Companies are appropriately concerned about additional enforcement actions from SEC whistleblowers. The SEC recently issued its whistleblower rules. The new rules provide for a bounty or award to eligible whistleblowers who provide: “original information;” concerning a violation of federal securities laws; which results in a successful (judicial, administrative or related) enforcement action resulting in a fine or penalty (including disgorgement) of at least $1 million....

A company’s commitment to anti-corruption compliance can be quickly tested by examining its contracting practices and its use of anti-corruption provisions. If anti-corruption compliance is a priority, the company’s contracts will include basic protections. As more and more companies try to improve their anti-corruption compliance programs, this is an area which is relatively easy to change. Contract “templates” are a “dirty” concept. It is fine...

While everyone likes to write about the FCPA, the UK Bribery Act and other hot topics, False Claims Act enforcement and litigation continue to increase and the size of money awards grow and grow. The Justice Department likes to trumpet its awards on the FCPA, and they frequently cite 2010 as a banner year with fines of over $1 billion.  But imagine if FCPA fines were...

Brazil is frequently identified as one of the most attractive countries for investment and expansion. Brazil is one of the world’s leading economies: one of the top-10 in the world based on GDP. The country is rich in opportunities and more foreign companies are looking to expand into Brazil because of its potential lower costs for business operations. Economic opportunities abound well beyond oil and...

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...

The UK Bribery Act is a significant double-edged sword – one the one hand, the Serious Fraud Office (SFO) can enforce the strict liability offense of failing to prevent bribery; on the other hand, the putative defendant company can raise the defense that it had “adequate procedures” in place to prevent bribery. All of this begs the question – what exactly will “adequate procedures” look...

 In this new era of UK Bribery Act enforcement and compliance, companies need to re-examine their existing Directors and Officers (D&O) insurance to make sure it covers UK Bribery Act liability. Most important for compliance purposes is the new section 7 of the UK Bribery Act which establishes a strict liability corporate offense for failure to prevent bribery. The only defense for the company is...

I wanted to apologize to my blog readers for the absence of new material in the last few days. I was in China for business and quickly learned that Google services, such as this blog, are blocked. I learn something new every day and this was my first trip to China, which I found to be an incredibly interesting and exciting country. But more on...

As more companies seek to enter new markets in China, Brazil, India and other emerging economies, they frequently do so by entering into joint ventures. Joint ventures vary in their form.  Some are as simple as a contract for a specific project, and some are complex involving the creation of a new entity with new organizational structures.  Whatever their form, FCPA liability for joint ventures...

The landmark decision — In re Caremark International Inc. Derivative Litigation — has even more implications in today’s aggressive FCPA enforcement environment.  In Caremark, the Delaware Chancery Court ruled that the failure of the directors to ensure that it had access to adequate compliance information and reporting systems could result in the director being held liable for losses caused by non-compliance. Corporate Boards that fail...