The headlines these days focus on the SEC whistleblower rules and the implications for corporations.  While the whistleblower rules are important and justify vigilant compliance efforts, there is a more significant, and possibly damaging, trend for FCPA enforcement. Corporations now have to consider the risk that the government will conduct wiretaps of target telephones.  In the Shot Show sting, the government demonstrated it was willing...

With the new SEC whistleblower rules, companies now face a difficult decision of whether and when to disclose to the SEC and DOJ potential FCPA violations. The issue is not new but the dynamic will certainly be different. For example, when it is clear that whistleblower intends to report allegations to the SEC, the company needs to consider whether to make a pre-emptive report to...

For those companies dedicated to compliance, the first and most critical step is a commitment to empower its compliance office.  A company must assign adequate personnel and allocate adequate resources to fulfill its mission.  An effective compliance officer must be regarded as equal to, or even senior to, the company’s Chief Financial Officer or General Counsel.  Gone are the days when compliance offices are a...

Everyone in the FCPA field knows how to mouth the key words. Practitioners always identify “ongoing assessment” as an essential part of any anti-corruption compliance program. What exactly does that mean? You can define the responsibility for ongoing assessment narrowly or broadly, depending on how much of a commitment you want to make. It is easy to define an ongoing assessment requirement to just an...

As promised, I wanted to address some of the nuts and bolts of a due diligence review of a third party agent.  The focus of a due diligence inquiry is “reasonable inquiries” to identify and assess the risks that a third party will engage in bribery.  Of course, the specific aspects of the inquiry will change depending on the particular facts surrounding the third party,...

The kind of man who wants government to adopt and enforce his ideas is always the kind of man whose ideas are idiotic – H. L. Mencken As the calls for FCPA reform grow louder, I thought it would be timely to examine one of the more significant FCPA reform proposals: Robert W. Tarun and Peter P. Tomczak, Baker & Mckenzie partners authored “A Proposal for...

Companies need to conduct a reality check of their internal controls.  Of course, Sarbanes-Oxley imposed new and significant requirements on companies to implement adequate internal controls.  Companies responded quickly to the SOX requirements.   There are certain basic requirements which need to be implemented.  Assuming that a company is interested in preserving documents and has that capability, there are a number of steps a company can take...

The importance of  anti-corruption training is often understated in comparison to other elements of a an anti-corruption compliance program.  Perhaps we should start with the term “training” and broaden the concept to what it really is — “communicating, listening and responding.”  For compliance officers and staff, training programs is the one critical opportunity to educate, listen and learn from the audience.  It is a two-way communication process,...

In-House counsel and corporate compliance officers dodge bullets everyday as they stare down the barrels of aggressive prosecutors, regulators, civil litigants, whistleblowers, disgruntled employees and shareholders prodded by trial attorneys to file derivative suits at the drop of a hat. In the face of all of these risks, internal investigations have become commonplace and a standard defensive tactic for a company to regain some leverage,...