Who would have ever guessed that the largest corporate penalty paid in 2012 would be an OFAC enforcement action.  The Justice Department has many major FCPA enforcement actions in the queue awaiting approval and public release, but it will be hard to match the penalty paid by ING Bank for $619 million.  Two days after the ING Bank settlement was announced, OFAC also settled a...

You have to admire anyone who is responsible for export control compliance.  They are brave people.  It is a wonder that they can keep everything straight. The Obama Administration, to its credit, has been trying to reform the export control system.  It is about time that someone tackled this mess.  The guiding principle is to try and separate the wheat from the chafe – tighten...

It is not hard to read the tea leaves when it comes to government criminal and civil enforcement programs.  Prosecutors and regulators try to jawbone the industry into compliance by threatening criminal and/or civil enforcement, making examples of industry players by prosecuting a handful of them for criminal and/or civil infractions, and then pointing to those prosecutions as a way to encourage industry compliance.  Sometimes...

The Justice Department urges companies to voluntarily disclose FCPA violations.  In exchange for a confession, DOJ offers companies two important benefits: (1) absolution for any criminal activity; and (2) a reduced criminal fine. Companies that contract with the federal government face a different challenge – under federal contract law, companies are mandated to disclose criminal activity.  If you want to do business with the federal...

Approximately one-quarter of all companies have become enlightened by creating a board-level Compliance Committee.  I have long been an advocate for the advantages of a Compliance Committee.  To me, it is a no-brainer.  A Compliance Committee can be instrumental in focusing an organization’s compliance efforts.   The Compliance Committee purposes should be to ensure: (1) compliance with the laws and regulations applicable to the Company’s business; and...

Occasionally, I like to write on topics that fall within the category of the obvious.  This is one of those situations.  It comes up very often when examining third-party agents. Bribery is a hard crime to prove.  By its nature it is secretive and it requires a meeting of the minds between the briber and the bribee.  Without the testimony of a participant in the...

Everyone likes to monitor company disclosures for the newest FCPA investigation.  Once disclosed, the FCPA paparazzi lights up with the latest “Kim Kardashian News,” warning everyone who will listen about the dangers of government investigations.  Before the disclosure even occurs, how much “evidence” does it take for the SEC or the Justice Department to open an investigation?  From my experience in representing companies and individuals...

It is tempting to jump on the bandwagon and criticize the Justice Department  as a whole for its recent losses in the Edwards and Clemens cases.  No one was surprised by the results.  I know the prosecutors who worked on both cases and I respect them as true professionals.   The Justice Department is an unprecedented mess.  Alumni from the Justice Department hear from our...

Chief Compliance Officers have a hard enough job without getting into turf battles.  Unfortunately, I hear all too often about the intra-company squabbling among the CCOs, General Counsels and Internal Auditors.  Rarely, have I seen situations where everyone cooperates.  Internal turf wars are not surprising nor are they nothing new.  But when it comes down to overall compliance and staying out of trouble, CCOs and...

As anti-money laundering laws and regulations expand to new entities, compliance officers need to focus on the design and implementation of suspicious activity reporting systems. SARs are at the center of every AML compliance program, and are used to identify and report potential terrorist financing, money laundering, and other financial crimes. The quality of the SAR content is critical to the adequacy and effectiveness of...