Here is a real zinger – clients sometimes do not tell their lawyers the truth. I will wait a minute while you get off the floor because I know everyone is shocked and amazed that this happens. But in the recent ZTE case, which we will discuss, the client company lied several times to its in-house and outside counsel resulting in false representations to the...

No one was really surprised when Kenneth Blanco, Acting Assistant Attorney General for the Criminal Division, US Department of Justice, announced last week that DOJ was planning to continue the FCPA Pilot Program past April 5, 2017, the scheduled expiration date. Blanco stated in a speech given at the annual White Collar Crime Conference: Before I conclude, I would be remiss if I did not...

We all enjoy an oxymoron, e.g., army intelligence, compassionate conservative. Some words go together and some do not. When it comes to compliance and private equity companies, you can predict with usual success that private equity and compliance do not fit. Sometimes simple statements turn out to be good explanations for a trend. When a private equity firm acquires a company, the focus is on...

Humans have an innate desire to complicate things. When it comes to ideas, professionals are no different – compliance consultants, lawyers, financial advisers and others enjoy solving complicated problems. Such an approach, however, does a disservice to clients and other professionals. Creating complications is not a sign of professional talent; rather, an effective consultant, attorney or financial adviser should be able to take complex issues,...

Assuming you made it through Part I of this two-part posting about internal controls, we need to consider a new approach to the design and implementation of internal controls. The first hurdle to overcome, as always, is acknowledgement that a new approach is needed. The CFO and the financial team will inevitable resist because this has long been an area where they are the experts,...

The Justice Department and the Securities and Exchange Commission have dedicated more time and energy to understanding a company’s internal controls and enforcing basic requirements that companies maintain effective internal controls. For prosecutors, companies often fall short when it comes to following their internal controls. If you follow my blog, you know that I have often predicted that DOJ will eventually prosecute criminally an individual...

DOJ’s Compliance Evaluation questions provide important indications of “new” trends and approaches to compliance functions and issues. Training In the area of training, DOJ’s Compliance Evaluation reiterates DOJ’s concern that companies tailor their training programs to their specific risk profile. In the FCPA Guidance issued in 2012, DOJ explained that training programs should be tailored to specific audiences. DOJ has refined this requirement to focus...

To design and implement an effective ethics and compliance program, companies have to conduct a risk assessment and tailor its policies and programs to its risk profile. DOJ’s Compliance Evaluation reinforces this framework for a compliance program. Risk Assessment At the outset, a company has adopt a specific methodology for its risk assessment, the types of information it will collect and analyze, and the metrics...

In an unusual move, the Justice Department issued an important document in the dead of night – Evaluation of Corporate Compliance Programs. (Available Here). We have no explanation from the Justice Department for the issuance of this document.   I can speculate but I suspect there was a personnel issue that explained why the issue was released without notice nor explanation. Whatever the reason, the...