The goal of enforcement is to deter misconduct and promote compliance.  That connection is not always clear.  In the FCPA context, there is ongoing debate about the importance of prosecuting individuals for FCPA violations to deter corruption, and the impact that a corporate compliance defense would have on overall compliance efforts.    In an interesting article (here), Cartels, Compliance and What Practitioners Really Think About...

It is difficult to build a culture of compliance. One of the biggest challenges facing a company is to transform the relationship between employees and the legal/compliance staff.  Employees avoid in-house counsel and compliance officials because they are viewed as “deal killers,” or people who “Just Say No.”  Employees know that dealing with lawyers or compliance staff can only lead to trouble, discipline or slowing...

Technology has been a boon for productivity.  Social media has replaced many traditional advertising and information sources.  Some enjoy all the new gadgets, technologies and instant communications.  Others do not.  Whatever your view is, it is clear that social media has increased risks of litigation and enforcement.  Sometimes the risks of enforcement come from unlikely actors.  In the social media context, the National Labor Relations...

You can always count on Howard Sklar to make things interesting.  His latest article, Who is It Okay to Bribe? (Here), is another in the line of provocative posts.  Howard always gets people to think.  But without taking Howard on too strongly (let’s face it, I am no FCPA Professor, or Tom Fox, who both enjoy taking Howard on), his last column was more of...

In Part II of Best Practices for Internal Investigations, I examine how to design an appropriate investigative plan.  While it is hard to predict at the outset the course that an internal investigation will take, a preliminary investigation plan is an important management tool.  There are several helpful steps to take: 1.  Define the objective of the investigation and the most efficient way to achieve...

I thought I would take two posts to examine best practices for initial stages of internal investigations: Part I examines the launch of an internal investigation.  Part II examines initial internal investigation plans.  The initial steps in handling an internal investigation are critical to the ultimate success of the inquiry.  Vast numbers of articles have been written on how to conduct internal investigations.  More attention...

Join Me for A Mid-Year FCPA Update –July 11,2012 at 1 pm EST, sponsored by the Association of Certified Financial Crime Specialists. FCPA enforcement continues at an aggressive pace. Severalmajor cases are expected to be resolved in 2012.  Akready this year there have been significant cases, including the first declination of prosecution of a company because of its compliance program.  Recent surveys show that about...

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Government prosecutors have launched a new initiative aimed at protecting intellectual property.  The Economic Espionage Act criminalizes the theft of trade secrets.  Congress passed the Act in 1996 to protect United States corporate trade secrets.  Since it as enacted in 1996 and continuing until 2011, the government only prosecuted eight cases under the Act.  In the last year, the government has steadily increased the use...

The Justice Department’s recent enforcement action against Smith & Nephew underscored an important point – companies can be responsible for FCPA violations committed by distributors of the company’s products.  FCPA compliance professionals already knew that the FCPA can apply to distributors. Reams of paper have been used to explain due diligence procedures for third party agents.  These same procedures should be applied to distributors and...