Interview With T. Markus Funk - From Oxford To The FCPA

by Thomas Fox

TMF Headshot_Federal BuildingjpgEd. Note-We continue with our interview series of thought leaders in the compliance space. Today, we visit with T. Markus Funk, partner at Perkins Coie.

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

My father is a US-born travel photographer who worked for, among other publications, National Geographic, while my mother was a German-born psychologist. Because my father used Europe as his professional point of departure, I grew up near Koenigstein, Germany, attended Frankfurt International School, and spent school breaks in the US. One of the benefits of this trans-national upbringing is that I enjoy German-American dual nationality.

As a kid/teenager, I spent most of my time on the junior tennis and skiing circuits.

2.         Where did you go to college?

I spent my undergraduate years at the University of Illinois, moved back to the Chicago to attend Northwestern University School of Law, and during the years between undergrad and law school toiled away as a “ski tech” and Motel 8 late-night clerk in Steamboat Springs, Colorado. Later, I pursued my PhD in law at Oxford University.

3.         You started your career as a law clerk to Eighth Circuit Judge Morris S. Arnold and teaching law at Oxford University. So how and why did you come to join the DOJ?

I was very lucky in that my first “real” job out of law school was as a Lecturer of Law at Oxford University, teaching criminal and comparative law.

Although I thoroughly enjoyed the academic life, I noticed that most of my peers – like me – had never spent a day in court, never prosecuted or defended a single client, and candidly viewed the “practice of law” with some derision.

Seeing this lack of real-world experience as an opportunity to differentiate myself from my academic peers and very much desiring to make a difference, I applied to US Attorney’s Offices around the US.   My goal was to gain some first-hand experience with the justice system, and to then return to teaching law in the UK, stay on as a prosecutor, perhaps do something else.

My top choice was to become a federal prosecutor in my law school home of Chicago. So when then-US Attorney Scott Lassar was kind enough to offer me the post, I immediately accepted.

As it turned out, I so enjoyed public service, working with great agents and fellow prosecutors, and working for US Attorneys Lassar and Patrick J. Fitzgerald, that I never returned to the UK – I stayed on as an AUSA for 10 years. I have tried to keep a foot (or at least a toe) in the academic community by serving as a Lecturer in Law at the University of Chicago Law School and as an Adjunct at Northwestern, and by writing books and articles. That said, working with colleagues to address client concerns and figuring out practical solutions for complex legal challenges has been so rewarding that a return to academia is not in my near future.

4.         How did your work fighting corruption and helping establish the rule of law in post-conflict Kosovo in 2005-06 while detailed to the US State Department influence your thinking about the bribery and corruption?

My time in Kosovo as the USDOJ Resident Legal Advisor working for the US State Department was without question one of the most gratifying and eye-opening experiences of my professional and personal life.

We helped local prosecutors and legislators, as well as members of the international community (including international prosecutors), combat crimes such as human trafficking and counterfeiting. But more than that, my team (and, principally, Kosovo-native Dastid Pallaska, who later would go on to graduate from Yale Law School) and I had the privilege of taking a leadership position in the regional fight against bribery and public corruption.

Despite the pressing needs, few members of the international legal community active in Kosovo had spent any time in court or practiced criminal law – so there was a real thirst on the part of our local counterparts for learning not only about criminal law theory and public policy, but also to get a better understanding of how to put theory into practice by developing investigations and theories of the case, using undercovers, tracing proceeds of crime, etc. In fact, the need was so great that we wrote the Kosovo Trial Skills manual to address precisely these issues through the framework of the country’s then-brand-new criminal procedure laws. (The book, in fact, became the Kosovo Supreme Court’s most-cited-to source.).

One thing we also quickly learned is that, no matter how sharp the differences between the Kosovar and Serbian, Macedonian, and Montenegrin politicians might be, organized criminal groups were rarely, if ever, encumbered by ethnic squabbles and were at all times able to effectively and efficiently work together. They took advantage of the gaps in the local laws and their enforcement, and in a very intentional and ruthless manner exploited systemic weaknesses for their own financial gain.

But as a federal prosecutor out of Chicago who’s colleagues convicted, among others, Governor Ryan (and later Governor Blagojevich), I was always weary of “talking down” to our local counterparts or implying that we in the US or Europe are somehow always far ahead of our Balkan colleagues when it came to getting public corruption under control. In fact, the methods employed by companies and individuals engaging in public and commercial bribery in Kosovo were mainly on all fours with the way (corrupt) things were done in Chicago.

By educating the ruling political class on the negative impact of bribery and public corruption, we were able to introduce anti-corruption legislation, set up law enforcement task forces, and train financial institutions on how to identify suspicious activities and respond properly. This in-the-trenches view of FCPA and Travel Act compliance now helps me in the work that I do, and informs my thinking as I advise clients, deal with US Government officials, and interact with foreign law enforcement authorities.

In short,   it is one thing to, as a lawyer, learn about the challenges of dealing with foreign vendors and manufacturers through the birds-eye view provided by books, articles, and court rulings. That said, there is no substitute for having been a first-hand witness to the significant challenges US companies face when they are operating in high-corruption environments.

