Category Archives: Compliance

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A Few Thoughts on DOJ’s Procurement Collusion Strike Force

Jonathan AronieRyan RobertsBy Jonathan Aronie and Ryan Roberts on Posted in Compliance, Compliance Programs, Contractor Business Ethics Compliance Program and Disclosure Requirements, Flow-down, Government Enforcement, Internal Controls, Mandatory Disclosure Rule, OIG, Supply Chain
This month, and with great fanfare, the U.S. Department of Justice (DOJ) announced its creation of a Procurement Collusion Strike Force.  We know what you’re thinking, and no – this Strike Force will not be starring in the next Avengers movie. Rather, DOJ created the Strike Force to combat antitrust crimes in Federal procurement. The … Continue Reading

The Evolution of TAA Compliance Post-Energizer – “Substantially Transformed” Has Substantially Changed

David GallacherRyan RobertsAriel E. DebinBy David Gallacher, Ryan Roberts and Ariel E. Debin on Posted in Compliance, Supply Chain, TAA
Trade Agreements Act compliance changed fundamentally three years ago. Or, so we thought on December 7, 2016, when the U.S. Court of International Trade (“CIT”), the appellate body for country of origin determinations issued by the U.S. Customs and Border Patrol (“CBP”), for the first time analyzed the meaning of “substantial transformation” under the Trade … Continue Reading

New Executive Orders Aim to Eliminate Unfair Surprise in Civil Enforcement Actions by Formalizing Guidance Documents

Emily TheriaultBy Emily Theriault on Posted in Civil Litigation, Compliance, Executive Orders
On October 9, 2019, the President issued two executive orders that require agencies to formally provide official guidance before enforcing any new jurisdiction or legal standards. In other words, agencies cannot take novel legal positions in civil enforcement actions or adjudications without first formally notifying the public. Building on the 2017 Sessions Memorandum and 2018 … Continue Reading

R.I.P. PPIRS

David GallacherBy David Gallacher on Posted in Compliance, Debarment, FAPIIS, Labor, Past Performance, Procurement, Suspension
First things first, I’m sorry about the title; I couldn’t resist. The longer, alternate title would have been “Rest In Peace – the Past Performance Information Retrieval System Sleeps with the Fishes.” But that doesn’t have the same kind of obscure, punchy, epitaph-type quality that I’m aiming for. So instead, I give you get a … Continue Reading

Feds Focus on Individuals in Evaluating Corporate Compliance Programs

Sarah AbergBochan KimBy Sarah Aberg and Bochan Kim on Posted in Compliance, Compliance Programs, Corporate Governance, OFAC, Sanctions
Earlier this month, the U.S. Department of Justice (“DOJ”) and the U.S. Department of the Treasury’s Office of Foreign Asset Controls (“OFAC”) both issued guidance regarding their expectations for corporate compliance programs. Both documents are geared towards establishing more rigid frameworks for assessing compliance programs. A common theme among both pieces of guidance appears to … Continue Reading

From the Big Easy to the Big Ten, And Beyond: What the Process of Reforming the New Orleans Police Department Can Teach Colleges and Universities

Jonathan AronieDavid DouglassA. Joseph Jay, IIIBy Jonathan Aronie, David Douglass and A. Joseph Jay, III on Posted in Compliance, Compliance Programs, Corporate Governance, Internal Investigations, White Collar
In 2012, the Penn State Lions went 8-4 on the field, passing 3,283 yards, rushing 740 yards, and scoring 349 points. This credible performance earned it a respectable 38th ranking out of the 124 schools in the NCAA’s Division I Football Bowl Subdivision. But few will remember Penn State’s athletic performance in 2012. What people … Continue Reading

“Brand Memo” Prohibits US DOJ From Converting Agency Guidance Into Binding Legal Obligations In Civil Enforcement Actions

Emily TheriaultBy Emily Theriault on Posted in Compliance, False Claims, FCA
On January 25, 2018, Associate Attorney General Rachel Brand issued a memorandum (the “Brand Memo”) limiting the use of agency guidance documents in affirmative civil enforcement cases. The memorandum builds on Attorney General Jeff Sessions’ November 16, 2017 memorandum prohibiting DOJ from promulgating guidance documents that create rights or obligations that are binding on regulated … Continue Reading

