International Legal Highlights - July 2019

McDermott Will & Emery


Paul M. Thompson | Tony Maida | Rebecca C. Martin | Michael W. Peregrine | Sarah E. Walters | Michael S. Stanek

In recent months, the US Department of Justice (DOJ) has issued important guidance for global companies on corporate compliance programs and the Foreign Corrupt Practices Act (FCPA) self-disclosure program. Taken together, this recent DOJ guidance reinforces that companies will receive significant benefit from the US government when they develop robust compliance programs that will both prevent and detect corruption – and when potential FCPA violations are promptly identified, remediated, and reported to the DOJ. Even in circumstances where misconduct is pervasive or involves upper management, a company’s exemplary actions maynonetheless result in a prosecution declination or cooperation credit.

Compliance Program Guidance

On April 30, 2019, the DOJ issued new guidance to prosecutors, drawn from a number of existing departmental sources offering varying degrees of specificity, on evaluating corporate compliance programs. This guidance updates and answers questions posed in previous guidance issued in February 2017, to reflect DOJ’s evolving view of compliance program effectiveness.

Boards and management should make use of recent expanded guidance from the US Department of Justice to ensure that their compliance programs are considered “effective” if and when an investigation arises. Companies should affirmatively answer three fundamental questions in evaluating a compliance program: 1) Is the compliance program well designed? 2) Is the program being implemented effectively and in good faith? 3) Does the compliance program work in practice?

The DOJ details specific factors that prosecutors should consider when investigating corporations and other organizations in the Justice Manual’s “Principles of Federal Prosecution of Business Organizations.” These factors include “the adequacy and effectiveness of the corporation’s compliance program” at both the time of the offense and the time of the charging decision, and remedial efforts to “implement an adequate and effective corporate-compliance program or to improve an existing one.” DOJ’s 2017 guidance offered some general questions to help prosecutors make such an assessment—although it did not provide prosecutors with corresponding answers on compliance program effectiveness.

The “effectiveness” of compliance programs also currently appears in other DOJ policy memoranda and federal sentencing guidelines, but without substantial guidance as to what prosecutors should deem effective. Specifically, Sections 8B2.1, 8C2.5(f) and 82C.8(11) of the US Sentencing Guidelines provide that consideration should be given to whether a corporation had an effective compliance program in place at the time of misconduct when calculating the appropriate fine. DOJ’s memorandum on the selection of compliance monitors (the Benczkowski Memo) also instructs prosecutors to consider, at the time of resolution, whether the corporation has made “significant investments in, and improvements to, its corporate compliance program and internal controls systems,” and whether “remedial improvements to the compliance program” have been tested to demonstrate that the program would prevent or detect similar misconduct.

DOJ’s new expanded guidance provides more specific factors for federal prosecutors to consider when determining whether a company deserves settlement credit through a demonstrated commitment to compliance. While broadly mirroring information in the Justice Manual, past DOJ memoranda and guidance, the federal sentencing guidelines, and many DOJ Deferred Prosecution Agreements and Non-Prosecution Agreements, the updated guidance provides more detail to assist prosecutors in making informed decisions about whether a corporation’s compliance program was effective at the time of the offense and is effective at the time of a charging decision or resolution. Just as importantly, the updated guidance allows corporate boards and executives to make a similar assessment and to address any shortcomings in their organization’s compliance program.

DOJ acknowledges that there is no “rigid formula” when it comes to assessing compliance programs. A company should tailor its compliance program to its specific risk profile. In doing so, however, compliance officers, board members and corporate executives should keep in mind that prosecutors will ask three “fundamental” questions in making an assessment of a company’s compliance program:

1. Is the corporation’s compliance program well designed?

DOJ takes the position that a well-designed compliance program depends on a risk assessment: has the company “identified, assessed, and defined its risk profile?” In turn, does the program devote appropriate scrutiny and resources to the range of possible risks? Prosecutors will look to whether a compliance program is appropriately designed to detect the particular types of misconduct that are likely to occur in the company’s line of business, regulatory landscape and business environment. Well-designed compliance programs also should be periodically updated, often through additional risk assessments.

Under the DOJ guidance, prosecutors will next look to a company’s compliance policies and procedures, including a code of conduct that sets forth the company’s commitment to compliance with relevant laws. The creation of well-designed policies should involve the right people—including appropriate seniority and relevant business units. Such policies should be drafted to be comprehensive, accessible and reinforced through internal controls systems.

