Archive for the ‘Uncategorized’ Category

Elevate Your FCPA Knowledge And Practical Skills At The FCPA Institute – Houston

Saturday, April 18th, 2015

FCPA InstituteLearning a new topic or elevating your knowledge and practical skills in a topic is not just for formal students in formal educational settings. Professionals in the workplace can benefit from back to “school” moments as well.  For professionals in the FCPA space – or wishing to join the FCPA space – the FCPA Institute serves this objective.

You can elevate your Foreign Corrupt Practices Act knowledge and practical skills in Houston, Texas at the FCPA Institute on May 4th – 5th.  The FCPA Institute – Houston also provides participants the opportunity to earn CLE credit as well as a value-added professional credential.

The FCPA Institute is different than a typical FCPA conference.  At the FCPA Institute, information is presented in an integrated and cohesive manner by an expert instructor with FCPA practice and teaching experience.

Moreover, the FCPA Institute promotes active learning by participants through issue-spotting video exercises, skills exercises, small-group discussions and the sharing of real-world practices and experiences. To best facilitate the unique learning experience that the FCPA Institute represents, attendance at each FCPA Institute is capped at 30 participants.

In short, the FCPA Institute elevates the FCPA learning experience for a diverse group of professionals and is offered as a refreshing and cost-effective alternative to a typical FCPA conference. The goal of the FCPA Institute is simple: to develop and enhance fundamental skills relevant to the FCPA, FCPA enforcement, and FCPA compliance best practices in a stimulating and professional environment with a focus on learning.

The FCPA Institute presents the FCPA not merely as a legal issue, but also as a business, finance, accounting, and auditing issue. The FCPA Institute is thus ideal for a diverse group of professionals such as in-house and outside counsel; compliance professionals; finance, accounting, and auditing professionals; and others seeking sophisticated knowledge and enhanced skills relevant to the FCPA.

Click here to see what these diverse professionals are saying about the FCPA Institute.

FCPA Institute participants not only gain knowledge, practical skills and peer insight, but can also elect to have their knowledge assessed and can earn a certificate of completion upon passing a written assessment tool. In this way, successful completion of the FCPA Institute represents a value-added credential for professional development.  In addition, attorneys who complete the FCPA Institute are also eligible to receive Continuing Legal Education (“CLE”) credits.

Join other firm lawyers, in-house counsel, accounting and auditing professionals and others who have already registered for the FCPA Institute – Houston.

You can register for the FCPA Institute – Houston by clicking here.

Duke’s Season Of Failures

Wednesday, April 8th, 2015

DukeEarlier this week, Duke won the national championship basketball game to cap off a successful season.  By one measure, Duke was thus the most successful team in college basketball this year.

However, it is undisputed that Duke failed many times this year.

For starters, Duke ended the season 35-4 which means that Duke lost 10% of its games.  Duke failed to win the regular season ACC conference championship and also failed to win the ACC tournament conference championship.  The second week of January was a complete failure for Duke as they lost to both unranked North Carolina State and unranked Miami.

Duke’s season statistics also evidence less than perfection in several fundamental categories.  For the year, Duke’s defense ranked 110th in points per game allowed; 53rd in rebounds per game; 134th in blocks per game; and 68th in steals per game.  In short, there were countless teams that performed better than Duke in the above categories.

More generally Duke’s season witnessed several missed easy shots, numerous dumb fouls, and countless unforced turnovers.

So pronounced were Duke’s failures this past season that in January the team dismissed a key player because he ”repeatedly struggled to meet the necessary obligations” expected of players in the program.

Despite Duke’s many failures this past season, the beauty of sports is that success is viewed holistically and not through a narrow segment of time, a discrete statistical category, the specifics of a certain possession, or the actions of just one player.

Yet the point of this post is to contemplate what would have happened to Duke this season if it was a business organization subject to various criminal or civil laws such as the Foreign Corrupt Practices Act.

The short answer is that Duke would have been prosecuted and criticized (by the DOJ and numerous FCPA commentators) for its complete lack of internal controls.  The enforcement theories / comments would have been along the following lines.  That Duke lost 10% of its games is evidence of ineffective internal controls; team that losses twice in one week to unranked teams does not have effective internal controls;  given the key player’s dismissal, Duke surely failed to detect and prevent improper conduct.

