The Justice Department is making sure that 2012 will be a very interesting year in FCPA enforcement.  Two new and significant trends, which the Justice Department telegraphed, are now a reality. First, and most significantly, the Justice Department is moving its FCPA enforcement program more and more toward the Antitrust Division’s model.  What do I mean?  In the antitrust context, the Justice Department frequently secures...

[T]here are known knowns; there are things we know we know.  We also know there are known unknowns; that is to say we know there are some things we do not know.  But there are also unknown unknowns – there are things we do not know we don’t know. — former Secretary of the Defense, Donald Rumsfeld It is getting pretty crowded these days out in...

For those who like to focus on anti-corruption enforcement and compliance issues, I am sure there are times readers wonder why I post articles about corporate governance. In any company, “tone-at-the-top,” requires good corporate governance.  Senior management can do everything necessary to make a compliance program work but without effective governance at the board level, the tone at the top may be drowned out by other problems...

It is surprising how often companies rely on outside auditors to detect and then investigate suspected bribery.  I have nothing against outside auditors — the Big 4 and other auditing companies are indispensable as part of an internal review team.  But companies are making a strategic error when they rely solely on auditors to review the company books, identify potential suspicious payments, and then help the company...

The Justice Department has promised to issue guidance on the meaning of the FCPA and the application of the law to infinite permutations in the real world.  As I try to remind everyone, there is little chance that such guidance will resolve many of the more nettlesome issues facing companies, Audit Committees, compliance officers, general counsels and other professionals. The most important point may be the...

Prosecutors are under the gun – and rightfully so.  Whether they have engaged in deliberate misconduct or just plain sloppy, there is no excuse for their recent conduct.  What is equally troubling is how prosecutors are stretching the law to achieve unfair results.  As a former supervisor used to tell me in the US Attorney’s Office, there are plenty of cases to bring and no reason...

With all the hysteria surrounding anti-corruption compliance programs, companies try to react quickly, adopt a compliance program and then implement it.  If done too quickly, it is certain to “fail.” An anti-corruption program needs to be phased in, while assuring adequate buy-in, modification and monitoring.  With a phased-in and continuous monitoring approach, a compliance program will be securely established and in the end, more successful. ...

I wish I didn’t know now what I didn’t know then — Toby Keith  It is an axiom of criminal law – punishment is meted out to punish wrongdoers when they consciously engage in wrongful conduct. In the white collar context, an action becomes criminal when the actor possesses the requisite state of mind, i.e. the actor knows what he or she is doing is...