The DOJ guidance also expects appropriately tailored training and communications, with a focus on training employees in control functions and high-risk areas. Training and guidance should be accessible and available in appropriate languages. Employees should know the company’s position concerning misconduct. Similarly, employees should have clear, accessible and confidential reporting channels for reporting misconduct—and there should be appropriate processes for investigating such reporting. Such mechanisms are considered “probative” in assessing whether a company has established mechanisms for detecting and preventing misconduct.

The DOJ guidance specifically calls out third-party management and M&A as risk areas where DOJ expects companies to have well-developed programs to assess and address potential compliance issues.

2. Is the program applied earnestly and in good faith? In other words, is the program implemented effectively?

DOJ next looks to whether a company has demonstrated a commitment to the compliance program by senior and middle management. To the government, this is perhaps one of the most important factors in assessing the effectiveness of a compliance program. Prosecutors will ask whether senior management, including the board, has “clearly articulated the company’s ethical standards, conveyed and disseminated them in clear and unambiguous terms, and demonstrated rigorous adherence by example.” Prosecutors will then evaluate whether middle management has reinforced those standards.

DOJ will also ask whether a compliance program has appropriate autonomy and resources, focusing on whether there is sufficient seniority and authority within the organization, sufficient resources and staff to undertake the necessary work of a well-designed compliance program (including internal audit), and sufficient autonomy from management, including access to the board or audit committee.

DOJ will also look to incentives and disciplinary measures taken in response to compliance and non-compliance, respectively. It is critical that appropriate human resources processes are developed and consistently applied.

3. Does the corporation’s compliance program work in practice?

Effective compliance programs cannot exist only “on paper.” They must work in practice. Prosecutors will closely review whether a program was working when misconduct was identified, especially in circumstances where misconduct was not immediately detected. While Section 8B2.1(a) of the US Sentencing Guidelines makes clear that misconduct in and of itself does not mean that a program is ineffective, the DOJ guidance indicates that prosecutors should view identification of misconduct by a compliance program as a “strong indicator that the compliance program was working effectively.” Prosecutors will consider whether and how the company detected potential misconduct, what resources were in place to investigate the potential misconduct, and the “nature and thoroughness of the company’s remedial efforts.”

Prosecutors will evaluate whether a compliance program continued to improve and evolve through ongoing risk assessment, periodic testing and review. Internal audit should conduct periodic compliance audits based on identified risks, compliance controls should be tested, and gap assessments should be undertaken from time to time.

Finally, companies must undertake analysis and remediation of identified underlying misconduct. Root cause analyses are a key component of determining the appropriate scope and extent of remediation when compliance violations are identified.

Self-Disclosure Guidance

At the American Bar Association’s Annual National Institute on White Collar Crime on March 8, 2019, Assistant Attorney General Brian Benczkowski clarified the US Department of Justice (DOJ) self-disclosure program under the FCPA Corporate Enforcement Policy. The policy includes a presumption that the government will decline to prosecute business organizations that meet the DOJ’s standards of “voluntary self-disclosure,” “full cooperation,” and “timely and appropriate remediation.” However, the policy explains that this presumption can be negated if “aggravating circumstances” exist involving the nature of the offender or the seriousness of the offense.

In providing insight on how the DOJ is applying this policy, Benczkowski explained that prompt investigation and self-disclosure of FCPA issues may allow companies to overcome aggravating factors that otherwise could prevent the DOJ from declining prosecution. He highlighted that two recent DOJ declinations “make clear that aggravating factors like high-level executive involvement in the misconduct will not necessarily preclude a declination when the company’s actions are otherwise exemplary.”

Companies have wrestled with whether to self-report potential violations of the FCPA when aggravating circumstances are present. The FCPA corporate enforcement policy states that aggravating factors include, but are not limited to, the following:

· Involvement of company executive management in the misconduct

· A significant profit to the company from the misconduct

· Pervasiveness of the misconduct within the company

If the DOJ determines that aggravating circumstances do exist warranting criminal prosecution for a company that nevertheless has voluntarily disclosed the wrongdoing, fully cooperated, and timely and appropriately remediated, the policy (1) requires the government to recommend to the sentencing judge a 50 percent reduction off the low end of the US Sentencing Guidelines fine range (except in the case of a criminal recidivist), and (2) generally will not require the appointment of an independent monitor if the company has implemented an effective compliance program.

