Some things are hard to define and measure in compliance. Culture is the prime example often cited by commentators. I do not share that opinion. Whether it is quantified or not, there is one unmistakable truth – you know when you have a positive culture and you know (but often try to ignore) when your company has a poor culture. When I work with companies...
You can always count on lawyers to ring alarm belles and warn businesses. The line between accurate reporting and fear-mongering sometimes blurs when lawyers write so-called “alerts” to inform businesses of new or increasing risks. When it comes to the False Claims Act, I always try to “stick to the facts.” For healthcare, pharmaceutical/medical device, and defense companies, the False Claims Act is usually the...
The SEC is on a mission – companies that engage in egregious payment schemes for gifts, hospitality and travel are going to get prosecuted for civil FCPA violations. Recent SEC enforcement actions against companies continue, and BHP Billiton’s settlement last week is another example of the SEC’s prosecution strategy. BHP Billiton agreed to pay a $25 million penalty to settle SEC charges for internal controls...
The government is on a public relation campaign. Department of Justice and SEC officials have been making the rounds and giving important speeches on criminal prosecutions, cooperation and voluntary disclosure and ethics and compliance program expectations. In a recent speech (here), Criminal Division AAG Leslie Caldwell outlined a number of important issues relating to DOJ expectations of company ethics and compliance programs. DOJ has promoted...
You can add this blog posting to my tagged category – “profound grasps of the obvious.” If you are brave and willing to succumb to yet another in this series, please read on. Much has been written about how to conduct an internal investigation. Not as much has been written about the steps leading to an internal investigation. There can be very difficult judgment calls...
DOJ has developed a new and innovative model for criminal prosecution of corporations. The jury is still out on whether this model is the best use of public resources. DOJ frequently touts its successes based on criminal fines collected, numbers of companies investigated, and improvements in the governance of corporations. DOJ is proud of its program, and rightfully so. DOJ has set in a motion...
In my continuing series on corporate criminal prosecutions, an important assumption for many DOJ policies and corporate counsel representation is that a company cannot survive a criminal conviction. That assumption and policy is being whittled away and I expect will continue to be modified. We are witnessing the development of a new willingness to require corporate guilty pleas and an increased number of challenges to...
The old maxim – “Justice delayed is justice denied” – is a powerful statement relating to our criminal justice system. A subject of a criminal investigation – corporate or individual — undergoes enormous stress from a continuing investigation. Our system is built on the idea that investigations and prosecutions cannot continue forever. The Constitution includes a Speedy Trial provision as part of our Due Process...
The Justice Department continues to be dogged by questions surrounding its conduct of criminal investigations. These concerns are being raised in the context of extreme cynicism given DOJ’s “failure” to prosecute individuals from the financial crisis last decade. Whether it is accurate or not, the public and many politicians view DOJ’s lack of aggressive prosecutions as a significant failure. I am not going to address...
The Treasury Department’s Financial Crimes Enforcement Network has been flexing its muscles lately to remind everyone of its important role in money laundering enforcement. Jennifer Shasky, the current Director, a former prosecutor from the Department, knows how to get things done and she is certainly pushing a number of buttons. In a recent speech, Shasky warned companies about illegal money laundering schemes involving real estate....
