With the end of the Avon case fast approaching, the expected settlement of over $100 million includes some important lessons learned for companies in the middle of internal investigations and negotiations with the government. The most recent lesson learned for companies under investigation is to avoid public negotiations with the government.  It is always a no win proposition and typically results in a greater loss....

The Justice Department and the SEC continue the drumbeat encouraging companies to voluntarily disclose potential FCPA violations.  Of course, the reason for their position is obvious – they want to know about every violation, no matter what size and to what extent.  If I were still a prosecutor, I would say the same thing. However, there is a lot more nuance to the issue, especially...

The SEC knows that it has broad enforcement authority.  In the FCPA arena, the SEC has civil authority over bribes, but more importantly, enforcement authority over books and records and internal controls.  It is this latter concept – “internal controls” which can be stretched and used against companies and individuals in some pretty bizarre ways. Relying on the authority of an internal controls investigation, the...

The healthcare industry has been an innovative leader in developing compliance tools and strategies.  They have come by it honestly – prosecutors and HHS-OIG have been pounding on pharmaceutical companies, medical device companies, hospitals, skilled nursing facilities, hospices, and doctors for years. The industry has a target on its back and each year the government extracts more penalties, jail time and Corporate integrity Agreements from...

Life is filled with ups and downs.  Compliance officers know this and are familiar with riding the roller coaster.  Compliance “failures” are inevitable. If you look at any company’s internal investigation case mix, you will see a laundry list of compliance problems, most of which center around human resource issues.  That is to be expected. The internal investigation case mix is only the tip of...

Sometimes our experiences provide important lessons that we can apply in our current job. As a federal prosecutor in the District of Columbia, criminologists were pushing the “broken windows” theory of law enforcement: that serious crimes were more likely to occur in areas where minor crimes (petty misdemeanors) were ignored or not enforced.  It is a theory that then-Mayor Rudy Giuliani put into practice in...

Financial institutions, investment banks, private equity firms and hedge funds are having a rough time.  Things are just not going well for them.  While the economic outlook is turning positive, the enforcement atmosphere is casting a black cloud over boardrooms and senior management in the financial industry. In recent statements from the Justice Department and regulatory officials, prosecutors and regulators have warned the industry that...

Chief Ethics and Compliance Officers are giddy these days – the push for empowerment: independence and resources is continuing to succeed.  Of course, the transformation will take time. Corporate boards and senior executives have to be educated and convinced that increasing compliance spending is a priority.  Given all of the competing concerns, this is no easy task. In arguing their respective cases, CECOs have to...

The Justice Department and the SEC have underscored the importance of a company maintaining a clear disciplinary process so that executives, managers and employees are aware that a violation of the corporate code of conduct or the law will result in disciplinary action. In addition, the Justice Department and SEC have emphasized the importance of including positive incentives for compliance with a corporate code and...