DOJ Deputy Assistant Attorney General Miner On “The Two Primary Goals Of White Collar Criminal Enforcement” (With Commentary)
It’s mid-September which means a few things: the days are getting shorter, the trees are beginning to show color, and DOJ and SEC enforcement officials are on the speaking circuit.
Earlier this week it was SEC Chairman Jay Clayton (see here for the prior post) and yesterday it was DOJ Deputy Assistant Attorney General Matthew Miner who spoke on the two primary goals of white collar criminal enforcement: “(1) to deter legally non-compliant behavior and punish it where it does occur; and (2) to encourage greater compliant behavior, including creating a more level playing field for those who play by the rules.”
Friday Roundup
Cannabis industry, fooled me, questions abound, investigative fees and expenses, survey says, scrutiny alert, and for the reading stack.
It’s all here in the Friday roundup.
Cannabis Industry
This recent FBI public recording states: “As an increasing number of states change their marijuana legislation, the FBI is seeing a public corruption threat emerge in the expanding cannabis industry. States require licenses to grow and sell the drug—opening the possibility for public officials to become susceptible to bribes in exchange for those licenses.”
Walmart, Like Prior Issuers, Gets Whistled For Decentralized Compliance
Generally speaking, the FCPA’s internal controls provisions require issuers to “devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances” that certain limited financial objectives are met. The FCPA then defines “reasonable assurances” to mean “such level of detail and degree of assurance as would satisfy prudent officials in the conduct of their own affairs.”
The main problem with these provisions is there is no specific standards by which to judge compliance. Indeed, as highlighted in this prior post, in SEC v. Worldwide Coin (believed to be the only judicial decision to substantively construe the FCPA’s books and records and internal controls provisions) the judge stated: “The main problem with the internal accounting controls provision of the FCPA is that there are no specific standards by which to evaluate the sufficiency of controls; any evaluation is inevitably a highly subjective process in which knowledgable individuals can arrive at totally different conclusions.”
Approximately 7.5 Years After Disclosing FCPA Scrutiny, Walmart FINALLY Resolves FCPA Enforcement Action
As highlighted in this prior post, in late 2011 Walmart disclosed that it began “an internal investigation into whether certain matters, including permitting, licensing and inspections, were in compliance” with the FCPA.
So began arguably one of the most high-profile instances of corporate scrutiny in Foreign Corrupt Practices Act. history. The scrutiny FINALLY came to an end yesterday as the DOJ and SEC announced (here and here) a coordinated $282 million enforcement action. As highlighted in this prior post, Walmart disclosed this likely settlement amount in November 2017, yet it still took approximately 1.5 additional years to formally resolve the matter.
This post summarizes the DOJ and SEC’s enforcement action concerning alleged improper conduct in the following countries: Mexico, Brazil, India and China. Future posts will explore numerous other issues relevant to the enforcement action.
“Compliance Officer” / Dad
Yesterday was Father’s Day.
With twin 11-year old boys, Father is just one of my titles. Referee and Compliance Officer being a few others. As to the later, Co-Compliance Officer along with my wife is the more accurate title (I wonder what the “Compliance 2.0” [or are we on to 3.0 now] folks would say about this structure)?
Father’s Day is a chance to reflect and to be sure being a Dad has informed my view of many things including compliance. When you really think about, compliance and parenting have a lot in common.