General
I am really enjoying reading and re-reading the FCPA Guidance. It is a fascinating document, well written and chock full of salient points, messages, explicit and implicit.For me, the most important issues are those that are in the so-called “gray area.” Some of the hypotheticals and the
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The Justice Department and the Department of Health and Human Services have made healthcare fraud a number one priority – it is another example of the synergy of politics and enforcement. Congress spends more money on prosecution resources and prosecutors use these resources to bring more criminal and civil enforcement actions.
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Companies face a lot of risks these days in this enforcement environment. With the reelection of President Obama, businesses need to plan for four more years of continuing enforcement risks. While everyone appears to be spending time on FCPA enforcement and compliance, companies need to spend more time in protecting
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The Financial Crimes Enforcement Network (FinCEN) is a new, imposing figure in the world of financial regulatory enforcement. As originally created, FinCEN served as an information and intelligence support system for other regulatory agencies and federal prosecutors. That all changed in 2004 when Congress mandated that FinCEN create an Office
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In the midst of all this hullabaloo about the FCPA Guidance, an important survey was recently released by Kroll which confirmed my worst fears – despite all of the enforcement actions, all of the FCPA Paparazzi fear mongering, the implementation of the UK Bribery Act, and the global anti-corruption movement,
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The FCPA Guidance could not have been clearer; it could not have offered more incentives and carrots to the business community. If you adopt and implement an “effective” compliance program, you will receive significant credit for your program which can reduce a penalty, avoid a corporate monitor, or even secure
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The US Court of Appeals for the Second Circuit, in a decision issued on December 3, 2012, in United States v. Caronia, threw out a criminal conviction of the defendant Alfred Caronia, a pharmaceutical sales person, for an off-label marketing violation, ruling that the prosecution violated the First Amendment.
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The US Chamber of Commerce “praised” the FCPA Guidance. The Chamber did not get what it wanted but it had to recognize that the FCPA Guidance was helpful for businesses. The FPCA Guidance provides important information for compliance, due diligence and other relevant issues.Some industries received a little bit
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Compliance professionals need to thank DOJ and SEC for the FCPA Guidance discussion on corporate compliance. DOJ and SEC provide important suggestions for improving compliance but they do so while reaffirming several important compliance principles.First, and most importantly, DOJ and SEC reaffirm the requirement that a single senior manager
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It is interesting that the most significant advances in compliance program requirements have been developed in the context of criminal prosecutions. Maybe it is because the stakes are so high and the government’s leverage is at its zenith.The US Sentencing Guidelines’ definition of an “effective compliance program” led
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The FCPA Guidance contains good news and bad news. When I ask one of my kids which they want to hear first … they inevitably choose bad news first.With that in mind, the FCPA Guidance includes relatively bad news on successor liability. In leading up to the FCPA Guidance, I
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Perhaps I was being overly optimistic. I thought the Justice Department and the SEC could bring a little clarity to the term “instrumentality” in the definition of a “foreign official” under the FCPA. It was wishful thinking on my part.In fairness, the Justice Department has a pending appeal before