The Securities and Exchange Commission (SEC) has focused its regulatory and enforcement efforts on interactions between financial institutions, investment funds and private equity funds, and foreign sovereign wealth funds.  The SEC’s action is predicated on a legal determination that managers at the sovereign wealth funds fall under the FCPA’s definition of a “foreign official.”   As of July 2011, sovereign wealth funds totaled $4.7 trillion under asset management, an...

The pendulum is swinging again – not by Vincent Price or Edgar Allen Poe – but federal judges are swinging it again.  The problem of sentencing disparities is at the forefront.  DOJ has weighed in and is complaining about disparate treatment of equally culpable offenders across districts.  In particular, the Department is concerned about white collar criminals and the increasing sentencing disparities of these offenders....

I am happy to announce the release this week of my book   Corruption, Crime & Compliance!!  My mentor and friend, Judge Stanley Sporkin, the ‘father of the FCPA,’ wrote the foreword. “Michael Volkov’s book is a compilation of articles on a number of subjects important to advising clients how to stay out of trouble. He is a prolific writer and I can say without question, we...

Corruption, Crime & Compliance is happy to welcome Prof. Rob Steinbach as a guest author for a post on preparing a witness for deposition. I recall once, as a junior attorney, sitting in a conference room with a partner who was preparing a witness for a deposition in a complex securities matter.  The partner told the would-be witness that we would be treating the preparatory...

As I have said on many occasions, there are many risks when in-house or outside counsel conducts an internal investigation.  Just to give you one nightmare scenario, the failure to give proper Upjohn warnings can be catastrophic to a company and individuals who are interviewed. The internal investigation is conducted on behalf of a corporation.  The interests of the corporation can be different from those...

The FCPA trade press knows how to turn a molehill into a mountain.  No insult is intended.  The FCPA industry needs to get a grip and focus on what is important. Take for example the reporting of the recent FCPA conference in Washington, D.C. at which there was some big news and some not so big news which is characterized as “news.” AAG Breuer’s announcement...

It is important for every company to have a Compliance Committee at the Board level.  While only about one-third of all companies have a Compliance Committee, I expect more companies to move compliance obligations from their Audit Committees to newly-established Compliance Committees.  As compliance becomes a higher priority, a separate Compliance Committee will enhance a company’s overall compliance performance. In almost every significant FCPA enforcement...

The message gets repeated and repeated – every company has to protect itself from an FCPA enforcement action by implementing a compliance program.  The Department has accomplished a significant goal – its aggressive FCPA enforcement program has deterred companies from violating the FCPA and spurred companies to increase compliance. The ripple effect of the Department’s aggressive program, combined with international efforts to reduce corruption, has...

The FCPA means what it says and says what it means.  At least according to the Justice Department.  Much of the guidance surrounding the FCPA derives from settlements reached by the Justice Department and companies.  Court review of these settlements has been limited.  To some, the courts have abdicated their role.  Practitioners read through the settlement filings to try and figure out where the Justice...

A few things in the FCPA enforcement arena for 2011 are clear – the Justice Department and the SEC are not going to come close to repeat their 2010 stats –$1.6 billion in fines and penalties.  DOJ prosecutors have been tied up in trials and unable to move ongoing investigations as fast as usual.  As a result, DOJ prosecutors are not able to follow up on outside counsel and internal investigations.   But...