Just when you thought something was a “trend,” the Department of Justice adopts a new policy approach.  This year has been a very active enforcement year – the strongest year of FCPA enforcement since 2010. Starting with the Total settlement earlier this year, and continuing with the Diebold and Weatherford settlements, the Department of Justice has required companies to retain an independent monitor. The Department...

The government recognizes the importance of compliance and Chief Compliance Officers.  In a number of recent speeches, the leadership of the Justice Department and the SEC have made important statements supporting corporate compliance programs and the role of chief compliance officers. SEC Commissioner Mary Jo White praised CCOs and the important role that they play in ensuring compliance in an organization (here).  Deputy Attorney General...

The SEC’s Whistleblower program has been steadily gaining momentum.  The increase in whistleblower protections and incentives to report misconduct is a real and serious risk. Companies, however, have a lot on their plate these days, and it is hard to brush aside higher priority risks to address whistleblower issues.  Once companies start to focus on the issue, they need to develop procedures for listening to...

The idea of legal “marketing” has been diluted in the last few years.  As businesses become smarter consumers of legal services, in-house counsel and Chief Compliance Officers are much better at deciphering legal mumbo jumbo. Perhaps the best example of legal marketing as an oxymoron, was the roll-out of the UK Bribery Act.  Legal marketing was premised on one idea –fear and fear alone.  Client...

Companies are always fighting against stovepipes.  It is inevitable but offices, divisions and/or functions within a company are always seeking an “advantage,” in competition against other parts of the company. A company dedicated to teamwork and collaboration is always fighting against the forces of resistance and turf protection.  Stovepipes undermine corporate functions and overall global management and resource allocation.  Information has to be shared across...

Consider it one of my (many) pet peeves – companies claim they have an “ethical” culture and cite the consistent statements by the CEO of his or her commitment to “ethics and integrity.”  That’s it, that’s all, we have an ethical culture.  Case closed, deal done, let’s move on to the next issue. Talk about bloviating and hot air – it is the prime example...

Companies struggle to put in place an effective program for conducting internal investigations and meting out discipline.  One of the first questions which internal stakeholders struggle with is who is responsible for the internal investigation issue. Auditors claim they are on the front lines and should be the primary investigators; lawyers claim they need to run the show to protect the privilege; and compliance officers...

Contrary to what parents always tell their kids, when it comes to the authority of a Chief Compliance Officer, appearance is everything. This may be another in the long line of profound grasps of the obvious, but if a Chief Compliance Officer is a member of the C-Suite, is seated in the same area as the C-Suite, and attends all important C-Suite meetings, then chances...

Some areas of compliance are truly nascent.  For a profession which is undergoing a radical change in terms of demand and new technologies, more research is needed and greater understanding of program measurements.  The more subjective the measurements used, the more risk that companies can manipulate or even ignore significant compliance concerns. One stark example in this area is the use of hotline complaints.  Every...

Several years ago, the SEC sent shockwaves through the private equity and hedge fund industries.  The SEC launched an industry investigation focused on the legal principle that foreign sovereign wealth funds were a part of foreign governments and led by foreign officials under the FCPA.  The implications of such an interpretation meant that private equity companies and hedge funds had to exercise caution in their...