It is interesting that the most significant advances in compliance program requirements have been developed in the context of criminal prosecutions.  Maybe it is because the stakes are so high and the government’s leverage is at its zenith. The US Sentencing Guidelines’ definition of an “effective compliance program” led to a sea-change in corporate compliance.  The FCPA Guidance is an equally transformative document.  FCPA enforcement...

The FCPA Guidance contains good news and bad news.  When I ask one of my kids which they want to hear first … they inevitably choose bad news first. With that in mind, the FCPA Guidance includes relatively bad news on successor liability.  In leading up to the FCPA Guidance, I thought the DOJ and SEC “teasers” would become a reality.  What was I hoping...

Perhaps I was being overly optimistic.  I thought the Justice Department and the SEC could bring a little clarity to the term “instrumentality” in the definition of a “foreign official” under the FCPA.  It was wishful thinking on my part. In fairness, the Justice Department has a pending appeal before the 11th Circuit on this issue and any statements made could definitely have been used...

The FCPA Guidance is a terrific contribution to FCPA law and policy.  I have the utmost respect and admiration for the DOJ and SEC professionals who enforce this law.  They are true public servants.  A testament to the importance of the FCPA Guidance is the absence of any meaningful or persuasive criticism of the FCPA Guidance.  Of course, the FCPA Paparazzi will try and strike...

Companies often get “hung up” on paying for gifts, meals, travel and entertainment expenses.  There are risks in this area but it most cases the risks are overblown.  I am not saying that companies should ignore the issue but companies spend too much time on this issue which can be better used on financial controls and third party risks.     The FCPA Guidance only reinforces...

With all the hype and bloviating behind us, it is now time to take a closer look at some of the more significant aspects of the FCPA Guidance.  For those who continue to carp about the failure of the FCPA Guidance to contain any real “reforms,” I would suggest that your expectations were misguided.  Those who anticipated significant changes to FCPA enforcement were way off...

It has taken a long time but the status of whistleblowers has reached an all time high.  Whistleblowers can expect even more encouragement and protections in the future.   What is the reason for this?  Does greater reliance on whistleblowers reflect a lack of confidence in traditional law enforcement tactics? The Obama Administration’s aggressive enforcement program has been built on a number of principles which are...

Before getting down to some of the “nitty-gritty” issues addressed in the FCPA Guidance, I wanted to take a moment to provide a quick list of headlines from the FCPA Guidance.  My review does not reflect any of the typical “hard sell” strategies employed by the FCPA Paparazzi to try and strike fear in the heart of corporate counsel and compliance officers.  I have already...

The FCPA Guidance is here and I will write a few postings on the subject.  Initially, it is important to look at the political landscape.  President Obama’s re-election communicated an important message to lawmakers and corporate leaders about public expectations.  Bob Dylan wrote many famous songs, one of which is particularly appropriate considering the current political climate – The Times They Are A Changin, which...

The underpinning of the Justice Department’s criminal prosecutions program against companies is based on a simple premise – a company has to negotiate a pre-indictment settlement to avoid the catastrophe which occurred to Arthur Andersen in 2002.  As you will recall, in 2002, Arthur Andersen went to trial, was convicted and the company evaporated, jobs were lost and pensions were gone.  The impact on the community...