My perspective may reflect my age. Prosecutors are pushing the envelope, bringing cases which are not carefully thought out, built on novel (and sometimes unfair) theories, and reflect poorly on prosecutorial discretion. I am not talking about claims of “prosecutorial misconduct,” but I am referring to the type and quality of cases prosecutors are bringing. Prosecutors’ set priorities within a political framework. No one can...
FCPA and UK Bribery Act enforcement is about to hit the private equity industry. The Justice Department, SEC and the UK’s Serious Fraud Office have made it clear that they intend to bring down the hammer of anti-corruption enforcement. The anti-corruption cottage industry continues to remind the industry, and lawyers are out beating the drums. The private equity industry better take note. The greatest risk...
When it comes to documentation, Tom Fox likes to repeat himself — “documentation, documentation and documentation.” Tom and I have repeated this mantra over and over as a critical requirement for any compliance program. Documentation of decision-making is critical to protecting the company, especially in protecting a company and individuals from criminal liability. In the absence of a contemporaneous record of why a company made a...
The controversy surrounding corporate criminal liability is not just limited to FCPA prosecutions. It is an age old debate and it is worth reviewing the issue, especially as the Department of Justice continues to mount large-scale prosecutions against companies for FCPA violations, health care fraud, off-label marketing and other criminal charges. The doctrine of respondeat superior is the theoretical underpinning for holding companies criminally liable...
The issue has been joined – should the FCPA be amended in order to promote US business interests? A number of NGOs joined together to announce their opposition to any relaxation of the FCPA. International anti-corruption organizations are hoping they can slow down organized business interests. The Chamber of Commerce continues to push its reform agenda. The Justice Department is playing it smart – promising...
Aside from FCPA enforcement, the Justice Department proudly points to its aggressive enforcement against insider trading. The US Attorney’s Office in the Southern District of New York has used aggressive tactics to uncover insider trading schemes, particularly in the private equity and hedge fund industry. The FBI has employed wiretaps, undercover recordings, search warrants, and ambush interviews to build cases which have sprawled across the...
When conducting an internal investigation, it is important to consider the Justice Department’s ability to gather and compel the production of evidence in foreign countries. It is a strategic issue which is at the forefront of every FCPA internal investigation. This issue is particularly important when dealing with third-party agents who may be involved in foreign bribery. Assuming that DOJ has jurisdiction over a foreign entity, there are a...
Bringing It All Back Home – Bob Dylan FCPA internal investigations pose unique procedural and substantive challenges because the inevitable focus of the investigation lies in acts committed in foreign countries. Even assuming your internal investigation reveals foreign bribery activity and you are able to collect the evidence surrounding such conduct, the delicate and critical aspect of an internal investigation will focus on what did...
The stakes are high in every FCPA internal investigation. The reporting relationship between the investigator and the corporate board is a minefield which has to be navigated carefully to protect the company and the individual directors. It is important for investigators to carry out their assignment with an appreciation of the board’s responsibilities to gather, review and assess the facts, and make critical decisions on...
I wanted to devote this week to a series of posts on FCPA internal investigations. Given the importance of this issue, I expect to return to this topic in the future. There are a number of former prosecutors who are now in private practice and are well equipped to conduct internal investigations. Many federal prosecutors are talented investigators who are able to interview witnesses, review documents, and...
