The Justice Department and the Securities and Exchange Commission continue to focus on the gatekeepers — in-house counsel, internal auditors and compliance officers.  Underlying this strategy is the government’s desire to convert these officials into government”agents” to report suspected violations of the law.  The government does not have a healthy respect for the attorney-client privilege.  To the contrary, the government regularly argues that corporate actors have a...

Many FCPA practitioners have predicted FCPA enforcement actions in the private equity industry.  This has been long-predicted and many say, long overdue. Anti-corruption enforcement against the private equity industry has to be considered in the context of the SEC’s focus on the private equity industry.  The SEC has sent the private equity industry a wake up call and one thing is for sure – the...

Once in a while it is important to take a step back and look at overall trends.  Too many lawyers in Washington D.C. suffer from myopia and fail to see important trends outside their particular area of expertise.  The picture in Washington, D.C. is unmistakable.  We are in an era of unprecedented civil and criminal enforcement.  In my 30 years of practicing law, I have never...

The drumbeat continues for reform.  The Justice Department has bought itself time but is now feeling the pressure on its upcoming guidance.   Do not hold your breath when it comes to the FCPA Guidance.  It will not contain any big surprises — it may restate a lot of the law and the principles of prosecution but it will not reflect any significant changes in the overall...

I am happy to announce that I have joined a new firm, LeClair Ryan.  I am very excited about the opportunity.  LeClair Ryan is an innovative national firm.  It has 21 offices, and I hope to work with LeClair Ryan to open a new office in San Diego. LeClair Ryan is extremely supportive of my blog — and I expect to post contributions from other LeClair...

Sometimes people cannot see what is obvious.  Sometime businesses cannot react to what is obvious.  Why? Is it institutional ambivalence?  It is the old adage that change is hard?  Businesses are not reacting, are not risk planning, and are not asking a simple question – how should we plan to minimize risk in view of the Obama Administration’s overall enforcement attitude?  What should we as...

On paper it looks easy.  In practice, it is much harder.  In a multi-level organization, how do you encourage internal reporting and make sure important issues are raised to the appropriate level in an organization?  This is an often over-looked issue and one that needs attention. A specific protocol and policy needs to be designed and communicated within the company.  The policy has to reiterate...

Sometimes we are right. Sometimes lawyers give the right advice.  Sometimes we are not hyper-ventilating about risks.  Many of my colleagues lost credibility with corporations when they equated the Bribery Act and the Sword of Damocles.  Everyone knew deep in their hearts that the UK Bribery Act was a risk but was not the end of the world.  It stands that way today and will probably...

The stakes are high.  Everyone knows that.  The FCPA paparazzi likes to write about the importance of creating compliance programs to address the real risk to companies of SEC whistleblowers.  Everyone agrees on the basic list of compliance improvements: changing the corporate culture and seeking to persuade the whistleblower to believe in the corporation’s commitment to responding to the whistleblower’s specific complaint.  All that is...

“There are two sides to every story and then there is truth.”  Mark Twain I admire anyone who waded through the Schuelke-Shields report concerning allegations of prosecutorial misconduct in the Stevens case.  There is no doubt the report is lengthy.  But is it fair?  Was there a true investigation where the facts are gathered and weighed?  Or was there a bias in the report itself...