On July 11 the head of the Antitrust Division will give a presentation at NYU on incentives for compliance programs. Many of us believe the Division will finally endorse the role of compliance programs and make it clear that diligent programs do matter when it comes to enforcement decisions.… Continue Reading
So there are countries around the world that have “gone beyond” the FCPA and prohibited facilitating payments. Good for them. And the United States “lags behind” because it still does not prohibit such payments.… Continue Reading
My prior post for the FCPA Blog suggested that changes are needed to the ISO 37001 anti-bribery management system before countries, agencies, and companies move forward with large-scale adoption.
One of my suggestions in particular — that ISO replace certification with a process for obtaining reviews of compliance programs — attracted thoughtful opposing comments and some criticism.… Continue Reading
Over the years one thing I have noticed is that people who have done compliance and ethics work have actual stories about getting calls from employees, or talking with them at training, or dealing with helpline calls, where we know our work has helped head off a violation.
But the outside skeptics who have studied the field somehow seem disconnected from this on-the-ground reality.… Continue Reading
OK, we get it. Companies should have effective compliance and ethics programs to fight all kinds of corporate crime and misconduct, including bribery.
In particular, the fight against bribery is a prime example of this need — to have companies do what they can to help end this scourge.… Continue Reading
OK, here is the starting point. Someone breaks the law and they need to be punished. Sounds good. Someone misuses government money and is penalized. Still sounds good.
Andy Spalding asked in a post on the FCPA Blog why countries that allow facilitating payments seem to have lower levels of corruption? He didn’t find a definitive answer. But I want to offer my own explanation of why countries that permit facilitating payments might have a better record than those that do not.… Continue Reading
In his post yesterday about “business-side enforcement,” Mike Scher made some good points. But here’s one big reason why “collective action” has not caught on in the U.S.: antitrust. We antitrust lawyers are very nervous about clients meeting and talking with competitors.
We would fear two things: one, discussions would turn to anticompetitive practices, e.g., inside discussions.
And two, we would expect the Antitrust Division to be suspicious and for any collective action to risk government action and private antitrust suits.… Continue Reading
I recently read a decision by the UK’s Office of Fair Trading (now CMA) dealing with a competition law case. In the Lloyds Pharmacy/Tomms case the OFT put into action its policy on giving companies credit for having compliance programs.… Continue Reading
In the FCPA area we all know how important it is to have effective compliance programs. The DOJ’s Criminal Division and the SEC have emphasized that these programs need to be diligent, and not mere formalities.… Continue Reading