The Justice Department urges companies to voluntarily disclose FCPA violations.  In exchange for a confession, DOJ offers companies two important benefits: (1) absolution for any criminal activity; and (2) a reduced criminal fine. Companies that contract with the federal government face a different challenge – under federal contract law, companies are mandated to disclose criminal activity.  If you want to do business with the federal...

Approximately one-quarter of all companies have become enlightened by creating a board-level Compliance Committee.  I have long been an advocate for the advantages of a Compliance Committee.  To me, it is a no-brainer.  A Compliance Committee can be instrumental in focusing an organization’s compliance efforts.   The Compliance Committee purposes should be to ensure: (1) compliance with the laws and regulations applicable to the Company’s business; and...

Occasionally, I like to write on topics that fall within the category of the obvious.  This is one of those situations.  It comes up very often when examining third-party agents. Bribery is a hard crime to prove.  By its nature it is secretive and it requires a meeting of the minds between the briber and the bribee.  Without the testimony of a participant in the...

Everyone likes to monitor company disclosures for the newest FCPA investigation.  Once disclosed, the FCPA paparazzi lights up with the latest “Kim Kardashian News,” warning everyone who will listen about the dangers of government investigations.  Before the disclosure even occurs, how much “evidence” does it take for the SEC or the Justice Department to open an investigation?  From my experience in representing companies and individuals...

It is tempting to jump on the bandwagon and criticize the Justice Department  as a whole for its recent losses in the Edwards and Clemens cases.  No one was surprised by the results.  I know the prosecutors who worked on both cases and I respect them as true professionals.   The Justice Department is an unprecedented mess.  Alumni from the Justice Department hear from our...

Chief Compliance Officers have a hard enough job without getting into turf battles.  Unfortunately, I hear all too often about the intra-company squabbling among the CCOs, General Counsels and Internal Auditors.  Rarely, have I seen situations where everyone cooperates.  Internal turf wars are not surprising nor are they nothing new.  But when it comes down to overall compliance and staying out of trouble, CCOs and...

As anti-money laundering laws and regulations expand to new entities, compliance officers need to focus on the design and implementation of suspicious activity reporting systems. SARs are at the center of every AML compliance program, and are used to identify and report potential terrorist financing, money laundering, and other financial crimes. The quality of the SAR content is critical to the adequacy and effectiveness of...

The responsibility for almost every act of corporate malfeasance can be laid at the doorstep of the corporate board.  Yet, directors complain about being overwhelmed by their responsibilities and their obligations to supervise and monitor.  This is especially true when it comes to compliance.  Congress has pushed corporate boards to do more and to take more responsibility.  Sarbanes-Oxley led to a radical transformation of board...

Lawyers and the FCPA paparazzi can take something simple and make it complicated.  Take the issue of state-owned enterprises.  The government is going to win its appeal in the Haiti Telco case, just like they won at the district court level in three specific cases, including Haiti Telco.  Why?  The Justice Department has interpreted the FCPA statute correctly.  All you have to do is read...