Archive for the ‘Uncategorized’ Category

Attend FCPA “Summer School” (August 13-14, Washington, D.C.)

Saturday, August 1st, 2015

FCPA InstituteSummer.

A time for reflection, a time to think, and a time for professionals to elevate their FCPA knowledge and practical skills by attending the FCPA Institute – DC on August 13-14th.

Since its launch in July 2014, the FCPA Institute has elevated the FCPA knowledge and practical skills of lawyers, auditing and finance professionals, compliance personnel and business executives from around the world.

The FCPA Institute is next coming to Washington, D.C. on August 13-14th and lawyers from leading law firms around the world as well as in-house counsel and compliance professionals from leading companies have already registered to attend.

If you too want to elevate your FCPA knowledge and practical skills by attending the FCPA Institute – DC, click here for further details and to register.

The FCPA Institute is different from other FCPA conferences as 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.

At the end of the FCPA Institute, participants can 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 may be eligible to receive Continuing Legal Education (“CLE”) credits.  Furthermore, previous FCPA Institute participants have successfully obtained continuing education units from the Society of Corporate Compliance and Ethics for attending the FCPA Institute.

Set forth below is a sampling of what FCPA Institute “graduates” have said about their experience.

  • “Unlike other FCPA conferences where one leaves with a spinning head and unanswered questions, I left the FCPA Institute with a firm understanding of the nuts and bolts of the FCPA, the ability to spot issues, and knowledge of where resources can be found that offer guidance in resolving an issue.  The limited class size of the FCPA Institute ensured that all questions were answered and the interactive discussion among other compliance professionals was fantastic.” (Rob Foster, In-House Counsel, Oil and Gas Company)
  • “The FCPA Institute is very different than other FCPA conferences I have attended.  It was interactive, engaging, thought-provoking and at the completion of the Institute I left feeling like I had really learned something new and useful for my job.  The FCPA Institute is a must-attend for all compliance folks (in-house or external).” (Robert Wieck, CPA, CIA, CFE – Forensic Audit Senior Manager, Oracle Corporation)
  • The FCPA Institute is a top-flight conference that offers an insightful, comprehensive review of the FCPA enforcement landscape.  Professor Koehler’s focus on developing practical skills in an intimate setting really sets it apart from other FCPA conferences.  One of the best features of the FCPA Institute is its diversity of participants and the ability to learn alongside in-house counsel, company executives and finance professionals. (Blair Albom, Associate, Debevoise & Plimpton)
  • “The FCPA Institute was a professionally enriching experience and substantially increased my understanding of the FCPA and its enforcement. Professor Koehler’s extensive insight and practical experience lends a unique view to analyzing enforcement actions and learning compliance best practices. I highly recommend the FCPA Institute to practitioners from all career stages.” (Sherbir Panag, MZM Legal, Mumbia, India)
  • “The FCPA Institute provided an in-depth look into the various forces that have shaped, and that are shaping, FCPA enforcement.  The diverse group of participants provided unique insight into how, at a practical level, various professionals evaluate risk and deal with FCPA issues on a day-to-day basis.  The small group setting, the interactive nature of the event, and the skills assessment test all set the FCPA Institute apart from other FCPA conferences or panel-based events.” (John Turlais, Senior Counsel, Foley & Lardner)

Attend FCPA “Summer School” August 13-14 in Washington, D.C.

Saturday, July 25th, 2015

FCPA InstituteSummer.

A time for reflection, a time to think, and a time for professionals to elevate their FCPA knowledge and practical skills by attending the FCPA Institute – DC on August 13-14th.

Since its launch in July 2014, the FCPA Institute has elevated the FCPA knowledge and practical skills of lawyers, auditing and finance professionals, compliance personnel and business executives from around the world.

The FCPA Institute is next coming to Washington, D.C. on August 13-14th and lawyers from leading law firms around the world as well as in-house counsel and compliance professionals from leading companies have already registered to attend.

If you too want to elevate your FCPA knowledge and practical skills by attending the FCPA Institute – DC, click here for further details and to register.

The FCPA Institute is different from other FCPA conferences as 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.

At the end of the FCPA Institute, participants can 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 may be eligible to receive Continuing Legal Education (“CLE”) credits.  Furthermore, previous FCPA Institute participants have successfully obtained continuing education units from the Society of Corporate Compliance and Ethics for attending the FCPA Institute.

Set forth below is a sampling of what FCPA Institute “graduates” have said about their experience.

  • “Unlike other FCPA conferences where one leaves with a spinning head and unanswered questions, I left the FCPA Institute with a firm understanding of the nuts and bolts of the FCPA, the ability to spot issues, and knowledge of where resources can be found that offer guidance in resolving an issue.  The limited class size of the FCPA Institute ensured that all questions were answered and the interactive discussion among other compliance professionals was fantastic.” (Rob Foster, In-House Counsel, Oil and Gas Company)
  • “The FCPA Institute is very different than other FCPA conferences I have attended.  It was interactive, engaging, thought-provoking and at the completion of the Institute I left feeling like I had really learned something new and useful for my job.  The FCPA Institute is a must-attend for all compliance folks (in-house or external).” (Robert Wieck, CPA, CIA, CFE – Forensic Audit Senior Manager, Oracle Corporation)
  • The FCPA Institute is a top-flight conference that offers an insightful, comprehensive review of the FCPA enforcement landscape.  Professor Koehler’s focus on developing practical skills in an intimate setting really sets it apart from other FCPA conferences.  One of the best features of the FCPA Institute is its diversity of participants and the ability to learn alongside in-house counsel, company executives and finance professionals. (Blair Albom, Associate, Debevoise & Plimpton)
  • “The FCPA Institute was a professionally enriching experience and substantially increased my understanding of the FCPA and its enforcement. Professor Koehler’s extensive insight and practical experience lends a unique view to analyzing enforcement actions and learning compliance best practices. I highly recommend the FCPA Institute to practitioners from all career stages.” (Sherbir Panag, MZM Legal, Mumbia, India)
  • “The FCPA Institute provided an in-depth look into the various forces that have shaped, and that are shaping, FCPA enforcement.  The diverse group of participants provided unique insight into how, at a practical level, various professionals evaluate risk and deal with FCPA issues on a day-to-day basis.  The small group setting, the interactive nature of the event, and the skills assessment test all set the FCPA Institute apart from other FCPA conferences or panel-based events.” (John Turlais, Senior Counsel, Foley & Lardner)

