The FCPA Guidance includes some important reminders for compliance practitioners.  Most significantly, DOJ and SEC want companies to reinvigorate their risk assessment process.  In the absence of an effective risk assessment, companies are likely to allocate compliance resources without proper regard for specific risks.  Such a deficiency will permeate every element of a compliance program.  As a result, companies will develop “paper” compliance programs which...

Healthcare fraudsters do not discriminate between private and public medical insurance.  Fraudsters use similar schemes to defraud Medicare and Medicaid and private insurance companies.  Most healthcare providers bill public and private payers.  For example, a health care provider may be billing Medicare, Medicaid and several private health plans (in-network and out-of-network).  Private insurance companies also provide insurance as Medicare Parts C and D contractors or...

I find the so-called “vampire” cultural phenomena scary – I do not understand what is so entertaining about “ordinary” people who can suddenly turn into vampires, let alone enter into “serious” relationships with each other or with so-called “normal” humans. Maybe I am stuck in the past when “Night of the Living Dead” was more my cup of tea.  Whatever your attitude toward death and...

I am really enjoying reading and re-reading the FCPA Guidance.  It is a fascinating document, well written and chock full of salient points, messages, explicit and implicit. For me, the most important issues are those that are in the so-called “gray area.”  Some of the hypotheticals and the anonymous declinations are easy calls – after reading them, I am positive of the answer.  The descriptions...

The Justice Department and the Department of Health and Human Services have made healthcare fraud a number one priority – it is another example of the synergy of politics and enforcement.  Congress spends more money on prosecution resources and prosecutors use these resources to bring more criminal and civil enforcement actions.   Every few months the government announces another nationwide crackdown and defendants are swept up...

Companies face a lot of risks these days in this enforcement environment.  With the reelection of President Obama, businesses need to plan for four more years of continuing enforcement risks.  While everyone appears to be spending time on FCPA enforcement and compliance, companies need to spend more time in protecting themselves from the False Claim Act.  The government uses the False Claims Act to recover...

The Financial Crimes Enforcement Network (FinCEN) is a new, imposing figure in the world of financial regulatory enforcement.  As originally created, FinCEN served as an information and intelligence support system for other regulatory agencies and federal prosecutors.  That all changed in 2004 when Congress mandated that FinCEN create an Office of Compliance.  Since then, FinCEN’s importance as a regulatory and enforcement agency has grown. The...

In the midst of all this hullabaloo about the FCPA Guidance, an important survey was recently released by Kroll which confirmed my worst fears – despite all of the enforcement actions, all of the FCPA Paparazzi fear mongering, the implementation of the UK Bribery Act, and the global anti-corruption movement, Asian companies are not implementing anti-corruption compliance programs.  In the words of John McEnroe, “You...

The FCPA Guidance could not have been clearer; it could not have offered more incentives and carrots to the business community.  If you adopt and implement an “effective” compliance program, you will receive significant credit for your program which can reduce a penalty, avoid a corporate monitor, or even secure a declination — a free pass — for FCPA violations. The message is clear to...

The US Court of Appeals for the Second Circuit, in a decision issued on December 3, 2012, in United States v. Caronia, threw out a criminal conviction of the defendant Alfred Caronia, a pharmaceutical sales person, for an off-label marketing violation, ruling that the prosecution violated the First Amendment.  (A copy of the decision is here). The Caronia Court ruled in a 2-1 decision that the...