Companies often face difficult choices when it comes to deciding on whether to disclose corporate misconduct to the government.  Over the years, more counsel have embraced the idea of sitting tight after uncovering and remediating misconduct (unless the company is subject to mandatory disclosure requirements). Admittedly, I have been aware of situations where that strategy was appropriate.  The likelihood of detection was low and the...

The Uyghur Forced Labor Prevention Act (UFLPA) was designed to be one of the toughest trade enforcement statutes ever enacted by Congress. Passed with near-unanimous bipartisan support in late 2021, the law created a rebuttable presumption that goods made wholly or in part in China’s Xinjiang region—or by entities linked to forced labor there—are prohibited from entering the United States. In theory, the statute was...

The Justice Department has increased False Claims Act prosecutions, reflecting a continued focus on healthcare fraud and a new initiative on trade fraud.  DOJ announced the largest annual recovery figure in the FCA’s history — $6.8 billion in settlements and recoveries.  FCA whistleblowers filed a record number of new cases — 1,297 lawsuits and the government initiated 401 investigations.  Since 1986, DOJ has recovered a...

Healthcare fraud continues to plague providers, managed care, and drug companies.  $5.7 billion of the $6.8 billion recovered by DOJ was generated from the healthcare industry.  There is a bottomless pit of possible targets.  DOJ’s only constraint is its resources assigned to prosecute FCA cases in the healthcare industry.  DOJ focused on three major areas: Managed Care, Prescription Drugs, and Medically Unnecessary Care.  In Managed...

The compliance industry appears to be taken over by AI-this and AI-that.  Third party risk bleeds into major AI risks, corporate governance needs to incorporate AI risks, and policies and procedures have to incorporate AI risks, while of course no risk assessment is worth its sale unless there is a discussion of dramatic AI risks. My first response is whoa — let’s all take a...

The Justice Department has increased False Claims Act prosecutions, reflecting a continued focus on healthcare fraud and a new initiative on trade fraud.  DOJ announced the largest annual recovery figure in the FCA’s history — $6.8 billion in settlements and recoveries.  FCA whistleblowers filed a record number of new cases — 1,297 lawsuits and the government initiated 401 investigations.  Since 1986, DOJ has recovered a...

The most significant compliance and enforcement issue remains trade enforcement — sanctions and export controls.  In the second posting, I want to focus on the new and interesting development in this area: the use of the False Claims Act to capture violations of tariffs and customs duties. With all the hype on the trade compliance front, when you calculate the numbers relating to criminal enforcement,...

From my perspective, hopefully a reasonable one, there is a little too much AI-Risk Hype.  Not to belittle the experts or ignore potential risk concerns but this is getting a little carried away.  The compliance industry appears to be taken over by AI-this and AI-that.  Third party risk bleeds into major AI risks, corporate governance needs to incorporate AI risks, and policies and procedures have...

The Justice Department knows how to use the False Claims Act — it is the primary tool against fraudsters in the healthcare industry, and going back even further, it was used against the defense industry in the 1980s and 1990s.  DOJ has turned the tool towards another angle and this portends a significant trend.  DOJ is opening up a new front in the trade enforcement...