The FCPA, which was passed in 1977, contains an exception for facilitating payments.  The exception was expanded and made more explicit in the 1988 amendments to the FCPA – to include a facilitating or expediting payment made to “expedite or secure the performance of a routine governmental action.” With the global anti-corruption movement, there has been a marked trend against allowing facilitation payments.  The OECD...

Last year, the Securities and Exchange Commission (SEC) sent shock waves through the securities industry when it issued inquiry letters to financial institutions, and private equity and hedge funds focusing on anti-corruption compliance.  This year, Richard Alderman, the Director of the Serious Fraud Office in the United Kingdom, increased industry concern when he gave a series of speeches outlining the enforcement focus of the SFO against the private equity industry....

It is surprising that companies have not really instituted more procedures for conducting due diligence of third parties.  The 2011 Deloitte Anti-Corruption Practices Survey has some surprising results.  Corporate leaders were pessimistic about their company’s anti-corruption compliance.  The four most cited reasons for this lack of confidence is the absence of a stand-alone anti-corruption policies; infrequent anti-corruption audits; lack of due diligence and monitoring of...

The Securities and Exchange Commission (SEC) has focused its regulatory and enforcement efforts on interactions between financial institutions, investment funds and private equity funds, and foreign sovereign wealth funds.  The SEC’s action is predicated on a legal determination that managers at the sovereign wealth funds fall under the FCPA’s definition of a “foreign official.”   As of July 2011, sovereign wealth funds totaled $4.7 trillion under asset management, an...

The pendulum is swinging again – not by Vincent Price or Edgar Allen Poe – but federal judges are swinging it again.  The problem of sentencing disparities is at the forefront.  DOJ has weighed in and is complaining about disparate treatment of equally culpable offenders across districts.  In particular, the Department is concerned about white collar criminals and the increasing sentencing disparities of these offenders....

I am happy to announce the release this week of my book   Corruption, Crime & Compliance!!  My mentor and friend, Judge Stanley Sporkin, the ‘father of the FCPA,’ wrote the foreword. “Michael Volkov’s book is a compilation of articles on a number of subjects important to advising clients how to stay out of trouble. He is a prolific writer and I can say without question, we...

Corruption, Crime & Compliance is happy to welcome Prof. Rob Steinbach as a guest author for a post on preparing a witness for deposition. I recall once, as a junior attorney, sitting in a conference room with a partner who was preparing a witness for a deposition in a complex securities matter.  The partner told the would-be witness that we would be treating the preparatory...

As I have said on many occasions, there are many risks when in-house or outside counsel conducts an internal investigation.  Just to give you one nightmare scenario, the failure to give proper Upjohn warnings can be catastrophic to a company and individuals who are interviewed. The internal investigation is conducted on behalf of a corporation.  The interests of the corporation can be different from those...

The FCPA trade press knows how to turn a molehill into a mountain.  No insult is intended.  The FCPA industry needs to get a grip and focus on what is important. Take for example the reporting of the recent FCPA conference in Washington, D.C. at which there was some big news and some not so big news which is characterized as “news.” AAG Breuer’s announcement...

It is important for every company to have a Compliance Committee at the Board level.  While only about one-third of all companies have a Compliance Committee, I expect more companies to move compliance obligations from their Audit Committees to newly-established Compliance Committees.  As compliance becomes a higher priority, a separate Compliance Committee will enhance a company’s overall compliance performance. In almost every significant FCPA enforcement...