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...
Graft in India is nothing new. Corruption infects every level of government – from routine ministerial tasks like obtaining a driver’s license to more complex business projects – India has spawned a political movement to clean up government. Small businesses have to pay off police and local constables, health, safety and hygiene inspectors. Parents have to pay school headmasters to make sure thie children are...
Transparency International released its Bribe Payer’s Index Report for 2011. Companies need to incorporate this information into their risk assessment. Most companies rely on the annual Corruptions Perception Index, which ranks all 178 countries. Some of the CPI rankings are questionable – most notably, China is ranked 78 out of 178. That ranking is problematic. Anyone who has had to focus on compliance in China...
It was inevitable. The Justice Department announced it would issue guidance on the FCPA. Lanny Breuer’s announcement reflected the political realities and one other important factor – it is the right thing to do. As I said on numerous occasions, the pattern is similar to DOJ’s handling of the attorney-client privilege waiver/McNulty memo. In order to avoid legislation and to quiet critics, they announce changes in...
The model for corporate governance is changing. Boards are now demonstrating concern for ethical behavior in business strategy, operations and culture. With the new global economy, the board and all the stakeholders are beginning to recognize that environmental, social, and governance are critical to the corporation’s reputation and ultimately, profits. These new concerns are front and center before the board. Directors need to provide well-informed...
