David W. Simon leads Foley’s Government Enforcement Defense & Investigations International Practice, representing clients particularly in the areas of the Foreign Corrupt Practices Act (FCPA), government enforcement, and the conduct of internal investigations to preempt or mitigate actions taken by the U.S. Department of Justice (DOJ), Securities and Exchange Commission (SEC), and other enforcement agencies. His practice focuses on (1) conducting domestic and international internal investigations, (2) successfully defending companies and senior executives in enforcement actions and litigation with the government, and (3) delivering practical regulatory advice and building compliance programs to help avoid enforcement actions in the first place. David is experienced in guiding corporate boards and company management through challenging government enforcement matters and understands that corporate compliance problems are fundamentally business problems that require business-centric solutions.
Global Problems, Global Solutions
David is a defense lawyer who is adept at assembling and leading global teams of professionals to provide solutions to the potentially catastrophic threat presented by a government enforcement action. He has substantial experience dealing with U.S. regulators, and he understands their expectations.
In the course of helping companies successfully manage crises arising outside of the United States, David has conducted investigations all over the world and has built deep relationships with top-caliber business-oriented enforcement attorneys, forensic accountants, and other professionals in virtually all economically significant countries. David is a founding director of the Concilium Global Compliance, Investigations & Enforcement Defense Network, an alliance of business crimes and compliance lawyers around the world, which provides integrated investigations, defense, and compliance solutions to cross-border problems.
FCPA and Global Anti-Bribery & Anti-Corruption Defense
The FCPA and global anti-bribery and anti-corruption laws are a major focus on David's defense, investigations, and counseling practice. David is an FCPA lawyer who has handled dozens of bribery investigations and enforcement defense actions for companies around the world and in a variety of industries. Examples of his experience as an FCPA attorney include the following:
- David led the team representing a publicly traded U.S. manufacturing company that discovered suspicious payments to an agent made by its Peru subsidiary. The investigation led to discovery of a number of additional compliance issues, including suspicious payments in China, sales to Cuba, and additional Peru bribery allegations. David helped the company navigate through the complex landscape this presented, including defending U.S. Department of Justice and U.S. Securities and Exchange Commission investigations.
- David is lead FCPA counsel for the Independent Compliance Monitor, engaged by a financial institution as mandated by its FCPA settlement agreements with the U.S. Department of Justice and U.S. Securities and Exchange Commission. In this role, he advises the organization in his review and assessment of the company’s compliance anti-bribery policies, procedures, and internal controls, and he reports to the regulators on his findings and conclusions.
- A U.S.-based, publicly traded manufacturing company received a compliance hotline report alleging that its India subsidiary had engaged a contractor that paid a bribe to facilitate permit approvals for its new factory outside of Gurgaon. David’s team conducted an internal investigation to determine what had actually happened and he developed and helped the company implement a remediation plan to manage the risks associated with the conduct.
- David and his team conduct FCPA and anti-bribery compliance due diligence for a large industrial conglomerate that regularly acquires companies based in and operating all around the world. He helps the company identify and value FCPA risks to inform purchase and valuation decisions and assists in developing compliance integration and remediation plans for newly acquired businesses.
- A U.S.-based, publicly traded manufacturer learned of cash payments made by an intermediary to government officials to obtain government contracts in Karnataka, India. David conducted an internal investigation to inform U.S. management and the board of directors of the facts on the ground and helped devise and implement a risk-mitigation plan that allowed the company to move past the event.
- David served as lead appellate FCPA counsel for Carlos Rodriguez in the landmark case U.S. v. Esquinazi, Case No. 11-15331, the first federal appeals court case to address the meaning of the FCPA’s “foreign official” element.
David is an FCPA/anti-bribery/anti-corruption authority who writes, speaks, and is quoted on hot topics in the field (and whose more informal perspectives are shared through his Twitter feed @davidsimon68). Recent thought leadership examples include:
- Podcast Guest, “The Achilles Heel of FCPA Compliance: Bribe-Paying Third Parties,” FTI Consulting Fraud Eats Strategy Podcast (April 14, 2021)
- Author, “The Impact of an Asset Purchase Transaction Structure on FCPA Risk,” Global Banking & Finance Review (August 26, 2020)
- Co-author, “Naming Bribe-Paying Third Parties Would Improve FCPA Compliance,” The Anti-Corruption Report (June 24, 2020)
- Co-author, chapter on the FCPA in Konzernstrafrecht: Handbuch für die Unternehmens - und Anwaltspraxis (December 1, 2019)
- Guest lecturer, "The Foreign Corrupt Practices Act Risks and Compliance Strategies in Mergers and Acquisitions,” Juristenes Utdanningssenter Compliance Committee, Oslo, Norway (November 7, 2018)
- Guest lecturer, “The Emerging FCPA Enforcement Paradigm,” Internationaler Strafrechtstag: Internationale Korruption – aus Sicht der Strafverteidigung hosted by the German Defense Counsel Association, Munich, Germany (April 13, 2018)
- Co-author, “Five Things to Watch for in FCPA Enforcement This Year,” Law360 (January 1, 2018)
- Quoted as a subject-matter expert in publications such as Compliance Week, The Anti-Corruption Report, Agenda, and the Wall Street Journal
Practical, Actionable Compliance Advice
To help his clients avoid compliance trouble in the first place, David provides practical, experienced-based advice and counsel and helps companies develop and implement effective corporate compliance programs. Companies choose David because his approach is to craft reasonable and pragmatic compliance solutions that can actually be implemented effectively, consistent with the expectations of the regulators but without undue disruption to the company's operations and while respecting the practical realities of their business goals.
