Companies need to spend more time critically evaluating their own governance performance.  Corporate governance weaknesses inexorably cause poor corporate performance and can result in compliance breakdowns. It is hard to turn corporate focus to governance issues.  Corporate leaders are reluctant to admit “weaknesses” and agree to the need for change.  Companies do not like change – in fact they resist change. In the last few...

It is a profound grasp of the obvious to state that internal investigations are risky.  There are so many things that can go wrong when conducting an internal investigation.  I am biased and believe that former federal prosecutors are fully capable of navigating these risks.  They have experience in conducting investigations, interviewing witnesses, reviewing evidence and assessing the facts in a case. The value of...

The Justice Department and the Department of Health and Human Services have made healthcare fraud a number one priority – it is another example of the synergy of politics and enforcement.  Congress spends more money on prosecution resources and prosecutors use these resources to bring more criminal and civil enforcement actions.   Every few months the government announces another nationwide crackdown and defendants are swept up...

Companies face a lot of risks these days in this enforcement environment.  With the reelection of President Obama, businesses need to plan for four more years of continuing enforcement risks.  While everyone appears to be spending time on FCPA enforcement and compliance, companies need to spend more time in protecting themselves from the False Claim Act.  The government uses the False Claims Act to recover...

The Financial Crimes Enforcement Network (FinCEN) is a new, imposing figure in the world of financial regulatory enforcement.  As originally created, FinCEN served as an information and intelligence support system for other regulatory agencies and federal prosecutors.  That all changed in 2004 when Congress mandated that FinCEN create an Office of Compliance.  Since then, FinCEN’s importance as a regulatory and enforcement agency has grown. The...

In the midst of all this hullabaloo about the FCPA Guidance, an important survey was recently released by Kroll which confirmed my worst fears – despite all of the enforcement actions, all of the FCPA Paparazzi fear mongering, the implementation of the UK Bribery Act, and the global anti-corruption movement, Asian companies are not implementing anti-corruption compliance programs.  In the words of John McEnroe, “You...

The FCPA Guidance could not have been clearer; it could not have offered more incentives and carrots to the business community.  If you adopt and implement an “effective” compliance program, you will receive significant credit for your program which can reduce a penalty, avoid a corporate monitor, or even secure a declination — a free pass — for FCPA violations. The message is clear to...

The US Court of Appeals for the Second Circuit, in a decision issued on December 3, 2012, in United States v. Caronia, threw out a criminal conviction of the defendant Alfred Caronia, a pharmaceutical sales person, for an off-label marketing violation, ruling that the prosecution violated the First Amendment.  (A copy of the decision is here). The Caronia Court ruled in a 2-1 decision that the...

The US Chamber of Commerce “praised” the FCPA Guidance.  The Chamber did not get what it wanted but it had to recognize that the FCPA Guidance was helpful for businesses.  The FPCA Guidance provides important information for compliance, due diligence and other relevant issues. Some industries received a little bit of relief; others did not.  Unfortunately, for the pharmaceutical and medical device industries, the FCPA...

Compliance professionals need to thank DOJ and SEC for the FCPA Guidance discussion on corporate compliance.  DOJ and SEC provide important suggestions for improving compliance but they do so while reaffirming several important compliance principles. First, and most importantly, DOJ and SEC reaffirm the requirement that a single senior manager or group of senior managers must be assigned responsibility for the compliance program, have appropriate...