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...
The US Criminal Code continues to grow. Each year the Code grows in complexity and sheer number of pages and provisions. As it grows, the boundaries between federal crimes and state and local crimes is blurred. Multiple statutes now apply to any given act and prosecutors have greater discretion to charge defendants with single or multiple crimes. Good government requires that the code be simplified...
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...
I am sorry to burst everyone’s bubble but the Lindsey decision does not reflect any repudiation or cut back in FCPA enforcement. To the contrary, Judge Matz’s decision was in response to “standard” prosecutorial misconduct violations. Nothing in Judge Matz’s decision had anything to do with the Justice Department’s aggressive FCPA enforcement program. Putting all this aside, the Lindsey decision will have an impact on the...
In an interesting article in the National Journal, Jon May argues for FCPA reform. The text of the article and a link is attached: The U.S. Chamber of Commerce is lobbying Congress to amend the Foreign Corrupt Practices Act to lessen the financial burden on U.S. companies doing business in foreign countries. That burden has cost U.S. companies upwards of a trillion dollars and has...
There is a growing political movement against corruption. The trend is unmistakable – from the Arab Spring across the Middle East, to India, to the fall of Berlusconi in Italy, and even to the Occupy Wall Street movement, public anger against corruption has increased. The political toll has been high. Governments have fallen in response to claims of corruption and misconduct. Last week, Transparency International released...
Prosecutors occupy a unique and powerful position in the criminal justice system. They decide what charges to bring, what plea bargain to offer, what evidence to present at trial, and what sentence to request. In making these decisions, prosecutors must strike the difficult balance between zealously pursuing the conviction of the guilty while remaining objective so as not to overlook evidence of innocence or mitigation....
