One tricky issue at the beginning of every internal investigation is determining whether the government is investigating the same issue. If the government is conducting its own investigation, tricky issues can come up about informing employees that government investigators may contact them. As part of its war on white collar criminals, the government is employing tactics typically reserved for narcotics trafficking organizations and organized crime....

The debate surrounding FCPA enforcement and a compliance defense should be expanded to focus on the real issue at play – corporate criminal liability under the doctrine of respondeat superior.  The Chamber of Commerce has focused on the FCPA reform issue and has failed to gain much traction, especially in light of recent publicly-disclosed FCPA investigations. Several years ago the Chamber pursued changes in corporate...

The FCPA paparazzi like to wring its hands over anti-corruption compliance in China.  Some of the wringing makes sense; some does not. No company should avoid entering or expanding into China because of corruption risks.  Any company which decides not to enter China for that reason has a limited perspective.  China is a corruption compliance challenge.  You must enter China with a full plate of...

Companies frequently ignore the reality of FCPA enforcement and risks.  In the quest to ensure compliance, companies sometimes focus too much on the minutiae of compliance policies.  It is a mistake to devote the time and resources to answering these types of questions instead of focusing on some of the more significant issues facing compliance officers and in-house counsel.  The best illustration of this point...

Press reports have come out with supposed “news” – the Justice Department is considering launching a new industry sweep of global retailers.  This is no surprise. Recent events have underscored the risks that global retailers face when entering new markets.  There are plenty of risks facing global retailers – their business depends on customs approvals, licensing and zoning permits.  The Justice Department’s launch of a...

The Chamber of Commerce, the FCPA Professor and others have argued for a corporate compliance defense to an FCPA charge.  Their argument is that a defense will increase corporate incentives to implement effective compliance programs.  One alternative which is not discussed very often is to increase the benefit for an effective corporate compliance program under the US Sentencing Guidelines.  Right now, companies can get a...

Doctors and health care service providers are under the False Claims Act microscope.  The risks are significant and the costs can be astronomical.  For all the obvious risks, doctors, hospitals, PPOs, HMOs, and health care providers need to pay more attention.  They are targets and the government knows it has an army of potential whistleblowers and lawyers ready to jump on them to seek monetary...

If you want to see how the SEC’s whistleblower program may look in a few years, all you need to do is take a look at the False Claims Act and the role that whistleblowers play in the enforcement of the Act. Whistleblowers are the most important tool in the government’s FCA enforcement arsenal. They are authorized by qui tam provisions (meaning “he who prosecutes...