The test of any compliance program is simple. All you have to do is look to the Chief Compliance Officer and ask these two basic questions: 1. Does the CCO have independent authority and reporting access? 2. Does the CCO have the resources needed to carry out the job? If the answers are no, the program is not adequate. In 9 cases out of 10...
I have spoken to several in-house counsel meetings about the Laura Stevens criminal case. It is amazing to me how many have not heard about the case or appreciates the implications for in-house counsel and especially global businesses. In-house counsel have a very challenging job and often have little time to devote to non-emergencies. I will try and boil down the implications to make it...
A policy debate requires careful thought and practical evaluations. That is the case with the current flap involving the Chamber of Commerce’s push for reform. The Chamber of Commerce, for all its resources, and brilliant minds, ignored a number of significant issues surrounding a compliance defense to an FCPA prosecution. Even the FCPA Professor ignored some real significant practical issues. Prosecutors and defense counsel with...
Companies hire lawyers for a reason. Hopefully, they do so for more than one reason. Lawyers provide several important benefits, contrary to all the jokes and ridicule against the profession. The attorney-client privilege encourages confidential communications between business actors and attorneys. As the Supreme Court has stated, “[t]he purpose of the privilege is to encourage clients to make full disclosure to their attorneys.” In addition,...
FCPA commentators, like my good friend Howard Sklar, tout the benefits of self-reporting when they discover an FCPA violation. There is no question that if a company self-reports they will get a break. What is not clear, and has not changed, is the question — How much? The Justice Department wants everyone to report potential violations. Why? They get another case, another statistic and another...
Join me and Michael Ruggio on May 31, 2012, at 11:30 AM for an audio conference Off-Label Marketing Enforcement and Risks for Medical Device Companies and Service Providers. You can SIGN UP HERE Headline after headline reports corporate settlements and criminal prosecutions against medical device companies and health care providers for off-label marketing violations. This audio conference will update the current trends and compliance strategies relating to...
Lawyers like to complicate issues and then solve them. It is how we stay in business. Lawyers have developed terms which are difficult to define (e.g. reasonable) and then sell themselves as the experts in applying these terms. Compliance issues are not as complex as people like to think. Solutions usually can be developed by applying common sense. Compliance officers and internal auditors are proficient...
Federal civil and criminal enforcement against companies is at an unprecedented level. I have repeated this over and over. In the face of this aggressive enforcement environment, it is time for corporate boards to step up to the plate. As each new scandal is reported, the question always comes up – where was the board? Why didn’t they intervene and fix the problem? Directors need...
Many of the Fortune 100 companies tout their compliance programs. They are proud of their gold-plated, compliance programs and their record of success. But the world changed recently – especially for the Fortune 100 companies — with the events in Mexico and the New York Times report. Fortune 100 companies are not immune to compliance breakdowns. Recent events have underscored this point – no matter...
You have to give the Justice Department credit – they are crafty and can be very politically astute. The Justice Department played a very subtle political game with the Morgan Stanley settlement. You have to give them credit for how they used the case to make a point. The Justice Department wanted to show everyone that they can be reasonable, credit a corporate compliance program,...