Benczkowski’s speech provides important clarity for management and boards. While misconduct in one recent DOJ investigation “reached the highest levels of the company,” the DOJ declined prosecution because that company had voluntarily self-disclosed conduct within two weeks of when the company’s board learned of it. The rationale for the declination, according to Benczkowski, was that the swift disclosure allowed the DOJ to bring charges against the company’s former president and former chief legal officer in connection to their alleged involvement in the conduct.

Benczkowski also clarified the DOJ’s approach to crediting self-disclosures in the M&A context. When companies uncover potential FCPA violations during a corporate merger or acquisition, the DOJ will provide credit in those circumstances. Applying the self-disclosure policy “to the M&A context avoids chilling acquisition activity by law-abiding companies, who might otherwise walk away from worthwhile investments due to the risk of FCPA enforcement,” Benczkowski said. According to Benczkowski, the DOJ does not want “the good corporate actors to cede the field to higher-risk entities that may only perpetuate illegal conduct.”


While the DOJ continues to incentivize companies to identify culpable individuals while moving away from punishing corporate entities and shareholders for those individual actions, companies must affirmatively build effective compliance programs and report misconduct to accrue credit with the government. Time is of the essence in identifying who may be involved in potential FCPA violations. In instances where senior management is implicated, the board should be informed immediately to assess whether self-disclosure is appropriate. Management and boards should not be deterred by potential aggravating circumstances or factors when considering whether to self-report misconduct. The DOJ may still decline prosecution if the company’s actions in responding to the conduct are “exemplary.” When misconduct is identified post-acquisition, acquiring companies should promptly respond, remediate and consider whether to self-report. Self-disclosure credit still may apply in these circumstances.


Romain Perray

On 21 January 2019, the CNIL, the French data protection authority, fined Google LLC (“Google”) € 50,000,000, for two types of infringements: (i) violations of the obligations of transparency and information as required by Articles 12 and 13 of the General Data Protection Regulation (“GDPR”) in relation to Google’ system of information provision to Android users; and (ii) a violation of the obligation to have a legal basis as required by Article 6 GDPR in relation to its advert personalisation services.

Although the significance of the fine imposed has received a great deal of attention, in our view, four other issues of this decision are likely to have more important implications for the Japanese companies operating in Europe. We will thus first address those four issues below before the issue of the fine.

1. Procedure

There are four procedural particularities in this case.

First, the investigation was initiated following complaints lodged by two non-profit organizations, Max Schrems’ None of Your Business and the French advocacy group La Quadrature du Net, in accordance with Article 80 GDPR. This indicates that if a well-known not-for-profit organization lodges a basic but sufficiently argued claim, it might be sufficient for a data protection authority to launch an investigation. Also, the success of the collective complaint of this case may encourage data subjects to utilize a collective complaint and/or redress mechanism provided for under Article 80 GDPR.

Second, the investigation was only carried out online and no on-site inspection was conducted. A data protection authority may now easily investigate digital businesses even if their offices are located outside its geographical jurisdiction. There is therefore an elevated risk of investigations by data protection authorities for global digital businesses.

Third, the CNIL’s investigation focused on the privacy policy and the terms of service; however, it also extended to an assessment of the use of Android and Google Account, digital tools. Once an investigation starts, its scope can be expanded to areas indirectly related to the subject-matter of the investigation.

Lastly, the CNIL dismissed Google’s claim that its right to a fair trial guaranteed under Article 6 of the European Convention on Human Rights was infringed due to the lack of English translations of the fining decision and the opinion of the rapporteur and due to the insufficient time limits to provide observations. If the CNIL intends to address a non-French entity in its infringement decision, as it did in this case (the addressee of the decision was Google LLC), it should be more lenient with regard to the time limits to provide observations given that the CNIL provides all documents in French.

2. Main Establishment

Google claimed that its “main establishment” is Google Ireland Limited and the lead supervisory authority is thus the Irish data protection authority and that the CNIL lacked jurisdiction. Under the One-Stop Shop mechanism introduced by the GDPR, the supervisory authority of the main establishment is competent to act as lead supervisory authority for the cross-border data processing. This mechanism was created with a view to reducing administrative burden for entities carrying out cross-border data processing activities and to avoiding inconsistent decisions from multiple data protection authorities.