After all, FCPA enforcement actions are often based on the enforcement agencies wearing  rose-colored glasses and viewing a multinational business organization with thousands of employees through the prism of just a 1% fail rate, through the prism of just one business transaction, or through the prism of just an incredibly small group of employees.

An interesting clause in most corporate FCPA enforcement actions is that the company conducted a thorough review of its business operations in a number of jurisdictions other than the locus of the alleged FCPA violation.  Yet, in most cases no other improper conduct is alleged in the enforcement action.  This alone is suggestive of effective internal controls regardless of the discrete conduct alleged in the enforcement action.

The holistic view of internal controls is consistent with legal authority, legislative history and enforcement agency guidance.

The FCPA’s internal control provisions are specifically qualified through concepts of reasonableness.

Legislative history instructs that the internal controls provisions standard does not equate to an “unrealistic degree of exactitude or precision.”

The only judicial decision to substantively address the internal controls provisions states:

“It does not appear that either the SEC or Congress, which adopted the SEC’s recommendations, intended that the statute should require that each affected issuer install a fail-safe accounting control system at all costs.”

And even the SEC has stated in internal controls guidance as follows.

“Inherent in this concept [of reasonableness] is a toleration of deviations from the absolute.”

“The test of a company’s internal control system is not whether occasional failings can occur. Those will happen in the most ideally managed company.”

Sports analogies are often useful in other contexts.

The sports analogy in this post demonstrates just how wayward FCPA enforcement has become in many instances.

Who’s Attending The FCPA Institute – Houston

Tuesday, April 7th, 2015

FCPA InstituteIf you want to attend an FCPA conference to “see and be seen” in a ballroom full of people, then the FCPA Institute might not be for you.

If you want to hear FCPA enforcement attorneys read from prepared remarks and respond to scripted questions from a friendly moderator, then the FCPA Institute might not be for you.

If you want to read the biographies of 50+ speakers who will deliver FCPA content in a disjointed fashion, then the FCPA Institute might not be for you.

However, if you want to learn about the FCPA and elevate your FCPA knowledge and practical skills in a professional setting focused on learning where content is delivered in an integrated and cohesive manner, then the FCPA Institute is for you.

If you want to participate in active learning through issue-spotting video exercises, skills exercises, small-group discussions and the sharing of real-world practices and experiences, then the FCPA Institute is for you.

The next FCPA Institute is scheduled for May 4th – 5th in Houston.  Registrants thus far include, among others:  compliance counsel at a leading healthcare company; senior attorneys with oil and gas companies; and in-house counsel with a leading Fortune 500 company.

The FCPA Institute presents the FCPA not merely as a legal issue, but also as a business, finance, accounting, and auditing issue. The FCPA Institute is thus ideal for a diverse group of professionals seeking sophisticated knowledge and enhanced skills relevant to the FCPA.  Moreover, the FCPA Institute – Houston provides participants the opportunity to earn CLE credit as well as a value-added professional credential through a graded written assessment tool.

On the FCPA Compliance and Ethics Blog, Tom Fox recently stated:

“[If the FCPA Professor puts on his FCPA Institute you should attend. Not only will you garner a better understanding of the theoretical underpinnings of the law and the plain words of its text; you will also be able to articulate many of the issues which befall companies caught up in a FCPA investigation to your senior management in a way that will help them understand the need for a robust compliance program.”

Click here to see what other FCPA Institute “graduates” have said about their FCPA Institute experience.

Click here to register for the FCPA Institute – Houston.

Elevate Your FCPA Knowledge And Practical Skills At The FCPA Institute – Houston

Saturday, March 21st, 2015

FCPA InstituteLearning a new topic or elevating your knowledge and practical skills in a topic is not just for formal students in formal educational settings. Professionals in the workplace can benefit from back to “school” moments as well.  For professionals in the FCPA space – or wishing to join the FCPA space – the FCPA Institute serves this objective.

You can elevate your Foreign Corrupt Practices Act knowledge and practical skills in Houston, Texas at the FCPA Institute on May 4th – 5th.  The FCPA Institute – Houston also provides participants the opportunity to earn CLE credit as well as a value-added professional credential.

