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Third Parties: The Achilles' Heel of FCPA Compliance
The alleged use of third-party intermediaries to pay bribes to foreign government officials soared from 42% of U.S. Foreign Corrupt Practices Act (FCPA) enforcement actions in 2005 to 100% in 2011, according to our analysis of U.S. Securities & Exchange Commission (SEC) and U.S. Department of Justice (DOJ) FCPA enforcement actions reported in the Sherman & Sterling LLP 2012 FCPA Digest. (See Chart 1 below).
Nevertheless, some companies may not be adapting their FCPA compliance programs quickly enough to keep up with this trend. According to an informal online poll of business executives taken in December 2011 during a Deloitte webcast, “Third-Party Business Relationships: Emerging Issues and Regulatory Risks,” 42.9% of 1,339 respondents estimated that their organizations perform due diligence and risk assessments on only half or fewer of third-party business partners, while just 13.4% estimated that their assessments covered between 76% and 100% of such third parties.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.