FINRA Updates Its Sanction Guidelines

Jeff KernJulie BaumanBy Jeff Kern and Julie Bauman on Posted in Compliance, Regulations
Earlier this month, FINRA announced changes to its Sanction Guidelines through Notice to Members 17-13. FINRA’s Sanction Guidelines are used by FINRA disciplinary hearing panels to decide what, if any, sanctions to impose in those enforcement actions in which a rule violation is found. FINRA enforcement staff and members of the defense bar utilize the … Continue Reading

Watching the Detectives: The SEC Launches a Dedicated FINRA Oversight Unit

Sarah AbergBy Sarah Aberg on Posted in Compliance, Regulations
The SEC has launched a dedicated team to oversee FINRA, according to remarks by Marc Wyatt, Director of the SEC’s Office of Compliance Inspections and Examinations (“OCIE”). Congress has vested the SEC with the power to supervise FINRA, including the authority to inspect and examine. The new unit, named FINRA and Securities Industry Oversight (“FISIO”), … Continue Reading

SEC Steps Up Cybersecurity Enforcement with $1 Million Fine Against Morgan Stanley

Jeff KernChristopher BoschBy Jeff Kern and Christopher Bosch on Posted in Compliance, Cybersecurity
The Securities and Exchange Commission’s (“SEC”) recent $1 million settlement with Morgan Stanley Smith Barney LLC (“MSSB”) marked a turning point in the agency’s focus on cybersecurity issues, an area that the agency has proclaimed a top enforcement priority in recent years.  The MSSB settlement addressed various cybersecurity deficiencies that led to the misappropriation of … Continue Reading

REGULATORS, QUANT UP! New Rules from FINRA, SEC and CFTC Target Automated Algorithmic Trading

Sarah AbergBy Sarah Aberg on Posted in Compliance, Proposed Rules, Regulations
On February 11, 2016, the Financial Industry Regulatory Authority (“FINRA”) filed a proposed rule with the Securities and Exchange Commission (“SEC”) that would require individuals who “design, develop or significantly modify algorithmic trading strategies” (or “ATS”) as well as individuals responsible for the “day-to-day supervision or direction of the development process,” to pass a qualification … Continue Reading

Look Before You Leap – Pitfalls and Trip Wires Inherent in Government Contracting

Anne PerryDavid GallacherBy Anne Perry and David Gallacher on Posted in Compliance, Do's and Don'ts in Government Contracting, Government Contracts Law, Government Enforcement, Procurement
Accepting money from the Government, whether through a contract, grant, or other transaction, does not come for free. In the commercial world, companies typically engage in a cost/benefit analysis when they make major decisions, such as whether to enter a new line of business, extend their product line, open new facilities, or expand globally. To … Continue Reading

It’s (Not) Academic: Cybersecurity Is a Must for Universities and Academic Medical Centers

Christine CouvillonBy Christine Couvillon on Posted in Compliance, Cybersecurity, Industries
Cutting-edge research institutions need cutting-edge cybersecurity to protect their IP and critical personal and financial data.  Universities hold vast repositories of valuable information, including student healthcare information, patient information from academic medical centers, and financial and personal data from applicants, donors, students, faculty, and staff. So it’s no surprise hackers have been targeting universities lately—in … Continue Reading

Contractors Beware: An Overly Broad Confidentiality Agreement Could Cost You!

