Everyone in the FCPA field knows how to mouth the key words. Practitioners always identify “ongoing assessment” as an essential part of any anti-corruption compliance program. What exactly does that mean? You can define the responsibility for ongoing assessment narrowly or broadly, depending on how much of a commitment you want to make. It is easy to define an ongoing assessment requirement to just an...

The UK Bribery Act is a significant double-edged sword – one the one hand, the Serious Fraud Office (SFO) can enforce the strict liability offense of failing to prevent bribery; on the other hand, the putative defendant company can raise the defense that it had “adequate procedures” in place to prevent bribery. All of this begs the question – what exactly will “adequate procedures” look...

 In this new era of UK Bribery Act enforcement and compliance, companies need to re-examine their existing Directors and Officers (D&O) insurance to make sure it covers UK Bribery Act liability. Most important for compliance purposes is the new section 7 of the UK Bribery Act which establishes a strict liability corporate offense for failure to prevent bribery. The only defense for the company is...

I wanted to apologize to my blog readers for the absence of new material in the last few days. I was in China for business and quickly learned that Google services, such as this blog, are blocked. I learn something new every day and this was my first trip to China, which I found to be an incredibly interesting and exciting country. But more on...

As more companies seek to enter new markets in China, Brazil, India and other emerging economies, they frequently do so by entering into joint ventures. Joint ventures vary in their form.  Some are as simple as a contract for a specific project, and some are complex involving the creation of a new entity with new organizational structures.  Whatever their form, FCPA liability for joint ventures...

The landmark decision — In re Caremark International Inc. Derivative Litigation — has even more implications in today’s aggressive FCPA enforcement environment.  In Caremark, the Delaware Chancery Court ruled that the failure of the directors to ensure that it had access to adequate compliance information and reporting systems could result in the director being held liable for losses caused by non-compliance. Corporate Boards that fail...

Silicon Valley should take note.  They are ripe for aggressive FCPA enforcement.  The high-tech industry is a risk industry for bribery violations.  Yet some say that the high-tech industry is behind the curve when it comes to anti-corruption compliance. The high-tech industry outsources a significant amount of manufacturing.  They rely on production and related services in countries where the risk for corruption is extremely high,...

Law enforcement’s ability to detect crimes is improving.  FinCEN’s growing role in detecting foreign corruption and monitoring of financial transactions is a perfect example. In a recent annual report on Suspicious Activity Reports, SAR Activity Review, which focused on Foreign Corruption,  Copy (Here), FinCEN demonstrated its growing role in foreign corruption enforcement.  This is no surprise.  FinCEN is the Treasury Department’s lead agency in fighting...

A recent New York Times article titled, As Wall St. Polices Itself, Prosecutors Use Softer Approach, (here), argued that federal prosecutors have been going “soft” against Wall Street by increased use of “deferred” or “non-prosecution” agreements.  The article misses the point and reflects a simplistic view of criminal prosecutions. A criminal conviction against a corporation has significant implications.  The Arthur Anderson case was the worst case scenario.  After it was convicted, the company went out...

Tonight is the premiere of the new season of Curb Your Enthusiasm — the Eighth season.  For those who have not watched it before, Larry David, the star of the show was the creator and producer of Seinfeld.  He is hilarious and the show is extremely funny. In season eight, the characters move to New York for some more adventures. Larry David lives in a...