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...

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...

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 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...

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...

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...

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. ...

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...

The election is over.  Whew!!  Washington, D.C. is slowly getting back to “normal.”  The question now is what changes, if any, will occur in the enforcement arena. There is no question that if Romney had been elected, the enforcement landscape would have changed.  One area that would not have changed – and may never change for the foreseeable future – is FCPA enforcement.  However, in...