It is unfortunate but true – compliance actors in a company can sometimes engage in internal turf battles which undermine overall compliance efforts. Every organization suffers from internal inefficiencies caused by personalities, protecting spheres of influence and sometimes, even organizational insecurities. Without trying to insult general counsels and even compliance officers, the internal auditor in a company is uniquely positioned to identify corruption risks. All...

In the aftermath of the debt ceiling fiasco, Congress’ reputation took another blow in the court of public opinion. Even before the debt ceiling brinkmanship, Congress’ record on ethics was getting trampled through the mud yet again. Washington is a city filled with double standards and perhaps there is no better one when you compare the new and aggressive enforcement policies which have been launched...

With the recent Diaego settlement of FCPA charges, the question arises – when does the SEC act while the Justice Department declines to act? More accurately, when does the SEC see an FCPA violation which the Justice Department does not see? The easiest answer to the questions is burden of proof: The SEC has civil responsibility, meaning a preponderance of evidence; and the Justice Department...

We always hear about the Corporate Compliance Officer, the Audit Committee or the Compliance Committee, if a company has created one, and how they are all supposed to act.  But let’s look at the most important actor of them all — the Corporate Board.  Of course, there are numerous corporate committees which have important responsibilities, but in the end, when the rubber meets the road,...

For “financial institutions” (banks, mutual funds and broker-dealers), AML compliance requirements are established by statutes and regulations implemented by the Department of Treasury.  These entities are required to adopt a written AML program that includes policies and procedures reasonably designed to detect and cause the reporting of suspicious transactions, designation of an AML compliance officer, regular and independent auditing/testing of the AML program; and a...

In the Bush Administration, the Justice Department turned deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs)into relevant terms for defense counsel.  Now, even the SEC has joined the club entering into the first DPA and NPA. The distinction between a DPA and an NPA is critical — the DPA invokes the Court’s supervisory jurisdiction and requires the Justice Department to lodge a criminal information to charge the...

The News Corp scandal has focused attention on the interpretation of the FCPA element which requires that bribes be paid (or attempted) to “obtain or retain business.”  Some commentators have claimed that the News Corp facts cannot satisfy this element because the bribes paid to police officers were made for “information.”  In the past few years, the SEC and DOJ have broadly interpreted the “obtain or...

More multinational companies are expanding into Russia.  China has become passe.  Years ago, every company was considering expanding into China.  Now, Russia is the new frontier.  India is a close second on the frontier competition.     China and India pose real corruption risks.  Corruption is built into China’s government and social fabric.  India has extensive layers of government regulation and market structures which increase corruption risks. Russia presents...

While everyone is focused on anti-corruption enforcement and compliance issues, global antitrust enforcement continues as a significant risk.  Over the last few years the most important trend has been the rising role of European antitrust enforcement against cartels and imposition of higher fines.  Even with this steady rise in European enforcement, US criminal antitrust enforcement has returned in 2011 from a slower 2010.   The pace...

“You don’t need a weatherman to know which way the wind blows” –  Subterranean Homesick Blues, Bob Dylan The Justice Department has taken some serious hits lately — some have been fair and some are not accurate.  All in all, the trend is not good.  If the buck truly stops with the Attorney General, then he is responsible for the “tone-at-the-top.”  DOJ’s missteps lately are alarming.  After securing the FCPA...