In the Bush Administration, the Justice Department turned deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs)into relevant terms for defense counsel.  Now, even the SEC has joined the club entering into the first DPA and NPA. The distinction between a DPA and an NPA is critical — the DPA invokes the Court’s supervisory jurisdiction and requires the Justice Department to lodge a criminal information to charge the...

The News Corp scandal has focused attention on the interpretation of the FCPA element which requires that bribes be paid (or attempted) to “obtain or retain business.”  Some commentators have claimed that the News Corp facts cannot satisfy this element because the bribes paid to police officers were made for “information.”  In the past few years, the SEC and DOJ have broadly interpreted the “obtain or...

While everyone is focused on anti-corruption enforcement and compliance issues, global antitrust enforcement continues as a significant risk.  Over the last few years the most important trend has been the rising role of European antitrust enforcement against cartels and imposition of higher fines.  Even with this steady rise in European enforcement, US criminal antitrust enforcement has returned in 2011 from a slower 2010.   The pace...

“You don’t need a weatherman to know which way the wind blows” –  Subterranean Homesick Blues, Bob Dylan The Justice Department has taken some serious hits lately — some have been fair and some are not accurate.  All in all, the trend is not good.  If the buck truly stops with the Attorney General, then he is responsible for the “tone-at-the-top.”  DOJ’s missteps lately are alarming.  After securing the FCPA...

You can count on several important events to occur in the News Corp bribery and hacking scandal.  First, the cover up, or attempts to avoid knowledge and liability, will be worse than the crime itself.  Already there are allegations circling that James Murdoch may not have been candid in responding to Parliament’s questions  Second, News Corp will try to feed the media’s appetite by firing and/or removing...

I have tried to avoid writing about the News Corp scandal.  Everyone is writing about it.  The media frenzy goes on and on, with the Murdoch family, pie throwing, dramatic testimony and the usual configuration of scandal enveloping a political administration. But it is interesting to see in the midst of this controversy that the FCPA has now emerged as a major player in the...

In the past year, the SEC has brought two enforcement actions against independent directors at two publicly traded companies. Historically, the SEC has not targeted public company directors, but  will do so only when the directors “knowingly permit or facilitate” securities violations. The message from the SEC to independent directors is clear — take your position seriously, closely monitor and manage the company’s activities, or face serious enforcement exposure. Independent...

Companies react differently to a set of risks.  In response to the new FCPA enforcement push, some companies have continued with business as usual.  Others have stopped to assess their compliance program, assessed the risk and taken action to shore up their potential risks and exposures. What is surprising is how many companies have chosen to ignore the problem and continue on with business as...

Too many practitioners blindly adhere to well-known internal investigation protocols instead of asking practical questions of whether such procedures are actually needed.  It is easy to follow the prescribed steps.  But sometimes lawyers need to think outside the box and ask the hard questions, especially when it comes to the appointment of special committees. In certain situations an independent board committee may be needed.  One situation which...