The controversy around punishment and deterrence of corporate misconduct continues to swirl.  As fines increase against companies, it is important to ask the question whether the current enforcement scheme adequately punishes and deters corporations. The issue was underscored by recent comments made by JP Morgan’s General Counsel three days after JP Morgan reached a record $13 billion settlement for its mortgage-backed securities activities, who suggested...

When it comes to health insurance fraud, Carl Sagan’s obsession with the words – billions and billions — are particularly accurate. As the government’s role in health care increases, it is inevitable that fraud against the government will increase as well.  The False Claims Act is the primary weapon the government uses to chase fraudsters.  While the government has aggressively ramped up its anti-fraud fight,...

Companies need to recognize the importance of responding effectively to a whistleblower complaint.  The Enron case, and many others after that, started with a whistleblower complaint which the company either ignored or bungled in its response. I have repeatedly advised companies to develop a whistleblower triage strategy for assessing, responding to, and dealing with whistleblowers.  There are a number of ways to set up a...

There are so many potential pitfalls in conducting an internal investigation.  I always say that there is an “art” to conducting an effective internal investigation.  There are so many ways in which an investigator can be derailed, waste resources, and/or lose focus while conducting an investigation.  One of the most common ways in which a company can derail an internal investigation is by failing to...

Everyone knows that a compliance officer does not need to be a lawyer.  Some compliance professionals believe that lawyers do not make very good compliance officers – the jury is out on that.  To me, what matters more is the personal attributes that a person brings to a job – are they positive, persistent, goal-directed, self-effacing, and able to communicate and work together with people....

Just when you thought something was a “trend,” the Department of Justice adopts a new policy approach.  This year has been a very active enforcement year – the strongest year of FCPA enforcement since 2010. Starting with the Total settlement earlier this year, and continuing with the Diebold and Weatherford settlements, the Department of Justice has required companies to retain an independent monitor. The Department...

The government recognizes the importance of compliance and Chief Compliance Officers.  In a number of recent speeches, the leadership of the Justice Department and the SEC have made important statements supporting corporate compliance programs and the role of chief compliance officers. SEC Commissioner Mary Jo White praised CCOs and the important role that they play in ensuring compliance in an organization (here).  Deputy Attorney General...

The SEC’s Whistleblower program has been steadily gaining momentum.  The increase in whistleblower protections and incentives to report misconduct is a real and serious risk. Companies, however, have a lot on their plate these days, and it is hard to brush aside higher priority risks to address whistleblower issues.  Once companies start to focus on the issue, they need to develop procedures for listening to...