The CNIL rejected Google’s claim and concluded that it was competent to handle this matter in the absence of Google’s main establishment in the EU. Relying on the definition of “main establishment” under Article 4(16) GDPR, the CNIL found that Google Ireland Limited did not have any decision making power concerning the purposes and means of data processing carried out in the context of the creation of a Google Account during the configuration of a mobile phone using Android. Google Ireland Limited’s role was more or less limited to the conclusion of contracts with European clients.

This is the first time that an EU Member State data protection authority has ruled on the concept of “main establishment”. Thus, some may try to argue that this is an isolated case and the other EU data protection authorities will not necessarily follow the CNIL approach. However, they most likely will do so in view of the fact that there seems to be consensus with regard to the CNIL’s conclusion. As a matter of fact, when the CNIL informed the other EU data protection authorities of its position concerning the issue of the main establishment to launch the cooperation mechanism under the GDPR, none of them opposed it.

According to the CNIL’s approach, for an EU entity to be qualified as the main establishment in a matter concerning a digital tool or IT system, it must have an active role in the choice and operation of that digital tool or IT system. However, Japanese companies often centralize IT systems at their headquarters in Japan. As a result, it will be difficult for them to claim that one of their EU subsidiaries is the EU main establishment when an IT system is under investigation.

Without the main establishment located in the EU, there is a risk that multinational companies may be subject to multiple fines by different data protection authorities in case the cooperation mechanism does not function properly. The Uber cases are a good illustration of this risk, although they pre-date the application of the GDPR. The American parent company (not its European subsidiaries) was fined € 435,000 by the British authority, € 600,000 by the Dutch authority and € 400,000 by the French authority respectively over the same data breach incident. The total fine amounted to € 1,435,000.

3. Transparency Principle

As shown by the fact that the majority of the sanctions issued in the last few months concerned security failures, the data security issue has gained attention as the primary risk associated with data processing. In such a context, the CNIL’s decision reminds us that the other data protection principles are as essential as the data security and their breaches can entail significant consequences.

In particular, the CNIL made it clear that transparency must not be neglected by any data controller even when complex multiple processing operations are involved. In the Google case, the CNIL found that Google failed to achieve a level of transparency required under Articles 12 and 13 GDPR. In accordance with Article 12 GDPR, when a data controller provides a privacy notice or communicates to data subjects, it must do so “in a concise, transparent, intelligible and easily accessible form, using clear and plain language”.

However, for the CNIL, the privacy notice provided by Google to data subjects to fulfil its obligation under Article 13 GDPR was excessively scattered across several documents, each of which contained buttons and links for complementary information. The users were required to carefully go through a great deal of information to identify relevant information. Due to this complex structure, certain information was not easily accessible.

The CNIL also found that Google did not provide information in an intelligible and clear manner. Google can have an in-depth knowledge of users by combining different types of data from different sources, such as geolocalisation and viewed contents. Such combination represents a highly intrusive nature, which requires a higher level of the “intelligible” and “clear” nature of the information provided. However, the information provided by Google to the users did not allow them to sufficiently understand the consequences of the data processing concerning them. In particular, the description of the purposes did not enable the users to measure the extent of the processing and of the potential intrusion into their private life. Further, the description of the collected data was particularly imprecise and incomplete. Accordingly, the CNIL concluded that the information Google provided lacked intelligible and clear characteristics.

4. Consent

In line with Article 6 GDPR, Google relied on the users’ “consent” to process their personal data for the purposes of personalized advertising. In this regard, according to Article 4(11) GDPR, “consent” means “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.”

However, for the same reasons as those for the lack of transparency (excessively scattered information), the CNIL found that the users were not sufficiently informed. Moreover, the CNIL found that consent was not unambiguous since the account preference settings were pre-ticked by default and there was basically no affirmative action by the users to consent to ad personalization. Further, the CNIL found that consent was not specific because users were obliged to accept all data processing operations for different purposes as a whole. Accordingly, the CNIL concluded that consent on the basis of which Google processed personal data was not valid.

5. Fine

By the Google decision, the CNIL has made the most known risk related to the GDPR, i.e. a heavy financial penalty, a reality. Until then, the risk had remained a theoretical one. The amount of the fines given after the GDPR became applicable on 25 May 2018 remained reasonable. For instance, the fines imposed by the Baden-Württemberg Land authority and the Portuguese authority for GDPR infringements in 2018 were € 20,000 and € 400,000.

