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Confusing “Guidance” from DOJ and SEC on Third Party Liability

Confusing “Guidance” from DOJ and SEC on Third Party Liability

The FCPA Guidance is a terrific contribution to FCPA law and policy.  I have the utmost respect and admiration for the DOJ and SEC professionals who enforce this law.  They are true public servants.  A testament to the importance of the FCPA Guidance is the absence of any meaningful or persuasive criticism of the FCPA Guidance.  Of course, the FCPA Paparazzi will try and strike...

Safe Harbors and Gifts, Meals, Travel, and Entertainment Expenses

Safe Harbors and Gifts, Meals, Travel, and Entertainment Expenses

Companies often get “hung up” on paying for gifts, meals, travel and entertainment expenses.  There are risks in this area but it most cases the risks are overblown.  I am not saying that companies should ignore the issue but companies spend too much time on this issue which can be better used on financial controls and third party risks.     The FCPA Guidance only reinforces...

FCPA Guidance: Refined Compliance and Safe Harbors

FCPA Guidance: Refined Compliance and Safe Harbors

With all the hype and bloviating behind us, it is now time to take a closer look at some of the more significant aspects of the FCPA Guidance.  For those who continue to carp about the failure of the FCPA Guidance to contain any real “reforms,” I would suggest that your expectations were misguided.  Those who anticipated significant changes to FCPA enforcement were way off...

The Whistleblower Era

The Whistleblower Era

It has taken a long time but the status of whistleblowers has reached an all time high.  Whistleblowers can expect even more encouragement and protections in the future.   What is the reason for this?  Does greater reliance on whistleblowers reflect a lack of confidence in traditional law enforcement tactics? The Obama Administration’s aggressive enforcement program has been built on a number of principles which are...

Ten Headlines from the FCPA Guidance

Ten Headlines from the FCPA Guidance

Before getting down to some of the “nitty-gritty” issues addressed in the FCPA Guidance, I wanted to take a moment to provide a quick list of headlines from the FCPA Guidance.  My review does not reflect any of the typical “hard sell” strategies employed by the FCPA Paparazzi to try and strike fear in the heart of corporate counsel and compliance officers.  I have already...

The FCPA Guidance: Bob Dylan, Change and Political Reality

The FCPA Guidance: Bob Dylan, Change and Political Reality

The FCPA Guidance is here and I will write a few postings on the subject.  Initially, it is important to look at the political landscape.  President Obama’s re-election communicated an important message to lawmakers and corporate leaders about public expectations.  Bob Dylan wrote many famous songs, one of which is particularly appropriate considering the current political climate – The Times They Are A Changin, which...

Why Can’t A Company Go To Trial?

Why Can’t A Company Go To Trial?

The underpinning of the Justice Department’s criminal prosecutions program against companies is based on a simple premise – a company has to negotiate a pre-indictment settlement to avoid the catastrophe which occurred to Arthur Andersen in 2002.  As you will recall, in 2002, Arthur Andersen went to trial, was convicted and the company evaporated, jobs were lost and pensions were gone.  The impact on the community...

Moving Corporate Governance “Forward”

Moving Corporate Governance “Forward”

Corporations should take note from the recent election – the American people expect companies to act ethically and conform to the law.  The election results reflected a continuing frustration with financial fraud, corruption, and business misconduct.  Of course, the economy and jobs dominated the campaign but the Obama campaign pressed its desire to have “everyone playing by the same rules,” and enforcement of Dodd-Frank.  The...

Creating a Framework for Reviewing Gifts, Meals, Travel and Entertainment Expenses

Creating a Framework for Reviewing Gifts, Meals, Travel and Entertainment Expenses

Companies spend a lot of time and resources reviewing potential payments for gifts, meals, travel and entertainment.  There are ways to make this process easier and more efficient.  There are three basic requirements for making the review process more efficient. 1.  Prospective standards – Companies need to adopt and enforce a prospective policy which carves out standards for the review and approval of such expenditures. ...

Internal Investigations & Independence

Internal Investigations & Independence

Ask any attorney if they can conduct an internal investigation and the answer is “Yes, of course.”  It is easier said than done.  There is an “art” to conducting internal investigations.  A practitioner has to be able to establish a “vision” of the investigation.  I like to analogize the process to a painter starting with a large canvass and visualizing the end product.  The practitioner...