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DOJ Highlights 11 Factors Relevant In Evaluating A Corporate Compliance Program

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Last week the DOJ released this document highlighting 11 factors relevant in evaluating a corporate compliance program.

The factors should be familiar to compliance professionals well-versed on best-practices policies and procedures (whether in the FCPA context or otherwise) and there is really nothing new about the document (indeed the document cites to sources long in the public domain). Yet the document, the origins and purpose of which are not known, was released by a “new” DOJ with new leadership and is thus worthy of highlighting.

Organizing the existing body of best practices in one document is all fine and dandy. The more important question however is what should happen if a business organization acts consistent with the factors but an employee nevertheless exposes the entity to legal liability. Consistent with the FCPA-like laws of many peer countries, this should be relevant as a matter of law and not merely in the opaque, inconsistent, and unpredictable world of DOJ decision making. (See here).

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FCPA Flash – A Conversation With Joseph Warin

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Joseph Warin (Gibson Dunn & Crutcher). Warin is the lead author of an article that recently caught my eye titled “Refusing to Settle: Why Public Companies Go to Trial in Federal Criminal Cases.” The article is not specific to the Foreign Corrupt Practices Act, but several of the factors identified in the article about why companies refuse to settle are certainly relevant to FCPA enforcement.

In the podcast, Warin discusses: (i) why so few companies under FCPA scrutiny refuse to settle; (ii) the de facto compliance defense that companies have successfully invoked in other federal criminal trials; (iii) why the terms of NPAs or DPAs may be worse for companies compared to going to trial; and (iv) whether the current FCPA enforcement environment would look the same if more business organization opted to put the DOJ or SEC to its burden of proof.

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FCPA Flash – A Conversation With Matthew Wagstaff (Joint Head of Bribery and Corruption at the U.K. Serious Fraud Office)

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Matthew Wagstaff, Joint Head of Bribery and Corruption at the U.K. Serious Fraud Office. In the episode, Wagstaff discusses: (i) whether the Bribery Act’s so-called adequate procedures defense has motivated corporates to adopt best practices compliance policies and procedures to a greater extent than prior to the Bribery Act; (ii) the U.K. deferred prosecution agreement regime including a response to criticism that the regime is actually a step backwards in terms of motivating corporate self-reports; and (iii) the meaning of “success” of an anti-corruption law.

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Friday Roundup

Roundup

Predictable, scrutiny alert, in the words of Attorney General Lynch, bankrupt, DOJ guidance, and for the reading stack. It’s all here in the Friday roundup.

Predictable

It’s as predictable as the sun rising in the east.

A former FCPA enforcement official criticizes certain aspects of FCPA enforcement. As noted in this Law360 article, former DOJ Assistant Attorney General of the Criminal Division Lanny Breuer (who took a great interest in FCPA enforcement while in that position – see here for the article “Lanny Breuer and FCPA Enforcement”) recently observed as follows regarding the DOJ’s FCPA Pilot Program.

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FCPA Flash – A Conversation With Mark Srere About FCPA Reform And The Best Positive Incentives

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers expect from the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Mark Srere (Bryan Cave). In the episode, Srere articulates why the current FCPA enforcement environment does not offer business organizations the best positive incentives and he offers an FCPA reform proposal that he believes would. In addition, Srere critiques the hindsight driven nature of certain FCPA enforcement actions as it relates to the internal controls provisions.

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