Katie CalogeroBy Katie Calogero on Posted in Compliance, DFARS, False Claims, FCA
On October 29, 2015, DOD renewed the DFARS deviation implemented in February, which prohibits contracting with entities that require employees or subcontractors to sign internal confidentiality agreements or statements that prohibit, or otherwise restrict, such employee or subcontractor from lawfully reporting waste, fraud, or abuse.  Defense contractors should review their policies to ensure they meet … Continue Reading

Suspension and Debarment: A New Government Approach

Townsend BourneBy Townsend Bourne on Posted in Compliance, Debarment, Government Enforcement, Suspension
Contractors and government contracts attorneys are likely to see (if they haven’t already) a rise in the number of cases in which individuals, rather than corporate entities, are targeted by government officials for suspension and debarment.  This is significant because, under the FAR, the misconduct of an individual can be imputed to the contractor, causing … Continue Reading

Forward to the Past: NYSE Returns to Regulation

Jeff KernChristopher BoschBy Jeff Kern and Christopher Bosch on Posted in Compliance, Regulations
Everything old is new again.  On January 1, 2016, the New York Stock Exchange (“NYSE”) – now owned by Intercontinental Exchange, Inc. – will be taking back some of the regulatory responsibilities it yielded to the Financial Industry Regulatory Authority (“FINRA”), starting in 2007 when the NYSE and National Association of Securities Dealers (“NASD”) merged … Continue Reading

Been to Confession Lately?

John ChierichellaBy John Chierichella on Posted in Compliance, Internal Investigations, Mandatory Disclosure Rule
It has been six years since the Government introduced the concept of mandatory disclosure into the contracting calculus. In a recent Government Contractor Briefing Paper,™  John Chierichella and Bruce Casino review the FAR mandatory disclosure rule, what it requires, its inherent (and purposeful) ambiguities, best practices for compliance, and statistical data relating to industry-wide willingness … Continue Reading

Suspensions and Debarments on the Rise – A Brief Review of the ISDC’s FY 2014 Stats

Emily TheriaultBy Emily Theriault on Posted in Compliance, Debarment, Government Enforcement, Suspension
The upward trend of suspensions and debarments continued in FY 2014.  According to the Interagency Suspension and Debarment Committee (“ISDC”) Report to Congress, released March 31, 2015, while referrals to the suspending and debarring officials decreased 12% from FY 2013, suspensions, debarments, and proposed debarments increased, Government-wide, by almost 8%. Since the ISDC began collecting … Continue Reading

Corporate Internal Investigations: Best Practices

Bryan DalyChristopher HaleMelissa EavesBy Bryan Daly, Christopher Hale and Melissa Eaves on Posted in Compliance, Corporate Governance, Government Enforcement, Internal Investigations
A CEO receives an anonymous call claiming that someone is stealing company trade secrets or that an employee is taking kickbacks from a vendor.  A GC gets a call from the HR director who has an employee accusing the company of submitting false bills to a government agency.  You are served by a government agency … Continue Reading

David Douglass on the False Claims Act

By Sheppard Mullin on Posted in Compliance, FCA
Sheppard Mullin government contracts partner David Douglass was recently quoted at length in an article discussing the defense of False Claims Act cases.  Although the Government is all too often using the False Claims Act as an all-encompassing fraud statute, Mr. Douglass notes that companies are having more success defending against these allegations in recent … Continue Reading

Lots of Little Things – FAR Updates from the Federal Acquisition Circular

Townsend BourneDavid GallacherBy Townsend Bourne and David Gallacher on Posted in Changes, Christian Doctrine, Commercial Items, Compliance, Compliance Programs, COTS, DFARS, FAR, Federal Register Update, Government Contracts Law, GSA Schedule, Interim Rule, Micro-Purchase Threshold, Procurement, Regulations, Regulatory Update, Software
Every now and then, the FAR Councils issue a Federal Acquisition Circular (FAC) – an update to the Federal Acquisition Regulation implementing a number of changes. Often these changes are rather pro forma. But occasionally, you get a Circular with many different (and interesting) issues. FAC 2005-67, issued in late-June 2013, with rules becoming effective … Continue Reading

Quick on the Trigger – Period for Contractors to Comment on Past Performance Evaluations Will Shrink from 30 Days to 14 Days

By Sheppard Mullin on Posted in Compliance, Debarment, FAPIIS, Past Performance, Proposed Regulations, Suspension
By David Gallacher  Over the last few years, there has been a significant push to consolidate all contractor information into central locations, and also to ensure that all performance-related information is updated and current (allowing the government customers to have access to the latest and greatest information about how a contractor has performed). Two recent … Continue Reading
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