With lots of fanfare, Esquenazi and Rodriguez, and the usual suspects filed a cert petition and briefs in support of the appeal from the 11th Circuit Court of Appeals’ decision affirming the lower court’s interpretation of “instrumentality,” and the significant criminal sentences handed out to the two defendants. The petition was denied quickly.  No one should have  been surprised, including all the usual suspects.  I...

We all know that sometimes the press just gets it wrong. They do not understand the nuance of an issue that may be right in the core of our legal and/or compliance practice. We all have read an article in our area of expertise and shake our heads – the press missed the nuance and focused on the wrong issue. I felt this way when...

Everyone claims to know how to conduct an internal investigation. Given the government’s reliance on internal investigations, law firms have beefed up their internal investigation services. Inevitably, the quality of internal investigations will be mixed. Internal investigations can cost lots of money, especially when conducting a global investigation. Avon and other companies have been hit with astronomical legal bills in authorizing and conducting internal investigations...

China’s entry into the anti-corruption enforcement arena has received lots of press attention. Just as significant as this development, China has added international cartel enforcement to its list of priorities. With far less fanfare, China has found “religion” when it comes to prosecuting price fixing conduct. China’s National Development and Reform Commission (“NDRC”) has expended its focus to include multinationals that engage in cartels. More...

Companies implementing due diligence programs face a number of challenges. It is hard enough to identify all of a company’s third-party intermediaries – agents, distributors, customs and logistics representatives, nominees, and professionals, just to name a few. Getting your arms around these third parties to make sure they are subject to due diligence, and monitored and audited can be difficult. Risk-ranking formulas can be used...

The GM debacle over its handling of the ignition switch defect continues. GM’s CEO Mary Barra and the rest of GM’s leadership just do not seem to be getting the message. It is not unusual for C-Suite executives to lead from an ivory tower. In the face of a dramatic governance breakdown, GM has failed to take extraordinary steps to demonstrate that it understands the...

Chief Compliance Officers who lament the challenges of their jobs should be thankful they are not in charge of compliance for higher education institutions. The culture of compliance has extended into many high-risk areas but one area where compliance is catching up is higher education. Universities and colleges face a myriad of regulatory requirements, many of which are imposed by federal and state governments in...

The Justice Department recently read through the United States Code and discovered something important — a statute that authorizes the government to issue administrative subpoenas to build massive civil fraud cases that carry huge penalties. For some reason, the Justice Department never used the statute until recently as a weapon against companies in the financial industry. The statute was adopted in 1989 during the savings...

The Justice Department has a penchant for disclosure – they tell you what they are going to do in advance and then they do it. Companies have tried to claim they were “shocked” or “surprised” by the Justice Department’s actions but their claims have a hollow ring to them. For example, in 2009, the Justice Department told the pharmaceutical and medical device companies they were...

Many companies do not realize the importance of creating a “Speak Up” culture and how to deal with whistleblowers. Too many companies say they want to hear about problems but when employees raise the issues they become defensive. This is particularly true when dealing with whistleblowers. The natural response to a whistleblower is to deny any claims of wrongdoing or misconduct. After denial, companies tend...