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DOJ Guidance — What to Expect

DOJ Guidance — What to Expect

The Justice Department bought itself some time to try and help themselves in the FCPA enforcement area.  The Chamber of Commerce and others have criticized DOJ for its failure to provide clear guidance on the meaning of the FCPA and how to comply with the law. The news from the last FCPA industry meeting was supposedly big – Assistant Attorney General Breuer announced that DOJ...

How to Comply In High-Risk Corruption Countries

How to Comply In High-Risk Corruption Countries

Common sense ain’t common.  — Will Rogers Corruption challenges should rarely prevent a company from entering a country’s market.  Assuming that the business case can be made for entering the market, a decision not to enter a market because of corruption reflects a lack of problem solving and compliance creativity.   It is easy to say “no” and list all the reasons not to enter a...

The End of the Facilitation Payment Exception?

The End of the Facilitation Payment Exception?

The FCPA, which was passed in 1977, contains an exception for facilitating payments.  The exception was expanded and made more explicit in the 1988 amendments to the FCPA – to include a facilitating or expediting payment made to “expedite or secure the performance of a routine governmental action.” With the global anti-corruption movement, there has been a marked trend against allowing facilitation payments.  The OECD...

Anti-Corruption Compliance — Private Equity Portfolio Companies

Anti-Corruption Compliance — Private Equity Portfolio Companies

Last year, the Securities and Exchange Commission (SEC) sent shock waves through the securities industry when it issued inquiry letters to financial institutions, and private equity and hedge funds focusing on anti-corruption compliance.  This year, Richard Alderman, the Director of the Serious Fraud Office in the United Kingdom, increased industry concern when he gave a series of speeches outlining the enforcement focus of the SFO against the private equity industry....

Failing to Conduct Third-Party Due Diligence

Failing to Conduct Third-Party Due Diligence

It is surprising that companies have not really instituted more procedures for conducting due diligence of third parties.  The 2011 Deloitte Anti-Corruption Practices Survey has some surprising results.  Corporate leaders were pessimistic about their company’s anti-corruption compliance.  The four most cited reasons for this lack of confidence is the absence of a stand-alone anti-corruption policies; infrequent anti-corruption audits; lack of due diligence and monitoring of...

Sovereign Wealth Funds and the FCPA

Sovereign Wealth Funds and the FCPA

The Securities and Exchange Commission (SEC) has focused its regulatory and enforcement efforts on interactions between financial institutions, investment funds and private equity funds, and foreign sovereign wealth funds.  The SEC’s action is predicated on a legal determination that managers at the sovereign wealth funds fall under the FCPA’s definition of a “foreign official.”   As of July 2011, sovereign wealth funds totaled $4.7 trillion under asset management, an...

Sentencing Disparities on the Rise (Again!)

Sentencing Disparities on the Rise (Again!)

The pendulum is swinging again – not by Vincent Price or Edgar Allen Poe – but federal judges are swinging it again.  The problem of sentencing disparities is at the forefront.  DOJ has weighed in and is complaining about disparate treatment of equally culpable offenders across districts.  In particular, the Department is concerned about white collar criminals and the increasing sentencing disparities of these offenders....

Corruption, Crime & Compliance: The Book is Out!

Corruption, Crime & Compliance: The Book is Out!

I am happy to announce the release this week of my book   Corruption, Crime & Compliance!!  My mentor and friend, Judge Stanley Sporkin, the ‘father of the FCPA,’ wrote the foreword. “Michael Volkov’s book is a compilation of articles on a number of subjects important to advising clients how to stay out of trouble. He is a prolific writer and I can say without question, we...

Preparing a Witness for Deposition

Preparing a Witness for Deposition

Corruption, Crime & Compliance is happy to welcome Prof. Rob Steinbach as a guest author for a post on preparing a witness for deposition. I recall once, as a junior attorney, sitting in a conference room with a partner who was preparing a witness for a deposition in a complex securities matter.  The partner told the would-be witness that we would be treating the preparatory...

How to Handle Upjohn Warnings

How to Handle Upjohn Warnings

As I have said on many occasions, there are many risks when in-house or outside counsel conducts an internal investigation.  Just to give you one nightmare scenario, the failure to give proper Upjohn warnings can be catastrophic to a company and individuals who are interviewed. The internal investigation is conducted on behalf of a corporation.  The interests of the corporation can be different from those...