An effective compliance program requires that companies review and improve their compliance programs. A company should regularly review and test its controls, and address potential weaknesses in its compliance program. The Justice Department and the SEC have encouraged companies to conduct regular tests and reviews to create a sustainable compliance program. Companies should design and implement a proactive evaluation program to ensure that their compliance...

Congress enacted the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), which was intended to modernize and strengthen the CFIUS process.  FIRRMA was incorporated into the National Defense Authorization Act which as passed and signed into law. FIRRMA expands CFIUS jurisdiction to include four new types of transactions, expands the definition of “critical technology,” requires CFIUS to respond to written notices, extends the time...

Washington, D.C. is more than just the nation’s capital.  Companies have to pay attention and develop contacts and relationships in Washington, D.C. given the importance of federal agencies, Congress and of course, the White House.  I often inform clients that Washington, D.C. provides a second round of due process for disputes that may occur in domestic or foreign markets. One of the more important institutions...

The Justice Department’s FCPA Corporate Enforcement Policy was announced in November 2017 with much fanfare – it was the culmination of a step-by-step process beginning with the FCPA Pilot Program.  The FCPA Corporate Enforcement Policy enshrined the potential benefit of a presumption of a declination if a corporation: (1) voluntarily disclosed the misconduct; (2) implemented timely and appropriate remediation; and (3) fully cooperated with the...

Tom Fox, Matt Kelly, Jonathan Armstrong, Jay Rosen and myself recently recorded a new episode of Everything Compliance — Five-Year Retrospective Edition.   You can listen to it here. Everything Compliance is the only roundtable podcast in compliance, with four of the top compliance practitioners around. This week the gang returns to its four focused topics on its Five-Year Retrospective Edition. Matt Kelly considers how did...

The scope of our country’s opioid epidemic is devastating.  From 1999 to 2017, more than 700,000 people have died from a drug overdose.  Two-thirds of these deaths involved an opioid.  On average, 195 Americans dies every day from an opioid overdose.  These numbers are tragic and mind-boggling. In response, federal enforcement efforts have primarily focused on criminal prosecutions, but there have also been significant civil...

Despite the controversial impact of the Supreme Court’s Escobar decision, the Justice Department’s False Claims Act prosecutions and settlements are continuing at a consistent rate – heading towards another multi-billion dollar year of FCA recoveries. Some examples of these prosecutions and settlements will demonstrate my overall point – FCA risks are significant and healthcare providers, especially hospitals, have to devote time and attention to oversight...

The Justice Department has continued to pursue healthcare fraud and bribery criminal prosecutions.  Healthcare fraud remains a high priority for criminal enforcement. With the pervasive problem of fraud and bribery, the healthcare industry continues to suffer from corrupt officials and physicians.  Government regulation of the healthcare industry provides many opportunities and incentives for industry participants to cheat the system. In a recent case, the Justice...

This week I am running a series of posts on healthcare fraud enforcement and the False Claims Act. With all the controversy swirling around the Mueller investigation and prosecutions, the Justice Department continues its aggressive pursuit of healthcare fraud.  The Justice Department’s machinery and resources are producing a steady stream of False Claims Act cases and settlements. Just like other enforcement areas, companies in the...

The attorney-client privilege is an invaluable tool that is used to encourage frank and open communications between a client and an attorney.  Clients rely on the privilege when communicating with attorneys.  It is important to remember that the attorney-client privilege applies only to communications between a client and an attorney for the purpose of seeking legal advice. A company’s reliance on the attorney-client privilege provides...