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...