The CNIL’s Google decision has crossed a threshold. The fine amount is substantial and it has significantly increased relative to previous fines. In July 2017, CNIL imposed a fine of € 100,000 on Darty, a major retailer of household electrical appliances. In June 2018, two weeks after the GDPR became applicable, the CNIL fined Optical Center € 250,000.

In Google, in order to justify such an increase, the CNIL primarily based its argumentation on the extent of the infringements. It rejected Google’s argument that the violations only concerned 7% of the Android users, i.e. the users creating a new Google account while configuring a new device using the Android OS.The CNIL considered that the violations affected all the Android users on the French market as they were in a similar situation.

6. Comment

Companies in most industries gather data concerning their users (or customers) from multiple sources, such as contracts, user accounts, web browsing, and geolocalisation. The data thus accumulated allows those companies to have an in-depth knowledge of users’ behavior, including their habits, opinions, and social interactions. For the companies, such knowledge is valuable in offering more targeted advertisements or services. However, from the users’ point of view, the significant amount of data collected by the companies and the complexity of its processing represent a high risk of intrusion into their private life. As such, it is essential that the companies enable the users to understand their processing of their personal data in a transparent manner.

The question is how to achieve the requisite level of transparency when providing a privacy notice in relation to complex and often multiple data processing operations. As the CNIL acknowledges, presenting all information concerning complex data processing in one document may be counterproductive. In such a case, a layered approach is encouraged but the layers should not require five or six actions on the part of the user to have a comprehensive view of the information on the data processing. In particular, the preference setting of the user’s account should occur quickly and at the latest in the second document. As to the content, the information must enable the users to understand how their personal data is used and how they can control the scope and manner of such use in a simple manner.

Without a transparent privacy notice, consent also becomes invalid due to the lack of the “informed” nature. Similarly, consent should not be obtained collectively in one action for several processing purposes. For each purpose, there should be a blank (as opposed to pre-ticked) box so that the user can decide whether to accept or refuse processing with respect to each purpose and not with respect to all purposes or a combination of different purposes.

Bearing these points in mind, the companies will need to verify and if necessary, reconsider their ways of presenting privacy notices and of obtaining consent taking into account the users’ perspectives. Without it, and without the EU main establishment, they may face fines in several jurisdictions that they may have never regarded as important from a commercial point of view.


David J. Levine | Raymond Paretzky | Louise Aberg

The United States isn’t the only country bolstering its protections against foreign investment that may compromise national security.

US legislation recently strengthened the law that authorises the President, through the Committee on Foreign Investment in the United States (CFIUS), to review and possibly block foreign investments if CFIUS finds they adversely affect US national security.

Other governments are following suit, adopting or enhancing CFIUS-like regimes to review foreign direct investment (FDI) in businesses deemed to involve sensitive or critical industries, technology, or infrastructure.

In the European Union, a regulation laying out an FDI framework for EU Member States was adopted on 5 March 2019. The regulation sets out basic procedural requirements that Member States with an FDI system will need to follow with respect to transparency, timeframes, protection of confidential information, and judicial redress.

The European Commission will also be able to issue an opinion to Member States on FDI likely to affect projects of EU interest. This new framework will coexist with the national regimes.

In December 2018, Germany revised its FDI regime to lower the thresholds applicable to certain industries.

It had already tightened its regime in 2017 by adding critical infrastructure, such as energy and telecommunications, to its scope of review.

At the end of 2018, France adopted a decree extending the breadth of its screening process to new sensitive areas, such as research and development in cybersecurity, artificial intelligence, and robotics.

Reacting to Chinese investment in the Hinkley Point nuclear project, in 2018 the UK Government published a white paper to review FDI in sectors that pose national security risks, such as advanced technologies, dual-use technologies, and national infrastructure.

FDI regulatory requirements vary widely in the Asia- Pacific region and in the Middle East.

Australia has a protectionist approach, and focuses its review on acquisitions of Australian real estate, agricultural land and agribusiness, and investments in sensitive industries, such as media, telecommunications, transport, and defence.

In China, foreign investment laws designate industries as “encouraged,” “restricted,” or “prohibited.” FDI is prohibited, for example, in the media, natural resources, and military sectors.

In Japan, the government will review FDI in a variety of sensitive industries, including military, aerospace, and nuclear energy, as well as in critical infrastructure, such as electricity, gas, communications, and broadcasting.