Government Enforcement Defense
David also has extensive experience leading teams representing clients in international sanctions matters, in antitrust matters (particularly in the health care industry), and in defending False Claims Act and environmental law investigations and litigation. Recent engagements include the following:
- David represented two construction company executives who received target letters from a U.S. Attorney’s Office, indicating that the office believed the executives had participated in a fraudulent scheme involving disadvantaged business set-aside contracts with various governmental entities. David persuaded the office to decline to bring any criminal charges against the executives and negotiated a civil settlement between the United States and the company, which allowed a successor company to continue operations. The executives describe their experience with David as follows:
When our business and personal lives were unexpectedly investigated by the DOJ, we sought out the best legal representation we could find. That search led us to retaining the legal services of Dave Simon. He was a calming and confident influence as he navigated us through countless obstacles, each time achieving results that exceeded our expectations. His legal skills cleared our names and gave us back a future we thought might be slipping away.
- St. Mary’s Medical Center in Huntington, West Virginia, sought to merge with the other major hospital system in the city, Cabell Huntington Hospital. The U.S. Federal Trade Commission challenged the combination on antitrust grounds. David led the team representing St. Mary’s in the defense of the FTC investigation and enforcement action and in the negotiation of a political solution with the West Virginia Attorney General that allowed the merger to proceed.
- David defended an industrial company in a grand jury investigation into potential criminal violations of the Resource Conservation and Recovery Act and persuaded DOJ to close the investigation without bringing any changes against the company. David defended a company against felony criminal environmental charges brought by a U.S. Attorney’s Office, arising out of alleged asbestos exposure in connection with a plant refurbishment project. He negotiated a resolution that resulted in a single misdemeanor charge for the company and the dismissal of criminal charges against several current and former employees.
Extensive India Experience
David has particularly deep experience leading investigations and enforcement actions arising out of India and advising companies and their India operations on compliance with applicable laws. Through this experience, David has developed a deep understanding of India and the risks posed to companies doing business there; he is adept at developing India-specific risk mitigation strategies and navigating cross-border enforcement actions and litigation.
Sherbir Panag, of the New Delhi-based Panag & Babu, describes David’s India experience as follows:
David Simon’s understanding of India goes beyond the surface, to a deeper appreciation of its business, culture, and legal system. This depth allows his advocacy and counsel to be more grounded in the practical realities of the Indian subcontinent. Over the past decade, David has helped our clients navigate complex regulatory and commercial disputes in the United States, earning the trust of our clients, who view him as their go-to U.S. counsel. I have also had the pleasure of acting as co-counsel to FCPA internal investigations that David has led in India, and on each occasion I have been impressed by his remarkable solution-oriented approaches as well as the respect he commands from law enforcement and clients alike.
David is a thought leader with respect to India-specific compliance issues. Recent highlights include:
- Quoted, “How U.S. Companies Are Navigating the FCPA Risk in India,” BloombergQuint (India) (April 19, 2019)
- Co-author, “Anti-Bribery and FCPA Compliance Guide for U.S. Companies Doing Business in India,” Foley White Paper (2017)
- Principal contributor to a three-part video series that discusses critical anti-bribery compliance and investigations issues in India
- Co-author, “How to Prepare for the Possibility of a Dawn Raid in India,” and the follow-up piece, “A Checklist for Preparing for a Dawn Raid in India,” The Anti-Corruption Report (February 20, 2019 and April 17, 2019)
- Guest lecturer, “Conquering Corruption and Compliance Challenges in India Inc.” EY Colloquium, Gurgaon, India (September 24, 2018)
- Co-author of “How to Customize Your Compliance Program in Response to India’s Updated Anti-Corruption Legislation,” The Anti-Corruption Report (November 19, 2018)
- Co-author, “Anti-Bribery Compliance Meets Permits, Licenses and Approvals in India,” International Bar Association Anti-Corruption Committee Newsletter (November 28, 2017)
- Co-author, “Where India’s Companies Act Meets the FCPA,” Law360 (May 18, 2017)
Education and Other Experience
- Founding Director, Concilium Global Compliance, Investigations & Investigations Defense Network, December 2019-Present
- University of California – Berkeley, Boalt Hall School of Law (J.D.)
- Order of the Coif
- California Law Review
- University of Wisconsin – Madison (B.S., with honors)
- Law Clerk, Honorable Robert W. Warren, U.S. District Court for the Eastern District of Wisconsin
- Pegasus Scholar, American Inns of Court Foundation (London, UK)
David has been peer review rated as AV Preeminent®, the highest performance rating in the Martindale-Hubbell® Peer Review Ratings™ system.
David has been selected by his peers for inclusion in The Best Lawyers in America© since 2014 in the field of Criminal Defense: White-Collar Law. He was also recommended by The Legal 500 for his work in Dispute Resolution: Corporate Investigations and White-Collar Criminal Defense, and by Who’s Who Legal in the category of Business Crime Defense – Corporations.
- District of Columbia