Sometimes people cannot see what is obvious.  Sometime businesses cannot react to what is obvious.  Why? Is it institutional ambivalence?  It is the old adage that change is hard?  Businesses are not reacting, are not risk planning, and are not asking a simple question – how should we plan to minimize risk in view of the Obama Administration’s overall enforcement attitude?  What should we as...

On paper it looks easy.  In practice, it is much harder.  In a multi-level organization, how do you encourage internal reporting and make sure important issues are raised to the appropriate level in an organization?  This is an often over-looked issue and one that needs attention. A specific protocol and policy needs to be designed and communicated within the company.  The policy has to reiterate...

Sometimes we are right. Sometimes lawyers give the right advice.  Sometimes we are not hyper-ventilating about risks.  Many of my colleagues lost credibility with corporations when they equated the Bribery Act and the Sword of Damocles.  Everyone knew deep in their hearts that the UK Bribery Act was a risk but was not the end of the world.  It stands that way today and will probably...

The stakes are high.  Everyone knows that.  The FCPA paparazzi likes to write about the importance of creating compliance programs to address the real risk to companies of SEC whistleblowers.  Everyone agrees on the basic list of compliance improvements: changing the corporate culture and seeking to persuade the whistleblower to believe in the corporation’s commitment to responding to the whistleblower’s specific complaint.  All that is...

“There are two sides to every story and then there is truth.”  Mark Twain I admire anyone who waded through the Schuelke-Shields report concerning allegations of prosecutorial misconduct in the Stevens case.  There is no doubt the report is lengthy.  But is it fair?  Was there a true investigation where the facts are gathered and weighed?  Or was there a bias in the report itself...

FCPA commentators enjoy spending their time picking through the bodies of FCPA enforcement actions for trends and patterns.  Sometimes trends are evident and sometimes they are not. One clear picture from FCPA enforcement in 2011 is that successor liability continues to flourish.  FCPA practitioners use the shorthand for this enforcement risk – “buying an FCPA violation.”  The Justice Department and the SEC have held acquiring...

Silicon Valley should take note.  They are ripe for aggressive FCPA enforcement.  The high-tech industry is a risk industry for bribery violations.  Yet some say that the high-tech industry is behind the curve when it comes to anti-corruption compliance. The high-tech industry outsources a significant amount of manufacturing.  They rely on production and related services in countries where the risk for corruption is extremely high,...

The Justice Department has promised to issue guidance on the meaning of the FCPA and the application of the law to infinite permutations in the real world.  As I try to remind everyone, there is little chance that such guidance will resolve many of the more nettlesome issues facing companies, Audit Committees, compliance officers, general counsels and other professionals. The most important point may be the...

For those who like to focus on anti-corruption enforcement and compliance issues, I am sure there are times readers wonder why I post articles about corporate governance. In any company, “tone-at-the-top,” requires good corporate governance.  Senior management can do everything necessary to make a compliance program work but without effective governance at the board level, the tone at the top may be drowned out by other problems...

With all of the dangers surrounding healthcare companies, it is worthwhile to develop a targeted compliance plan focused on your significant risks. It is critical to avoid False Claim Act liability. The government’s HEAT strike force effort has been successful in ferreting out fraud and extracting large recoveries for false claims. But the strike force is using sophisticated data mining and data analysis to identify...