On January 17, 2018, the New York/New Jersey Port Authority enacted its own vigorous False Claims Policy that punishes contractors who intentionally make material false statements about work they performed
Continue Reading NY/NJ Port Authority Implements New FCA Policy
Presumption of Declination with Voluntary Disclosure, Cooperation, and Remediation of FCPA Violations
Deputy Attorney General Rod J. Rosenstein recently announced a revision to the U.S. Department of Justice (“DOJ”) policy on corporate enforcement of the Foreign Corrupt Practices Act (“FCPA”). The revision codifies a pilot program established during the Obama administration, which allows some companies that voluntarily disclose possible violations of the FCPA to avoid criminal prosecution. The new Corporate Enforcement Policy will be codified in the U.S. Attorney’s Manual. These announcements came during Mr. Rosenstein’s speech at the 34th International Conference on the FCPA, on November 29, 2017. Mr. Rosenstein’s overall theme was that global corruption negatively impacts business, society, and governments, and he asked corporate America to help fight corruption through compliance programs, as a matter of American safety and security.
Continue Reading Presumption of Declination with Voluntary Disclosure, Cooperation, and Remediation of FCPA Violations
FCPA Accounting Provisions Have Teeth: Halliburton to Pay $29.2 Million to Settle FCPA Charges
Along with the anti-bribery provisions, the U.S. Foreign Corrupt Practices Act (“FCPA”) contains accounting provisions that apply to publicly traded companies. These provisions require that companies maintain and adhere to internal policies that manage risk and ensure that accurate financial records are maintained. There is no bribery requirement for there to be a violation of these provisions. There is also no foreign conduct requirement. All that is required is that a company have a policy in-place and circumvent that policy to obtain some business advantage (no matter how small). The Securities and Exchange Commission (“SEC”) often initiates investigations based on allegations of foreign bribery, but resorts to the accounting provisions when the alleged bribe cannot be proven (because an internal policy violation can almost always be found and the SEC does not want a company to get off scot-free).
Continue Reading FCPA Accounting Provisions Have Teeth: Halliburton to Pay $29.2 Million to Settle FCPA Charges
Whatever Happened to the FCPA’s Foreign Conduct Requirement – How the FCPA is Being Used to Police Domestic Conduct and Internal Policy Violations
As its name implies, the U.S. Foreign Corrupt Practices Act (“FCPA”) was designed to prevent U.S. companies from engaging in foreign bribery. The Department of Justice (“DOJ”) and the Securities Exchange Commission (“SEC”), the U.S. Government agencies charged with enforcing the FCPA, have made great use of the FCPA in this regard. They have secured more than $5 billion in settlements over the past five years. This success has resulted in more expansive views of the FCPA’s reach and innovative arguments to find liability when the alleged misconduct occurred entirely within the U.S. The apparent preference for the FCPA in these situations over other potentially applicable laws is likely due to the ease with which an FCPA violation may be proven. An internal policy violation is all that is needed.
Continue Reading Whatever Happened to the FCPA’s Foreign Conduct Requirement – How the FCPA is Being Used to Police Domestic Conduct and Internal Policy Violations
Chief Judge Kozinski’s Ninth Circuit Dissent in U.S. v. Olsen Offers Hope that Courts Will Keep Prosecutors Honest
On December 10, 2013, the U.S. Court of Appeals for the Ninth Circuit denied a request for a rehearing en banc in United States v. Olsen, 2013 WL 6487376 (9th Cir. 2013) (ord. denying reh’g en banc). The defendant, Kenneth Olsen, sought to vacate, set aside, or correct his sentence on grounds that the Government had committed a Brady violation by failing to divulge evidence that called into question the integrity of the lab analyst who determined that Olsen had laced allergy pills with ricin. The Government had used the lab analyst’s testimony to convict Olsen of developing ricin for use as a weapon in violation of 18 U.S.C. § 175.
Continue Reading Chief Judge Kozinski’s Ninth Circuit Dissent in U.S. v. Olsen Offers Hope that Courts Will Keep Prosecutors Honest
OIG Investigations (Without Subpoena Bells and Whistles) Coming to a Program Near You
The Inspector General Act of 1978 aimed to “consolidate existing auditing and investigative resources to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations of [the executive branch].” To fulfill this mandate, the Act created the Offices of Inspector General (“OIG”) in various executive departments and agencies, including the Department of Defense (“DOD”), and authorized them to conduct and supervise audits and investigations to prevent and detect fraud, waste, and abuse. The DOD OIG’s primary investigative weapon has been the subpoena. More recently, however, the DOD OIG has subtly expanded its investigative arsenal by calling upon the Defense Contract Audit Agency (“DCAA”) to step up its fraud inquiries and by conducting more “Quality Assessments” and “Audits” without sounding the warning shot of the subpoena.
Continue Reading OIG Investigations (Without Subpoena Bells and Whistles) Coming to a Program Near You