Every compliance program depends on collaboration.  No one actor at a company determines the success or failure of a corporate compliance program. One key component of this collaborative effort is the relationship among the Chief Compliance Officer (”CCO”), General Counsel and Internal Auditor.  Neither one of them can do it all no matter how hard they work or how good they are at their respective...

There is a lot of grumbling these days over the Justice Department’s use of Deferred and Non-Prosecution Agreements.  Some think the deals are too lenient and corporations should be required to plead guilty.  Capitol Hill continues to question why individuals are not prosecuted in recent mega-settlements.  Another area of criticism focuses on the detailed compliance conditions imposed on companies. One thing is clear – the...

The bottom-line:  If you do not conduct a risk assessment, then you should start praying.  The FCPA Guidance made it clear – conduct a risk assessment and tailor your compliance program to the risk assessment. In the unfortunate event that your company is involved in an FCPA enforcement action, DOJ and the SEC conduct a thorough review of a company’s compliance program.  If the program...

As the Jodi Arias criminal trial winds down, I have to go out on a limb and make my prediction. I have tried a lot of cases and have a good sense of which way a criminal case will usually break.  Figuring out the Jodi Arias case is compounded by the notoriety of the case and the media coverage (some might say obsession). The trial...

Hospitals continue to be under the Department of Justice-HHS/Office of Inspector General microscope.  DOJ-OIG is a potent combination and carry with them the threat of criminal prosecution, civil false claims enforcement and civil exclusion from federal healthcare programs. Intermountain Healthcare is a hospital chain in Utah, which has 22 hospitals and 185 physician clinics.  In 2009, Intermountain voluntarily disclosed potential Stark Law violations.  In April...

The Justice Department and the SEC should be credited with promoting new compliance strategies and best practices.  Whatever you may think about the DOJ/SEC FCPA enforcement program, they have pushed businesses to enhance their compliance programs and to develop new risk management techniques. In recent years, DOJ and SEC have pushed the concept of proactive audits in high-risk areas.  Internal audits are the first to...

A bribe is a bribe.  It is not as easy as it sounds.  Not all payments of money or transfers of value are bribes.  The FCPA tells us that.  It is even more complicated when trying to navigate Anti-Kickback and Stark law violations. Doctors like to make money.  As the government expands its role in our healthcare system, doctors have to be even more mindful...

The Antitrust Division has always had a special place in the Department of Justice.  It is a world unto itself. Depending on the Administration, the Antitrust Division can rise or fall in the enforcement world.  The change in enforcement is most pronounced in the civil arena – mergers and civil enforcement. Criminal enforcement is something everyone agrees on – price-fixing, territorial allocations and other agreements...

The old adage – if something is too good to be true, it probably is not – applies with equal force in the world of bribery and intrigue.  The recent arrest of the mining executive for obstruction of the Justice Department’s FCPA investigation of bribery of foreign officials in Guinea underscores the risks of undercover operations. At the recent Dow Jones Compliance Symposium in Washington,...

With all the attention on the Jodi Arias trial, I think it is worthwhile to identify good and bad trial practices.   I will try to refrain from lengthy criticisms but there are some points to be made. If anyone thinks the Jodi Arias trial is a sterling example of a criminal trial in our justice system, they are surely mistaken.  Much of the questioning, on...