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...

Health care fraud enforcement continues to rack up successes.  Prosecutors are employing aggressive investigative techniques and using non-health care fraud related statutes to prosecute individuals.  At the core of the government’s enforcement strategy is effective interagency collaboration through the Medicare Strike Force and Health Care Fraud Prevention Enforcement and Action Team (HEAT), which consists of representatives from the Department of Justice (DOJ), the Federal Bureau...

Everyone in the compliance community likes to cite the required elements of an anti-corruption compliance program.  The Justice Department and the SEC have described the required elements over and over again in Schedule C of their settlement papers.  Forgive me for deviating a little bit from their script but I have a different take on the principles and the practical steps that are required to...

The term “due diligence” is bandied about among compliance professionals.  Let’s stop a moment and consider the different contexts.  Anti-money laundering “due diligence” is a lot different than FCPA “due diligence.”  FCPA due diligence relates to review of third-party agents for corruption risks or potential acquisitions or joint venture partners for corruption risks. AML due diligence relates to customers (“Know Your Customer” or “KYC”), and...

Everyone in the compliance industry acts like they understand the concept of “transaction testing.”  Next time you are in a meeting and the term comes up; ask one of the nodding heads to explain what it means.  I bet they start to choke up, or you might hear an explanation like “It is when you test your transactions.” In fact, transaction testing is an important...

 Who would have ever guessed that the largest corporate penalty paid in 2012 would be an OFAC enforcement action.  The Justice Department has many major FCPA enforcement actions in the queue awaiting approval and public release, but it will be hard to match the penalty paid by ING Bank for $619 million.  Two days after the ING Bank settlement was announced, OFAC also settled a...

You have to admire anyone who is responsible for export control compliance.  They are brave people.  It is a wonder that they can keep everything straight. The Obama Administration, to its credit, has been trying to reform the export control system.  It is about time that someone tackled this mess.  The guiding principle is to try and separate the wheat from the chafe – tighten...

It is not hard to read the tea leaves when it comes to government criminal and civil enforcement programs.  Prosecutors and regulators try to jawbone the industry into compliance by threatening criminal and/or civil enforcement, making examples of industry players by prosecuting a handful of them for criminal and/or civil infractions, and then pointing to those prosecutions as a way to encourage industry compliance.  Sometimes...

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...