Interview With FCPA Litigator David Simon

by Thomas Fox

Ed. Note-this post continues my efforts to write about thought leaders in the area of anti-corruption compliance. Today, I post an interview with David Simon, a partner in the Milwaukee office of Foley and Larder. David not only practices in the area of FCPA defense but writes and consistently articulates innovative approaches to FCPA compliance.

Where did you grow up and what were your interests as a youngster?

I grew up in the suburbs of Milwaukee.  As a kid, I was pretty focused on sports and music — talented in neither, but an enthusiastic consumer of both.  I come from a long line of crazed Green Bay Packers fans.  One of my earliest memories involves Sunday dinner at my Grandmother’s house – squeezed in during halftime, dessert on our laps in front of the TV.  I’m pretty sure I have attended, watched, or listened to something approaching 90% of all Packers games played during my lifetime.

Where did you go to college and what experiences there led to your current profession?

I graduated from the University of Wisconsin (Madison).  It was a great fit for me – a big, diverse place where students are given tremendous freedom to chart their own educational course.  My liberal arts education provided a great foundation for a career as a lawyer.  I was taught the key skills for a litigator — how to think critically and how to express my thoughts in writing and orally.

During college, I was heavily involved in a student organization called AIESEC (a French acronym that stands for the International Association of Students in Economics and Commerce).  AIESEC is a fantastic organization that runs a global internship exchange program.  Our chapter was charged with raising internships with Wisconsin companies for foreign students.  In turn, we got to send our members abroad to work in similar internships.  AIESEC gave me the international bug – my first opportunity for international travel (a global conference in Norway), a Polish roommate, and an internship in Germany.  The path to my FCPA practice started with AIESEC.

Before joining Foley Lardner, you clerked for a federal judge. How did that experience help you as a lawyer and what did you learn from it?

I was lucky to have the opportunity to clerk for U.S. District Judge Robert Warren (now deceased).  He was a great man who exemplified fairness, decency, respect, and duty.  I can’t imagine a better place to start a legal career.  Besides learning how cases are litigated and tried (and what works and –  perhaps more importantly –  what doesn’t work), I learned so much about the human aspect of the law and the right way to treat people.

Could you describe your current practice?

My practice is focused principally on two core services:  First, I  represent companies (and, from time to time, individuals) that find themselves under scrutiny by the government or are in a situation that could lead to scrutiny by the government.  This includes internal investigations, the defense of enforcement proceedings, and, sometimes, litigation.  Second, I help companies stay out of the government’s cross-hairs by counseling on specific issues and by helping them build and implement effective compliance programs.

From a subject-matter perspective, I focus heavily on the FCPA and other anti-corruption laws. That is a little unusual for a Wisconsin resident who practices principally out of Foley & Lardner’s Milwaukee office.  It was an interesting path to this practice:  As a relatively junior lawyer, I had the good fortune of working with Martin Weinstein, one of the deans of the FCPA bar, during his first years out of the government and while he was starting his practice at Foley.  So as an associate learning how to be a government enforcement lawyer, I had the opportunity to work on a number of FCPA matters with one of the leading experts in the field.  This was well before the explosion in FCPA enforcement.  I always say we were FCPA before FCPA was cool.   We’ve been able to continue that tradition at Foley, which has been really great.

My practice is not 100% FCPA, though.  I also do enforcement, investigation, counseling and compliance work in the fields of antitrust, health care, and the False Claims Act.

You were one of the defense counsel you presented oral arguments in the Esquazi case in the 11th Circuit last fall. Can you describe how you prepared and what was your experience in handling a federal court of appeals oral argument.

It was a great privilege to represent Carlos Rodriguez in the appeal of his criminal conviction. I hope we will achieve a positive result for him on appeal.

I am very grateful to Foley for investing really significant resources in this pro bono appeal.  Our representation of Carlos was a major team effort, with more than ten different lawyers contributing in various ways.  My colleagues Pam Johnston, Ken Winer, Lauren Valiente and Jamie Circincione made really significant contributions to the development of our FCPA “foreign official” arguments.  (We argued that an “instrumentality” of a foreign government must be limited to entities that are actually part of the government.)

It was a great experience having the opportunity to participate in the development of this important aspect of the law.  That is an unfortunately rare opportunity, since there has been so little actual litigation in the FCPA context.  It is a really good thing that there have been more litigated issues in the last couple of years, and we were glad to be able to join in the debate.

The oral argument itself was a terrific experience.  One never feels more like a lawyer than when arguing a case in a federal appellate court.  We had a great panel that was fully engaged and was clearly aware of the importance of the issues presented.  And I had the opportunity to follow Markus Funk, who did a great job representing co-defendant Joel Esquinazi, making similar, though slightly different, arguments on the “foreign official” issue.  What more could you ask for?  (Other than a reversal and remand!)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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