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...

You can count on several important events to occur in the News Corp bribery and hacking scandal.  First, the cover up, or attempts to avoid knowledge and liability, will be worse than the crime itself.  Already there are allegations circling that James Murdoch may not have been candid in responding to Parliament’s questions  Second, News Corp will try to feed the media’s appetite by firing and/or removing...

I have tried to avoid writing about the News Corp scandal.  Everyone is writing about it.  The media frenzy goes on and on, with the Murdoch family, pie throwing, dramatic testimony and the usual configuration of scandal enveloping a political administration. But it is interesting to see in the midst of this controversy that the FCPA has now emerged as a major player in the...

In the past year, the SEC has brought two enforcement actions against independent directors at two publicly traded companies. Historically, the SEC has not targeted public company directors, but  will do so only when the directors “knowingly permit or facilitate” securities violations. The message from the SEC to independent directors is clear — take your position seriously, closely monitor and manage the company’s activities, or face serious enforcement exposure. Independent...

Companies react differently to a set of risks.  In response to the new FCPA enforcement push, some companies have continued with business as usual.  Others have stopped to assess their compliance program, assessed the risk and taken action to shore up their potential risks and exposures. What is surprising is how many companies have chosen to ignore the problem and continue on with business as...

Too many practitioners blindly adhere to well-known internal investigation protocols instead of asking practical questions of whether such procedures are actually needed.  It is easy to follow the prescribed steps.  But sometimes lawyers need to think outside the box and ask the hard questions, especially when it comes to the appointment of special committees. In certain situations an independent board committee may be needed.  One situation which...

I don’t want to make the wrong mistake — Yogi Berra Sometimes the hysteria gets out of control. Lawyers, government enforcers and commentators spreading the word on the Internet seem to fan the flames of excitement. Let’s all take a deep breath and carefully examine the facts. There is no doubt that the Justice Department and the SEC are increasing enforcement of the FCPA. (A...