It is easy to tie FCPA violations to corporate governance performance.  Sometimes the tie is strong – sometimes a little more attenuated. The BIzJet case from last year underscored the importance of proper board oversight and monitoring.  The bribery scheme in the BizJet case was specifically presented to the BizJet board. You would have expected the board to rise up, demand an explanation and immediately...

Sometimes we gloss over complex issues using shorthand phrases.  Part of that reflects our continuing ADHD society where 140 characters is the most any person can read and understand at one time. The US Sentencing Guidelines are always cited for its definition of an “effective” ethics and compliance program (Section 8B2.1).  Under Section 8C2.5(f)(1), a company can earn a three-point reduction in the base offense...

A compliance program built on a “check-the-box” approach is doomed because it isolates program elements that need to be integrated.  Compliance is akin to holistic ideologies (yes, you can quote me on that one). The whole of a compliance program cannot be stitched together.  Each piece is interconnected in a greater whole.  Each piece of a compliance program is interdependent and reinforces the other pieces....

FCPA practitioners, commentators and yes, even the FCPA Paparazzi, all spend a lot of time discussing, analyzing and posing theoretical questions related to the legal issue of who is a “foreign official” under the FCPA.  The issue deserves lots of attention and analysis. After all, the issue can determine whether a company is liable or not for giving money or anything of value to a...

Sometimes people operate with blinders.  I don’t mean to suggest that people deliberately put blinders on to ignore issues – they sort of just grow into a person’s personality. John Lennon said its best – “Living is easy with eyes closed.” The same applies to people who fail to listen.  Whether deliberate or not, people avoid what they do not want to hear. There are...

If you trace the path of an FCPA violation inside an organization, at a minimum, you will see a path of lost opportunities, oversights and omissions.  If you see anything different, you may be looking at a deliberate scheme involving complicity or active steps by senior management to a bribery scheme. Assuming we are looking at a situation where senior management and the board failed...

The SEC likes to reorganize, refocus and reenergize.  In the last ten years, the SEC has continued to reinvent itself.  Whether it has been effective or not, is still up for questioning. Some have questioned if the SEC’s initiatives and reorganization have diverted it from monitoring bread-and-butter issues, such as financial fraud, particularly in the accounting area. The SEC’s new chairwoman, Mary Jo White, has...

Webinar: Internal Investigations — Soup to Nuts March 11, 2014, 12 Noon EST SIGN UP HERE   More and more companies need to conduct internal investigations as an important strategy to protect the company against serious government investigations. Not all internal investigations have to be conducted in the same way. The steps needed to conduct an effective internal investigation will vary depending on the nature...

Some people are gluttons for punishment.  We all know people in our professional and personal lives who repeatedly end up in trouble.   Even when they escape some serious consequence or problem, they inevitably bring about more trouble. I have written about JP Morgan and its continuing compliance nightmare; its resounding compliance failures; and its unwillingness to acknowledge its own responsibility for much of its own...

If you want to know how well an ethics and compliance program is doing, the best indicator is to review the communications between the Chief Compliance Officer and the Board of Directors, usually the Audit Committee. There are four critical questions that need to be asked: 1.  How often does the CCO report to the Audit/Compliance Committee? 2.  Does the CCO report to the Board...