Legal and compliance practitioners are often asked to review a set of facts and determine whether the actors will potentially violate the FCPA. A lot has been written on the vagueness or lack of clarity surrounding the FCPA. Those opinions are not very persuasive and ignore common sense, legal concepts and good faith. A legal and compliance professional knows the importance of good faith. They...
Some business people are “bad,” meaning they engage in misconduct and either feel no remorse or rationalize why their conduct is acceptable. In a company that embraces bad acting, breaking rules or cutting corners, bad actors are likely to flourish. A bad company is the breeding ground for bad actors. How do you define a “bad” company? We all know examples of bad companies that...
The Justice Department’s Antitrust Division has a long history of independence within the US Department of Justice. Antitrust enforcement was considered a unique area requiring a specialized understanding of markets and economics. In the civil enforcement area, this expertise and understanding of economics, competition and business makes sense. As a former prosecutor, the Antitrust Division’s prosecution of criminal violations is not so unique. Antitrust prosecutors...
The SEC recently filed a lengthy civil complaint against two Och-Ziff executives: Michael Cohen, who headed Och-Ziff’s European office, and Vanja Barros, an executive responsible for Africa-related transactions, charging them with participation in a massive bribery scheme in Libya, Chad, Niger, Guinea and the Democratic Republic of Congo. Last year, Och-Ziff settled with the Justice Department and the SEC, and agreed to pay fines and...
The phrase tone at the top is becoming trite. Compliance professionals use it over and over, and few people explain how to apply the concept. Speakers and webinar presenters always gloss over tone at the top, emphasizing its importance but providing little practical advice. In some sense, it is hard to define in specific actions since the context and the actors can vary with respect...
My good friend and colleague Dan Chapman, now the CCO at VimpelCom, is a compliance rock star. I have known Dan for years, beginning when he took over at Parker Drilling and implemented a world-class remediation program to pull Parker Drilling through a difficult FCPA problem. Dan is now heading the effort to remediate and “fix” VimpelCom after the FCPA enforcement action announced last year....
Following a separate SEC action (here), the Justice Department resolved FCPA charges against Las Vegas Sands for $7 million. DOJ and Las Vegas Sands entered into a non-prosecution agreement (NPA) citing much of the same evidence outlined by the SEC in its enforcement action against Las Vegas Sands for $9 million. The Justice Department’s NPA includes a statement of facts centering on large payments made...
After years of fits and starts, and promises and disappointments, the Serious Fraud Office and the UK Bribery Act made its initial splash on the anti-corruption enforcement landscape. Since 2011, companies have been warned that the SFO would begin enforcing the UK Bribery Act. There have been a few enforcement actions and important legal modifications in the UK authorizing deferred prosecution agreements. While it has...
In an unusual FCPA enforcement action, the Justice Department and the SEC resolved FCPA violations against Sociedad Quimica y Minera, a Chilean chemical and mining company, for a total of $30.5 million, for paying approximately $15 million in bribes to Chilean officials. SQM agreed to a deferred prosecution agreement (DPA) with DOJ and to assignment of a two-year independent compliance monitor. The odd aspect of...
In its continuing quest to push the message of aggressive FCPA enforcement, the SEC resolved FCPA charges against Orthofix, a medical device company, for $6 million in penalties and disgorgement. In a related action, the SEC announced that Orthofix and four executives agreed to pay $8 million for accounting control errors. The Justice Department declined to prosecute Orthofix. All of this sounds reasonable, except for...
