In Part I of Reading
a Crystal Ball? Guidance on Instrumentality under the FCPA , we listed
the factors which the three federal district courts have set forth for the
determination of whether an entity is an instrumentality under the Foreign
I had intended to post Part II of my series the recent
court rulings on instrumentalities. However, sometimes events overtake you. In
the world of the Foreign Corrupt Practices Act (FCPA), some of the fact
scenarios are so preposterous that if they...
One the criticisms of the Foreign Corrupt Practices Act
(FCPA) is that it provides little guidance as to what constitutes an
instrumentality under the Act and attendant question of who is a foreign
governmental official. One of the five points raised...
In an article published in the June issue of ACC Docket,
entitled " Playing the Cards You're Dealt ", James Nortz raised the
interesting issue of the lack of company leadership to "create an ethical
vision, the moral courage to pursue...
In a recent post entitled " Will
No One Rid Me of this Meddlesome Priest? " I highlighted 'Tone at the
Top' by discussing the words of Henry II leading to the subsequent murder of
Thomas Becket. One of the things I learned on my recent...
In the most recent issue of the SCCE, Compliance
and Ethics Professional Magazine , Issue 08/2011, is an article entitled " Foxes and henhouses: The
importance of independent counsel ", in which author Dan Dunne discussed
what he termed a...
Joel Esquenazi, the president of Miami based Terra
Telecommunications Corp., and Carlos Rodriguez, the executive vice president of
the company, were convicted on all counts following a jury trial. Specifically,
the two men were convicted on one count...
In an article in the July/August edition of the ACC Docket entitled " Rethinking the Annual Compliance and Ethics Flea Dip ", author James Nortz discusses the annual compliance and ethics training program that most US company's employees...
One of the ongoing debates in the compliance world has been over the Whistleblower Provision of Dodd-Frank and whether this provision will aid or diminish a company's overall compliance program. One of the points in this debate is whether or not a...
Earlier this week I had the opportunity to sit down and
lunch with Barry Vitou and Richard Kovalevsky, QC, authors of the website, thebriberyact.com . A great time was
certainly had by all and, in honor of their website and the venue, I enjoyed a
The issue of audit rights in compliance terms and
conditions is one that leads to debates both pro and con. My This Week in FCPA
colleague Howard Sklar and I have sparred on this issue. Usually the debates
centers around the threshold question of...
Note: The prior episode (#13) has been fixed and can
be viewed here .
Business Roundtable in
Lindsey allegations of
National Strategy to
The SEC concluded an FCPA investigation with Diageo, plc,
in a settled administrative proceeding. In the Mater of Diageo plc, Adm.
Proc. File No. 3-14490 (July 27, 2011).
Diageo is a leading producer and distributor of premium
branded spirits, beer...
What is the role of a company's Board when it comes to
Foreign Corrupt Practices Act (FCPA) compliance? The Board should not engage in
management but should engage in oversight of a Chief Executive Officer (CEO)
and senior management, which they...
Tone at the Top has become a phrase inculcated in the
compliance world. The reason it is so important to any compliance program is
because it does actually matter. Any compliance program starts at the top and
flows down throughout the company. The...
In a recent article entitled " The Breakthrough Myth "
author Clive Thompson postulates that most radical new technologies have been
"percolating in plain sight for years." He begins with the position that
everyone is looking for...
Lucky Episode #13!
1. News Corp.
If you are a cyclist, the most famous Aussie in the world
today is Cadel Evans, the first Australian to win the Tour de France. In
the compliance world, the other most famous Aussie is still Rupert Murdoch. So
today we tip our hat to Cadel for a great...
While many companies here in the US complain about the
enforcement of the Foreign Corrupt Practices Act (FCPA), and are actively
seeking to soften its enforcement by lobbying Congress to amend the FCPA, just
imagine how they might feel about paying...
In the Process Section of the August issue of Wired Magazine is an article by Mike Olsen
entitled, " How Con Ed averts blackouts during a heat wave ". Being
from Houston and living in one of the hottest summers on record, I was
1. More on News Corp.
2. Haiti Telecom case
3. Armor Holdings
4. Letter to the SEC from Sen. Crapo
5. Opening up a whistleblower practice
6. Is AML coming to Private Equity, and what does that mean.
The evaluation of C-Suite leadership can be problematic
in the best of times. In the compliance world, if a company has a serious
violation of the Foreign Corrupt Practices Act (FCPA), it may be due to
tone-deafness at the top. Worse than simple tone...
Apologies for the technical issues last week. They recurred, but I
was able to salvage the intact audio for part I of episode #12. We’ll
post part II Monday night.
1. Rehashing the opinion release from last week, with a surprising...
As most of the readers of this blog will recall, I
recently discussed the substance of Opinion Release 11-01 and had some
additional comments regarding the relative ease by which a lawyer or compliance
office should have been able to research the question...
My "This Week in the FCPA" colleague Howard Sklar often
talks about the internal corporate negotiations that a Compliance Department
must engage in to obtain funding for compliance projects. Even with the economy
on the upswing many corporations...