examines the growing threat of third-party liability and how clients can, through precautionary steps tailored to the particular circumstances of the company, effectively fend off the potentially catastrophic effects of third-party liability.
Note: A full-length version of this Update appeared on January 14, 2011, in BNA's White Collar Crime Report (6 WCR 33)

2010 was without question the FCPA's break-out year.  In his Bloomberg retrospective, Markus discusses (1) the major 2010 developments leading to this record-breaking performance, and (2) the key trends promising that 2011 will set a new standard in FCPA enforcement.

American Bar Association Global Anti-Corruption Initiatives Task Force
Complying with the November 1, 2010, Sentencing Guidelines amendments both prevents liability through deterrence and rapid response, and mitigates the impact any misconduct may have. In this article, Markus discussed how to reap these benefits in four simple steps: Review, Revise, Hire, and Submit.  

In this blog post, T. Markus Funk and Caryn Trombino examine recent criticism aimed at U.S. global anti-corruption efforts, as both the OECD and the U.S. Chamber of Commerce have offered specific proposals to amend or improve the FCPA. These proposals, as well as the recent drop in U.S. ranking on Transparency International's Corruption Perception Index, suggest that U.S. global anti-corruption efforts are still a work in progress.

After surveying the OECD's "Phase 3" review of U.S. global anti-corruption efforts, Markus concludes that U.S. diplomatic pressure, buoyed by the OECD's encouraging findings, signals an era of continued domestic and international efforts to stem the tide of global corruption. Companies that fail to appropriately adapt to this new enforcement reality risk exposure not only to massive fines and financial penalties, but also to stiffening criminal sanctions. 

Effective November 1, 2010, the U.S. Sentencing Commission has changed how fines for companies are calculated under the U.S. Sentencing Guidelines. The inquiry has now shifted away from the (mis)conduct of the company’s high-level personnel and toward the effectiveness of the company’s compliance and ethics program.

Invited to be a Guest Blogger, Markus Funk dissects the findings of the highly-anticipated October 21, 2010, Organization for Economic Cooperation and Development (OECD) "Phase 3" report evaluating global U.S. anti-corruption efforts.

Invited to be a Guest Blogger, Markus Funk dissects the findings of the highly-anticipated October 21, 2010, Organization for Economic Cooperation and Development (OECD) "Phase 3" report evaluating global U.S. anti-corruption efforts.

Invited to be a Guest Blogger, Markus Funk dissects the findings of the highly-anticipated October 21, 2010, Organization for Economic Cooperation and Development (OECD) "Phase 3" report evaluating global U.S. anti-corruption efforts.

Invited to be a Guest Blogger, Markus Funk dissects the findings of the highly-anticipated October 21, 2010, Organization for Economic Cooperation and Development (OECD) "Phase 3" report evaluating global U.S. anti-corruption efforts.

The OECD has criticized other signatory nations for not living up to their anti-bribery obligations, and in its just released report also identifies certain discrete areas for U.S. improvement. But the bottom line message is that the U.S. government is a leader in anti-corruption enforcement.

Invited to be a Guest Blogger, Markus Funk dissects the findings of the highly-anticipated October 21, 2010, Organization for Economic Cooperation and Development (OECD) "Phase 3" report evaluating global U.S. anti-corruption efforts.

In this article, T. Markus Funk examines the historic charges recently lodged in United States v. Alexander Wolff, et al., the largest food fraud and anti-dumping criminal prosecution in U.S. history. The Government set the stage for what it undoubtedly hopes will be a convincing public test of the prosecutive powers of Section 1519’s powerful, but surprisingly little-understood, obstruction of justice provision, providing a glimpse of what could well be the next pivotal battlefield in the Government’s stepped-up war against white collar offenders.

The U.S. has introduced the world to its newest weapon in this anti-bribery fight, namely, the Dodd-Frank Act’s scheme of enhancing law enforcement’s evidence-gathering capacity via substantial "finder’s fees" for successful whistleblowers. In this article, Markus Funk argues that the U.S., in so doing, has once again raised the international anti-corruption enforcement bar. Moreover, considering the U.S.’s leadership position among signatory states to the Organization for Economic Co-Operation and Development’s (OECD’s) 1997 Anti-Bribery Convention, the Dodd-Frank Act is likely to spawn analogues in other parts of the world.

In this article, T. Markus Funk concludes that the historic Dodd-Frank Wall Street Reform and Consumer Protection Act’s potentially huge financial rewards for Foreign Corrupt Practices Act (“FCPA”) whistleblowers, combined with enhanced protections against retaliation, provide a major boost to the U.S. Government’s already ramped-up anti-corruption efforts.  The emergence of this fortified program, coupled with the Government’s increasingly intensified efforts to aggressively prosecute FCPA violators, heralds an era of substantially increased FCPA prosecutions.  These developments serve to further highlight the vital role that robust and updated FCPA and anti-corruption compliance programs, including investigations work plans which seek to anticipate potential problem areas by being tailored to match individual business models, must play for companies with operations outside the U.S.

First-of-its-kind book concerning the international Criminal Court. Former U.S. Ambassador-at-large for War Crimes, David Scheffer, reviewed book as "must-read" and "ground-breaking."

Remains most-cited legal authority in Kosovo annotated code.