When Judge Sporkin, the father of the FCPA, assisted Senator William Proxmire in the drafting of the FCPA, he advised Senator Proxmire that a “books and records” provision was all that was needed to address the problem of foreign bribery.  As Judge Sporkin has stated publicly, he thought a bribery prohibition would be hard to prove. Judge Sporkin’s view of the matter was especially prescient. ...

The UK Bribery Act is still on the books – and there is very little enforcement action to report.  Instead, we are treated to new personnel, policies and practices surrounding the UK Bribery Act, which so far has not amounted to a hill of beans. I do not mean to denigrate the UK’s anti-corruption enforcement effort.  All of the pomp and circumstance surrounding the UK...

Companies need to spend more time critically evaluating their own governance performance.  Corporate governance weaknesses inexorably cause poor corporate performance and can result in compliance breakdowns. It is hard to turn corporate focus to governance issues.  Corporate leaders are reluctant to admit “weaknesses” and agree to the need for change.  Companies do not like change – in fact they resist change. In the last few...

It is a profound grasp of the obvious to state that internal investigations are risky.  There are so many things that can go wrong when conducting an internal investigation.  I am biased and believe that former federal prosecutors are fully capable of navigating these risks.  They have experience in conducting investigations, interviewing witnesses, reviewing evidence and assessing the facts in a case. The value of...

In this era of whistleblower risk, companies need to prepare for whistleblower complaints which are made outside the company.  Whistleblowers are not required to report complaints internally nor wait for any specific period of time to benefit under the SEC whistleblower program. Instead, whistleblowers have an incentive to wait for 120 days before contacting the government.  Under the SEC’s whistleblower regulations, a whistleblower is entitled...

The healthcare industry is very familiar with risks and compliance.  In many areas of compliance, the healthcare industry has led the way.  The record of success is mired in one significant glaring area – the independence and authority of chief compliance officers. The industry as a whole deserves a pat on the back; however, it still is coming to grips with the need for an...

The new “hot” term among cutting edge lawyers is “cloud data” compliance.  As always, experts often confuse an issue in an attempt to make it impenetrable to clients.  It is a sophisticated marketing ploy used by the legal profession (and I apologize in advance on behalf of lawyers everywhere). While I have little technical expertise (and instead rely on so-called “IT experts”), I have a...

The CFPB is the new regulator on the block.  Republicans in Congress continue to try to strangle the CFPB from exercising its legal authorities.   The re-election of President Obama ensured that the CFPB will continue to enforce federal consumer protection laws. In its first eighteen months, the CFPB has been active, asserting jurisdiction and launching investigations against large banks, student loan companies, mortgage servicing, debt collectors, money transmitters, debt...

It has been ten years since Sarbanes-Oxley was enacted.  No one can argue that Sarbanes-Oxley eliminated the problem of corporate malfeasance. Maybe Sarbanes-Oxley did not address the real problem.  Corporate scandals occur when corporate governance fails to properly supervise corporate operations.  Senior management may try to keep corporate boards in the dark but that can only occur when a corporate board is not following basic governance principles. For...

No one will ever call the last twenty years of television the “golden age of television.”  I have always turned off “reality” television for one reason – it is boring.  For some reason, American television viewers have become less interested in entertainment and more interested in watching so-called “reality” shows which are far from realistic and have no lasting artistic value. While “reality” does not...