Last week, the SEC finally resolved two major rulemaking proceedings – the conflict minerals and the extractive industry payment rulemaking proceedings.  The business community vehemently opposed the new rules, citing the billions of dollars which businesses will have to spend to comply.  Nonetheless, the SEC adopted the new requirements with modifications to try and address specific business concerns.  The rules will be challenged in the...

Everyone is full of advice on how to structure compliance programs.  Ask anyone in the FCPA paparazzi and they will tell you exactly what you need to do to make sure you have an effective anti-corruption compliance program.  There are as many answers as there are compliance professionals. I can assure you that every compliance professional has forgotten the missing link – not Curly Q...

The drumbeat of criticism continues – companies pay huge fines for illegal behavior and no individuals are prosecuted for criminal offenses.  The political left and right are there to criticize every prosecutorial decision.  Headlines are made when a case is closed without individuals being prosecuted and then politicians and political interest groups line up to launch new criticisms.  I have a lot of sympathy for...

How do you define and measure compliance success?  We spend so much time defining what can go wrong, what has gone wrong, and what may go wrong – we lose sight of some of the positive impacts of a fresh compliance strategy.  It is too simplistic to just say that if you are not caught, you are in compliance.  I would suggest a broader definition. ...

Companies which have adopted anti-corruption compliance programs for the first time face a significant set of challenges relating to past conduct.  The questions can be very tricky – Do you investigate past conduct for potential improper payments?  Should existing third parties be subject to due diligence review or should such a review wait for renewals of existing arrangements? The statute of limitations for FCPA criminal...

Whenever I read about the latest enforcement action – whether it is FCPA, export controls and sanctions, health care fraud, off-label marketing, or False Claims Act – my first question is always what role, if any, did the board of directors’ play in the compliance failure? The buck starts and stops with the board of directors.  Compliance meltdowns do not occur unless the board is...

It is important to weigh enforcement risks with perspective.  The Justice Department’s biggest FCPA enforcement year was approximately $1.4 billion in 2010.  The Justice Department doubled that amount in the off-label marketing prosecution of GlaxoSmithKline (GSK) which totaled $3 billion in one case, which consisted of a $1 billion criminal fine and $2 billion in civil penalties.  GSK paid these penalties for off-label promotion of...

The system of national banks and federal thrifts is returning to good condition, not perfect, but good.  Balance sheets are stronger, assets are more stable, and earnings are definitely on the rise, particularly in comparison to the depths of the financial crisis in 2009.  Bank lending is rising slowly and should improve.   While the general state of the industry has improved, the financial industry faces...