One of the Department’s Crown Jewels is its Health Care Fraud Initiative which primarily focuses on Medicare and Medicaid fraud and Off-Label Promotion cases. The False Claims Act is the principal tool used by the Justice Department. For FY 2011, the Justice Department recovered over $3 billion in fraud cases. Approximately $2.8 billion were the result of whistleblower complaints, an increase of $500 million over...
In an ideal world, the criminal justice system should be immune from politics. That is wishful but unrealistic thinking. Unfortunately, our criminal justice system has always been stretched at times to further one political agenda over another. That is not meant to condemn the entire judicial system, just what I would call the excesses – those prosecutions which are politically motivated and which can be...
The FCPA has broad international application. That does not mean that the United States has authority over every individual on the planet Earth. In order to establish jurisdiction over a foreign agent of a U.S. company or non-U.S. issuer, a foreign entity must commit an act in furtherance of an FCPA violation “while in the territory of the United States.” 15 U.S.C. § 78dd-3. The...
The fear factor for FCPA enforcement is a criminal case brought by the Justice Department and a parallel civil case brought by the SEC. In the last few years, collateral litigation filed by shareholders has increased against companies who are alleged to have violated the FCPA. The FCPA does not explicitly create a private right of action against companies. That has not stopped plaintiffs’ bar...
Last week I spoke with Rob Levey from Catelas, a quality provider of organizational analysis, compliance and internal investigation software and services. Rob has posted the interview on the Catelas Blog — here is a link to his post and the interview. Hope you find it informative. – http://wp.me/p1SP9H-3m
The idea of wiretaps in corporate board rooms sends shivers down every director’s spine. It should. The Justice Department no longer views white collar crime as different than organized crime, gangs or drug trafficking. What that means from a practical standpoint is that federal agents are using the same investigative tactics as they have historically used against organized crime and drug traffickers. For companies...
As part of my New Year’s celebration, I thought it would be good to outline some predictions for FCPA events and trends in 2012. The Justice Department’s FCPA enforcement program will continue. The business community will complain about DOJ’s policies. There will be no significant changes in enforcement priorities or in the operation of the voluntary disclosure procedure (which needs to be reviewed and reformed). ...
Under the FCPA, public companies are required to maintain accurate books and records and an effective system of internal controls. Enforcement and compliance efforts focus more on anti-bribery issues than books and records and internal controls. If bribery occurs, a books and records violation will occur. Books and records enforcement is always in hindsight and pegged to bribery conduct. The FCPA requires every issuer to...
The most common refrain in compliance parlance is “tone-at-the-top.” It may be overused. Where the rubber meets the road for every compliance program is in the risk assessment. Howard Sklar had a recent post on the subject emphasizing the importance of a continuous risk assessment. He was right on point. Building an effective risk assessment model and continuous review process is essential to overall compliance...
The hot selling topic these days is anti-corruption compliance. All the usual buzzwords are floated around with anti-corruption compliance – risk assessments, financial controls, corporate integrity, training and communication and tone-at-the top. The compliance community, however, is not doing its job. They are focusing on too narrow a topic. Compliance can and should address all the risks facing an organization. As a starting point, the...
