It has been proven over and over again that the emperor isn’t wearing any clothes, but most people don’t want to look at a naked emperor – Frank Zappa Compliance does not mean just checking off a box and continuing business as usual. All too often, small and mid-size companies, private and public, are adopting cookie-cutter compliance programs and moving on to the next project. ...
Drug and device companies have a lot to worry about these days. Not only have they been targeted for FCPA enforcement actions, but they continue to be investigated and prosecuted by the Justice Department and HHS/FDA for “off-label” marketing of their products. DOJ has collected significant fines against companies, convicted individual officers, and employed aggressive policies to charge senior managers who have no knowledge of...
In-House counsel and corporate compliance officers dodge bullets everyday as they stare down the barrels of aggressive prosecutors, regulators, civil litigants, whistleblowers, disgruntled employees and shareholders prodded by trial attorneys to file derivative suits at the drop of a hat. In the face of all of these risks, internal investigations have become commonplace and a standard defensive tactic for a company to regain some leverage,...
Crime does not pay – a trite saying, but in the world of bribery, it is certainly true. Everyone always assumes that paying a bribe always leads to a direct benefit. But is that assumption accurate? A recent article, S.Y. Cheung, R. Rau, A. Stouraitis, Which Firms Benefit from Bribes, and By How much? Evidence from Corruption Cases Worldwide, Social Science Research Network, June 30,...
Former federal judge Stanley Sporkin is one of my heroes. Yes, I am biased because as an AUSA in Washington, D.C. I tried several cases before him, and in private practice, I have collaborated with him on many projects. My admiration, however, extends back to events surrounding the enactment of the FCPA. Judge Sporkin has told the story many times but it is a story...
The Haiti Telco case stands as the Justice Department’s crown jewel of individual prosecutions. Judge Jose Martinez sentenced Joel Esquenazi to a 15-year sentence (180 months) and co-defendant Carlo Rodriguez to 7 years (84 months). Last year, Judge Martinez sentenced two other defendants, Juan Diaz, and Robert Antoine, to 57 and 48 months respectively. Judge Martinez has now imposed the longest, and the third, sixth...
To give you an idea of the impact of the SEC’s Whistleblower program, my good friend former federal judge Stanley Sporkin spent an entire day with senior management of a large global company to discuss the implications of the new program for the business’ global operations. To put it mildly, the SEC’s whistleblower program creates significant risks for companies. Perhaps the most difficult area for...
As my cousin always tells me, “Mike, you have a profound grasp of the obvious.” When it comes to figuring out what enforcement priorities of the Justice Department and the SEC, it is not very hard. In fact, Justice Department and SEC officials are usually very open about their priorities and where they are heading. Aside from their statements, the second most important clue is...
With all the press and Congressional attention to anti-corruption enforcement, it is important to keep things in perspective. FCPA enforcement is aggressive but pales in comparison to federal government efforts to combat fraud in the Medicare system. It is estimated that almost 10 percent ($48 billion) of Medicare’s $507 billion budget in 2010 was made for fraudulent or improper payments. The Center for Medicare and...
When businesses complain about the unfairness of the FCPA, the Nature’s Sunshine case is often cited as an example of SEC overreaching. Businesses may have a legitimate complaint. In July 2009, the SEC filed a settled enforcement against Nature’s Sunshine Products, Inc. and its CEO and former CFO. The SEC did not allege that the officers were involved in or even aware of the alleged...