Israel announced in early 2019 that it would adopt an FDI screening system, notably to counter Chinese investment in technology companies.

The global trend in many countries towards more restrictive control of FDI creates new regulatory obstacles for companies engaged in cross-border deals. Foreign investors should carefully consider reporting and review requirements and procedures in advance of any such transaction. If an FDI filing is required or advisable, foreign investors should engage authorities as early as possible, as FDI review procedures may impact timing and other strategic elements of cross- border transactions.


Paul M. Thompson | Tony Maida | Rebecca C. Martin | Michael W. Peregrine | Sarah E. Walters | Michael S. Stanek





取締役会及び経営陣は、調査が発生した場合に、自社のコンプライアンスプログラムが確実に「有効」とみなされるようにするために、DOJから最近出された拡充されたガイダンスを活用するべきである。企業は、コンプライアンスプログラムを評価する際に、3つの基本的な質問に「はい」と答えるべきである。 1) コンプライアンスプログラムは適切に設計されているか? 2) プログラムは効果的にそして誠意をもって実施されているか? 3) コンプライアンスプログラムは実際に機能しているか?


コンプライアンスプログラムの「有効性」は、現在他のDOJのポリシーメモランダム及び連邦量刑ガイドラインにも現れているが、検察官が何を有効とみなすかについての実質的な指針は伴っていない。具体的には、米国の量刑ガイドラインのセクション8B2.1, 8C2.5(f) と 82C.8(11)は、適切な罰金を計算するに際して、不正行為時に企業が効果的なコンプライアンスプログラムを実施していたかどうかを考慮する必要があると規定している。コンプライアンスモニターの選択についてのDOJのメモランダム(Benczkowski メモ)も、検察官に対し、起訴決定時に、企業が「自社のコンプライアンスプログラム及び内部統制システムに重大な投資と改善を行った」かどうか、プログラムが類似の不正行為を防止又は検出することを実証するために「コンプライアンスプログラムの是正的改善」がテストされたかどうか、を考慮するように指示している。



1. 企業のコンプライアンスプログラムは適切に設計されているか?









3. コンプライアンスプログラムは実際に機能しているか?





2019年3月8日に開催された米国法曹協会のホワイトカラー犯罪についての年次学会において、反トラスト局長であるBrian Benczkowskiは、DOJのFCPA企業実施ポリシー(Corporate Enforcement Policy)に基づく自主的開示プログラムにつき説明した ポリシーには、政府が、「自主的な開示」、「全面的な協力」、「適時・適切な是正」というDOJの基準を満たす企業組織について、訴追免除するという推定が含まれている。しかし、当該ポリシーは、 違反者の性質や違反の深刻さに関し 「加重事由」 が存在する場合には、この推定が否定される可能性があると説明している。

DOJがこのポリシーをどのように適用しているかについての洞察を提供するにあたって、Benczkowskiは、企業はFCPA問題の迅速な調査と自主的開示により、本来であればDOJによる訴追免除を妨げる可能性のある加重事由を克服することができるかもしれないと説明した。同氏は、近時の2つのDOJの訴追免除は、 「不正行為における上級幹部の関与といった加重事由があっても、その他の点において企業の行為が模範的である場合には、当該加重事由が必ずしも訴追免除を排除するわけではない」ということを明確にしていると強調した。


· 不正行為への企業経営陣の関与

· 不正行為から企業へもたらされた重大な利益

· 企業内での不正行為の広汎性

企業が不正行為の自主的な開示を行い、全面的な協力をし、適時・適切な是正を行ったにもかかわらず、当該企業に対する刑事訴追を必要とする加重事由が存在するとDOJが判断する場合、当該ポリシーは、 (1)政府に対し、 判決を下す裁判官に、米国判決ガイドラインの罰金範囲の下限から50%の減額を行うよう推奨することを求めており、 また(2) もし企業が効果的なコンプライアンスプログラムを実施している場合には、一般的に独立モニターの選任を求めないこととしている。

Benczkowskiのスピーチは、経営陣と取締役会にとって重要な明瞭さを提供する。ある最近のDOJの調査における不正行為は 「企業の最高レベルに達した」 が、同社が取締役会がそれを知ってから2週間以内に自主的開示を任意で行ったため、DOJは訴追免除を行った。Benczkowskiによれば、訴追免除の根拠は、迅速な開示により、DOJが当該行為に関与したとされる同社の元社長及び元最高法務責任者に対して告発することが可能になったということであった。

