Sometimes too much of a good thing is a bad thing.  We spend so much time advocating for compliance programs that we forget to remind companies that sometimes too much compliance is not a good thing.  What do I mean by this? Simplicity is a good thing.  The true measure of intelligence is the ability of someone to take a complex subject and explain it...

It is no surprise that corporate boards are paying more attention to risk management.  It is about time but change is slow to come in corporate board rooms.  The reasons for the change in corporate attitude is not just an unprecedented aggressive enforcement environment.  It reflects the confluence of public attitudes toward business in the wake of the financial crisis and economic meltdown, political forces...

You win some and you lose some.  A prosecutor or litigator who tells you his tor her trial record is not a real litigator, they are an insecure litigator.  The fact they keep track is a tip off – time to run away and find someone else.  The great litigators win cases and they lose cases.  If they tell you otherwise, do not hire them. ...

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...