5.         You were the first to charge and prosecute a Deputy US Marshal (John Thomas Ambrose) with public corruption after he leaked highly-confidential information about the Witness Security (“WitSec”) program to the Chicago mob. What impact did that case have on your thinking?

The prosecution of John Ambrose was one of the most challenging chapters of my prosecutorial career. I don’t want to get into too many specifics. The realization that a sworn Deputy US Marshall was violating his oath by in real-time leaking extremely sensitive information about the whereabouts of what at the time was the program’s most sensitive cooperating witness to Chicago mob bosses seemed like the stuff of a bad crime novel. That this could happen in the 2000s demonstrated that complacency is the enemy. Adapting this realization to my compliance and internal investigations work, making assumptions about what “most likely happened” makes complete sense; but prejudging a situation by assuming that what likely happened is what really happened can have disastrous consequences for the client.

6.         You also prosecuted the “Operation Family Secrets” Mob case. National Public Radio in 2013 described the case as “one of the most important criminal investigations . . . in American history.” How did that experience impact your current work?

One of the reasons the public and press paid so much attention to this 5-year investigation and 3-month trial of the Chicago mob (a/k/a/ “Chicago Outfit”) was that the murders and characters involved – including “Lefty” Rosenthal and the Spilotro brothers – were featured in Martin Scorsese’s movie “Casino.” But to me the opportunity to work with senior prosecutors like John Scully and Mitch Mars, and exceptional FBI Agents like Mike Maseth, and vindicating the rights of scores of victims who were forced to wait decades for justice, was a once-in-a-lifetime experience.

The trail of murders, mayhem, and victims these organized criminals left behind was something I had only experienced in the context of war criminals – and war criminals are rarely glamorized in the way that some of our mob defendants were. Bringing these men to justice was the true capstone to my prosecutorial career, and the team’s receipt of the USDOJ’s highest trial performance award, the U.S. Attorney General’s Award (“John Marshall Award for Trial Excellence”), was something I continue to be very proud of.

In terms of lessons learned, nervousness and emotion are part and parcel of high-stakes litigation. But not letting these emotions overtake you, and turning these feelings into a positive, is critical.

7.         At your firm of Perkins Coie, you helped establish and co-chair the firm’s Corporate Social Responsibility and Supply Chain practice area. What type of work does this entail?

In 2011, my colleague J. Cabou and I set up Perkins Coie’s Corporate Social Responsibility and Supply Chain Compliance Practice – the first such dedicated practice among the AmLaw 100.

One of my personal goals in focusing on this practice was to leverage my first-hand experience fighting corruption, bribery, and trafficking in the Balkans and elsewhere; my background as a federal prosecutor who handled many white collar cases in Chicago; and my familiarity with the subject matter as an academic who studied these areas. J and I saw this as a developing practice area, and as an opportunity to bring our very unique experiences and expertise to bear on complex issues that, in the main, not of the type that private practitioners encounter or understand.

By way of illustration, at the time we set up the practice many wondered what “CSR” and supply chain issues had to do with corporate compliance and investigations. Today, with ground-breaking laws and regulations like the Executive Order Against Trafficking in Supply Chains, the California Transparency in Supply Chains Act, and the SEC’s Conflict Minerals rules, and with the ramped-up enforcement of the FCPA and US Travel Act, you can barely turn a page in the National Law Journal, New York Times, or Wall Street Journal without reading about a governmental investigation, advocacy group protest, or consumer boycott focusing on real and alleged violations of such laws.

Having participated in raids trafficking operations in the Balkans, drafted anti-corruption and forced labor legislation, prosecuted organized criminals, and written Oxford University Press books and other think-pieces on enforcement and legislative trends in these areas, I felt like this was a natural practice area to help pioneer. That fact that today many firms of all sizes are seizing on the growth of this practice area and are beginning to market their services only further serves to confirm that clients are experiencing very real needs and are looking for counsel who truly understand the practical concerns these novel legal issues implicate, and the pragmatic legal guidance they call for.

8.         You were one of the lawyers involved in the Esquenazi appeal, challenging the constitutionality of the FCPA? Can you describe that experience, both from authoring the briefs to the oral argument.

We took on Joel Esquenazi’s appeal pro bono because we recognized the public importance of the federal courts of appeal for the first time weighing in on the USDOJ’s expansive (and, in the view of many, over-expansive) definition of what qualifies as a “foreign official.” The prevailing “we will know it when we see it” enforcement approach has troubled observers and companies for years, and can be difficult to reconcile with common conceptions of fair notice and due process.

My colleague Mike Sink and I, joined by co-defendant Carlos Rodriguez’s counsel, advanced these arguments in our briefing to the Eleventh Circuit, as well as during our October 3, 2013, oral arguments. We have every reason to believe that the time lag between argument and ruling is further evidence that the Court is taking this issue very seriously, and we continue to look forward to receiving a favorable ruling that will provide the global business community with the clarity they have long-since asked for, but that no federal court of appeal has ever weighed in on.

Markus Funk can be reached at

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.

© Thomas Fox, Compliance Evangelist | Attorney Advertising

Written by:

Thomas Fox

Compliance Evangelist on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. 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. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the 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 shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this 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 the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.