また、Benczkowskiは、M&Aの文脈における、自主的開示を評価するDOJのアプローチについても説明した。企業の合併や買収の際に企業がFCPA違反の恐れのある行為を発見した場合、DOJは減免を与えるつもりである。自主的開示ポリシーを 「M&Aの文脈に適用することは、そうでなければ、FCPA執行のリスクのために価値ある投資から手を引いてしまうであろう遵法企業による買収行為を萎縮させてしまうことを回避することができる」とBenczkowski は述べた。Benczkowski によれば、DOJは、 「善良な企業組織が、違法行為を永続させるだけかもしれない高リスクの組織に、その分野を譲るということ」を望んでいない。



EURO フランス個人データ保護局によるグーグルに対する5000万ユーロのGDPR罰金

Romain Perray

2019年1月21日、フランスの個人データ保護当局であるCNILは、Google LLC(グーグル)に対し、以下の2つの種類の侵害を理由に、5000万ユーロの罰金を科した。 (i) グーグルのアンドロイドユーザーに対する情報提供システムに関する、一般データ保護規則(GDPR)第12条及び第13条により求められる透明性及び情報の義務についての違反、並びに (ii) 広告パーソナライゼーションサービスに関する、GDPR 第6条により求められる法的根拠を持つ義務についての違反。


1. 手続


第一に、GDPR第80条に従って、2つの非営利団体である、マックス・シュレムスのNone of Your Business及びフランスの活動家グループLa Quadrture du Netによる異議申し立ての後、調査が開始された。これは、著名な非営利団体が、基本的ではあるが十分に議論されている異議申立てを行った場合に、データ保護当局が調査を開始するのに十分であるという可能性を示している。また、本件の集団的な異議申立ての成功は、データ主体がGDPR第80条に基づいて規定されている集団的な異議申立て及び/又は救済メカニズムを活用することを奨励する可能性がある。



最後に、CNILは、罰金の決定及び報告者の意見についての英訳を欠いていること、並びに回答を提供するための時間制限が不十分であることによって、欧州人権条約6(3)に基づいて保証されている公正な裁判の権利が侵害されたとのグーグルの主張を棄却した。もしCNILが、その侵害決定において非フランス法人を名宛人として意図している場合、本件がそうであるが(決定の名宛人はGoogle LLCである)、CNILが全ての文書をフランス語で提供していることを考慮すれば、回答提供の時間制限についてより寛大であるべきである。

2. 主たる拠点

グーグルは、その「主たる拠点」がGoogle Ireland Limited にあり、したがって主任監督当局はアイルランドのデータ保護当局であること、及びCNILは管轄権を欠いていることを主張した。GDPRによって導入されたワンストップショップのメカニズムの下では、主たる拠点の監督当局が、国境を越えたデータ処理のための主任監督当局として活動することができる。このメカニズムは、国境を越えたデータ処理活動を実施する事業体の管理上の負担を軽減するとともに、複数のデータ保護当局による整合しない判断を回避することを目的として設けられた。

CNILは、グーグルの主張を拒絶し、EUにグーグルの主たる拠点がない場合であっても、CNILは本件の問題を取り扱うことができると判断した。GDPR第4条(16)の下での「主たる拠点」の定義に依拠して、CNILは、アンドロイドを使用した携帯電話の環境設定内のグーグルアカウント作成の文脈において実施されるデータ処理の目的及び手段に関して、Google Ireland Limitedは意思決定権限を有していないと判示した。Google Ireland Limitedの役割は、ヨーロッパの顧客との契約締結にほぼ限定されていた。



EUに主たる拠点がないと、協力メカニズムが適切に機能しないとき、多国籍企業が異なるデータ保護当局による複数の罰金の対象になる危険性がある。GDPRの発効前の事例であるが、ウーバーのケースはこのリスクを良く示す例である。米国の親会社(ヨーロッパの子会社ではない)は、同一のデータ侵害事件について、英国当局から43万5000ユーロ、オランダ当局から 60万ユーロ、フランス当局から40万ユーロ、それぞれ罰金を科された。合計の罰金は、143万5000ユーロに及んだ。

3. 透明性ポリシー





4. 同意



5. 罰金




6. コメント






David J. Levine | Raymond Paretzky | Louise Aberg












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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
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Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
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JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

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Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

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