Category: General

New Sanctions Law Complicates Trade Compliance

Politics and sanctions law go hand-in-hand. In a rare instance of bi-partisanship, Congress united to constrain the administration’s ability to modify the existing sanctions program against Russia. At the same time, Congress expanded the sanctions regime for Russia, Iran and North Korea. The administration was forced to sign the bill given the overwhelming vote in favor of the measure. As a result, compliance practitioners have...

What Happens When Employees Stop Speaking Up?

One of several difficult compliance questions facing companies revolves around reporting of employee concerns. If the number of complaints coming in on a company hotline goes down over time, is corporate misconduct going down or are employees losing trust in the company’s speak up system? These are two diametrically opposite conclusions. Compliance officers have to be realistic and objective when analyzing this question. Misconduct rates...

LIBOR Criminal Convictions Reversed – The Perils of Global Enforcement

The growth of global enforcement systems raises important policy issues and risks for enforcement authorities. In an interesting case, US v. Allen and Conti, copy here, the Second Circuit Court of Appeals reversed criminal convictions for two LIBOR traders. The issue presented in the case is fascinating. Allen and Conti are UK citizens and were employed by Coöperatieve Centrale Raiffeisen‐Boerenleenban in the 2000s and participated...

How Do You Define a Compliance Program Failure?

In our perpetual quest for simplicity, sometimes we fail to understand the complexity of an issue.   In the corporate world, if you ask board members and CEOs how they would define a compliance program ”failure,” I am sure most  would answer that a compliance program fails when the government brings an enforcement action. In other words, when the government investigates a company and when...

Double Whammy for United Healthcare: Two False Claims Act Cases in Two Weeks

The False Claims Act is the government’s weapon of choice in fighting healthcare fraud.   In the beginning of the Obama Administration, Congress amended the False Claims Act and enacted a wish list from DOJ prosecutors. Healthcare companies have no choice but to negotiate settlements since they risk exclusion from federal healthcare programs, the equivalent of a death sentence for healthcare businesses. United Healthcare is...

The Perfect Compliance Combo: Culture and Controls

Compliance practitioners divide their commentary and insights into two general categories – ethical culture and compliance controls. It is easy to divide compliance issues into these two categories. Ethical culture articles are a little less concrete; compliance controls are practical and focused on policies and procedures. A compliance program cannot be deemed effective, however, unless there is a combination of these two important functions. An...

FCPA Risks and Acquisition Integration Challenges

Chief compliance officers have devoted significant efforts to conducting pre-acquisition due diligence of a proposed target companies. I do not intend to diminish the importance of pre-acquisition due diligence, but I have noticed companies are increasing attention to post-acquisition integration planning and execution. There is no question that disruption in the integration process can be very harmful to the overall success of an acquisition. Companies...

Anti-Corruption Compliance: The Need to Look Under the Cloak of Materiality

Sarbanes-Oxley revolutionized the auditing profession. Section 404 imposed stringent requirements for disclosure of the state of a company’s internal controls and financial reporting. The company’s independent auditor is required to report on the effectiveness of the company’s internal controls, and include bribery, theft and fraud. The requirements are intended to prevent a material misstatement of the company’s financial statements. The key term of art surrounding...

The Strange Case of OFAC Against Exxon for Sanctions Violations

In a bizarre enforcement action, The Treasury Department’s Office of Foreign Asset Control (“OFAC”) assessed a $2 million civil monetary penalty against ExxonMobil (“Exxon”) for violations of the Ukraine sanctions. (Copy Here). OFAC’s enforcement action boiled down to Exxon’s execution of eight legal documents with Igor Sechin, the CEO of Rosneft OAO (“Rosneft”), who is a Specially Designated Nation and Blocked Person on what is...

Is Your Company At-Risk for a Government Enforcement Action?

For some reason, I have always believed that picking successful stocks should not be very difficult. Unfortunately, my record in the stock market does not back up my self-assessment. On the other hand, when it comes to compliance and corporate misconduct, I am confident about identifying and defining “at risk” companies. What is an “at-risk” company? An at-risk company is a company that suffers both...