The golden ring for every chief compliance officer is an “effective” ethics and compliance program. But if you ask a CCO if the company’s compliance program is ”effective,” they will bow their heads and reluctantly admit, “No, we need to . . . [fill in the blank].” CCOs tend to be perfectionists. It comes with the mindset and the territory. They demand perfection from others...
The Supreme Court is about to send another shockwave in criminal law. No one suspected that the Roberts Supreme Court would become a pro-defendant court but with the support of some conservative justices, the tide against prosecutorial excess is strong. From my perspective, the most significant criminal case in the last twenty years was Booker, which gutted the US Sentencing Guidelines and made the guidelines...
No company wants a corporate monitor. If you ask any General Counsel, Chief Compliance Officer or Chief Executive Officer, they can list an infinite number of alternative punishments they would rather suffer than have a corporate monitor. The idea of a corporate monitor is a good one. If you ask a company after the corporate monitor departs about the experience, many will tell you that...
The next compliance frontier in anti-corruption enforcement is third-party audits. We have spent the last few years fashioning third-party audit contractual provisions to define when and how such audits can be conducted. The issue now is for compliance professionals to work with their internal audit teams to adopt a third-party audit strategy. The first constraint is the obvious one – how much money can we...
We all know there has been a sea change in the compliance profession. No longer are compliance professionals relegated to the backwater of corporate governance. Instead, they are now front and center and being asked to design and implement effective systems to detect and prevent violations of a code of conduct and the law. The compliance profession should give itself a big pat on the...
As sanctions enforcement continues to mature, the permutations of risks become more complex. One area where companies have significant exposure is when they can be accused of “facilitation.” It is a unique risk for logistics companies and other professionals who assist companies in moving goods across borders. An individual cannot facilitate a transaction with a person or entity sanctioned by the US government. A violation...
It is rare to say but Hollywood occasionally can provide us with ethics and compliance lessons. My wife and I recently saw the movie, A Most Violent Year. It is worth seeing – not just for entertainment, but also for the ethics and compliance lesson. (Of course, you know your life needs a little jolt when you go the movies only to walk out muttering...
We all can cite situations in which we avoid the truth. Part of the reason is we want to believe and cannot accept the truth. With age, we supposedly acquire wisdom and become more realistic about personal and professional situations. For the compliance professional, it is easy to sink into the “happy talk” defense and avoid realistic assessments. I have met and worked with many...
With the increasing criticism of DOJ’s use of deferred prosecution agreements (“DPAs”), it was inevitable that the courts would assert themselves in this area. Last week, Judge Richard Leon on the District of Columbia rejected a DPA involving Fokker Services under which Fokker agreed to pay $21 million in penalties for violation of OFAC sanctions involving Burma, Sudan, and Iran. During the period 2005 to...
The focus on the FCPA provides a myopic view of corruption. Bribery of foreign officials is only one slice of the corruption pie. Even though the United States ranks number 19 in Transparency International’s Corruption Perception Index, there is plenty of domestic corruption that occurs at the federal and state level. There are two major federal corruption prosecutions that are ongoing and getting significant national...