The FCPA Institute is different than a typical FCPA conference.  At the FCPA Institute, information is presented in an integrated and cohesive manner by an expert instructor with FCPA practice and teaching experience.

Moreover, the FCPA Institute promotes active learning by participants through issue-spotting video exercises, skills exercises, small-group discussions and the sharing of real-world practices and experiences. To best facilitate the unique learning experience that the FCPA Institute represents, attendance at each FCPA Institute is capped at 30 participants.

In short, the FCPA Institute elevates the FCPA learning experience for a diverse group of professionals and is offered as a refreshing and cost-effective alternative to a typical FCPA conference. The goal of the FCPA Institute is simple: to develop and enhance fundamental skills relevant to the FCPA, FCPA enforcement, and FCPA compliance best practices in a stimulating and professional environment with a focus on learning.

The FCPA Institute presents the FCPA not merely as a legal issue, but also as a business, finance, accounting, and auditing issue. The FCPA Institute is thus ideal for a diverse group of professionals such as in-house and outside counsel; compliance professionals; finance, accounting, and auditing professionals; and others seeking sophisticated knowledge and enhanced skills relevant to the FCPA.

Click here to see what these diverse professionals are saying about the FCPA Institute.

FCPA Institute participants not only gain knowledge, practical skills and peer insight, but can also elect to have their knowledge assessed and can earn a certificate of completion upon passing a written assessment tool. In this way, successful completion of the FCPA Institute represents a value-added credential for professional development.  In addition, attorneys who complete the FCPA Institute are also eligible to receive Continuing Legal Education (“CLE”) credits.

Join other firm lawyers, in-house counsel, accounting and auditing professionals and others who have already “graduated” from the FCPA Institute.

You can register for the FCPA Institute – Houston by clicking here.

Are You An FCPA Contender Or Pretender?

Tuesday, March 17th, 2015

Contender or PretenderMarch Madness has arrived and over the next few weeks college basketball’s contenders will rise to the top over the pretenders. Sure, a cinderella team or two may emerge – after all anything can happen in 40 minutes of basketball – but the teams that make it to the Final Four will likely share the following traits: poise, discipline, focus and a bend-but-don’t-break attitude.

In the spirit of the season ask yourself – are you a Foreign Corrupt Practices Act contender or pretender?

An FCPA contender has a firm understanding of why the FCPA was enacted and is well-versed in FCPA legislative history.  If you do not know the story of the FCPA, it is here.

An FCPA contender has actually read the FCPA statute.  If you have not, it can be found here (in 50 different languages).

An FCPA contender has read every substantive FCPA judicial decision, after all there are not that many.  If you have not read, at a minimum, the following cases you have some work to do: U.S. v. Liebo, U.S. v. Esquenazi, U.S. v. Carson, U.S. v. Lindsey Manufacturing, SEC v. Straub, SEC v. Steffen, U.S. v. Kay, SEC v. Mattson, U.S. v. Bourke, SEC v. Jackson, U.S. v. Castle, and SEC v. World-Wide Coin.

An FCPA contender has studied every FCPA enforcement action.  If you have not done so, all DOJ FCPA enforcement actions can be found here and all SEC FCPA enforcement actions can be found here.

An FCPA contender has reviewed other information and sources of guidance relevant to the FCPA such as the SEC’s 1981 guidance concerning the FCPA’s books and records and internal controls provisions (here), the DOJ’s and SEC’s 2012 FCPA Guidance (here) and DOJ FCPA Opinion Procedure Releases (here).

An FCPA contender recognizes how foreign trade barriers and distortions are often the root causes of bribery and why the absolutist position of “just don’t bribe” is an uniformed fallacy and why even good, ethically sound companies are often the subject of FCPA enforcement or scrutiny.

An FCPA contender understands how FCPA enforcement or merely FCPA scrutiny has many ripple effects (see here).

An FCPA contender is well-versed on FCPA compliance best practices and benchmarking metrics such as the FCPA Guidance, the DOJ’s Principles of Prosecution of Business Organizations, the U.S. Sentencing Guidelines, and the OECD Good Practice Guidance on Internal Controls, Ethics, and Compliance.

In this season of contenders vs. pretenders, commit to being an FCPA contender. The above sources of information are not meant to be exhaustive, but rather comprise a solid core of FCPA legal authority as well as other sources of information or knowledge.