FCPA Professor Turns 6

Friday, July 24th, 2015

sixSix years ago, I launched FCPA Professor with this simple mission statement.

“After a decade-long private practice legal career focused on the FCPA, I am pleased to launch “FCPA Professor” in connection with my new academic career. To be sure, there are other websites and blogs which cover FCPA topics. However, “FCPA Professor” seeks to inject a much-needed scholarly voice into FCPA issues. Thus, in addition to covering the “who, what, and where” of FCPA enforcement actions, news, and legislative initiatives, this blog will also explore the more analytical “why” questions increasingly present in this current era of aggressive FCPA enforcement. The goal of this blog is thus to foster a forum for critical analysis and discussion of the FCPA (and related topics) among FCPA practitioners, business and compliance professionals, scholars and students, and other interested persons.”

Six years and 1,529 posts later and here I am.

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.” For these and many other comments, I am grateful.

Six years later, the mission of FCPA Professor remains the same and I thank you for your readership and being part of this journey.

What started out as a “blog” has turned into so much more and I hope you agree that FCPA Professor is a comprehensive website with, among other things:  links to original source documents; a detailed FCPA 101 page; and approximately 1,000 subject matter categories designed to facilitate in-depth research and analysis.

All of this takes time, money, and substantial effort, yet the content on FCPA Professor is provided free to readers, hundreds of thousands each year from around the world.

If FCPA Professor adds value to your practice or business or otherwise enlightens your day and causes you to contemplate the issues in a more sophisticated way, please consider a donation to FCPA Professor to help celebrate this 6th anniversary.  Yearly subscriptions to other legal publications or sources of information can serve as an appropriate guide for a donation amount.  To donate click here.

In this post, I offer a variety of perspectives from running FCPA Professor for six years and writing on a near daily basis about the Foreign Corrupt Practices Act and related topics.

Surprises

While all voices are welcome in the marketplace of ideas, what has surprised me most is the extent to which many informational gatekeepers in the FCPA space are not lawyers, or if lawyers, lawyers without substantial, real-world practice experience in the subjects they are writing about.  (For more on this topic, see this prior post).  In short, there is some real garbage out there when it comes to FCPA reporting, commentary and analysis.  Not differences of opinion (those are welcome) and to be sure we all make mistakes.  Rather, the deficiencies are as to black and white factual issues that ought to serve as an initial competency test before someone hits the publish button regarding an FCPA topic.  (For more on this issue, see this prior post).  While I don’t expect readers to agree with me on every topic or issue, what I do hope is that readers agree that my posts (particularly as to enforcement actions) represent the most substantive and comprehensive discussion and analysis that is free and publicly available on a near real time basis.

If you would have told me six years ago that writing (as I occasionally do) about legislative history and actual judicial authority relevant to the FCPA would somehow be controversial or provocative, I would have been surprised and I remain surprised about this aspect of my writing to this day.  In the minds of some (see here), I am the “anti-FCPA Professor.”  However should anyone remain curious as to my FCPA positions, they are succinctly stated here.    The irony of course (as highlighted in this prior post) is that more often than not, a former FCPA enforcement official is likely to say (or has already said) the same thing!

In doing FCPA searches literally every 24 hours, I am surprised the extent to which recasting original ideas, thoughts and concepts without proper attribution is common.  Original ideas, thoughts and concepts are my tools and all I really have professionally.  Is it that difficult to cite or attribute?  (See here among numerous other examples).

Rewards

I have met (whether in person or virtually) so many people through, and because of, FCPA Professor.  It is very rewarding to receive reader e-mails or to be at conferences around the world and have a person stop you to say “hi, I read you every day, keep up the good work.”

I am often asked about the feedback I receive on my writing and the answer is as follows.  I start from the belief that a person who disagrees with me is more likely to contact me that a person who agrees with me.  Measured against this belief, it is rewarding that the feedback I receive is 90%+ positive and that includes from certain current DOJ and SEC officials who themselves struggle with many aspects of this new era of FCPA enforcement as well as many, many others who are simply unwilling or incapable of publicly airing their genuine thoughts on many aspects of FCPA enforcement in a way they would like to do.

Some of my most rewarding feedback is from individuals, or more commonly family members of individuals, who find themselves caught up in this new era of FCPA enforcement.  These are real people, with real spouses, parents, children who have very real feelings about this new era of FCPA enforcement.  These are entirely different dynamics than a corporation being under FCPA scrutiny or a corporation resolving an enforcement action with shareholder money.

To my knowledge, FCPA Professor is the second “oldest” continuous website that focuses on FCPA issues and – I guess you can be the judge of this – the first website that began talking about FCPA issues in a different way.  Has FCPA Professor had an impact on various aspects of FCPA enforcement, FCPA reform and related issues? Again, you can be the judge of this, but regardless, I am confident in my answer.

Finally, there is intangible reward of knowing that someone, somewhere is beginning or ending their day, or passing time on their subway commute or airport delay reading you.  FCPA Professor readers span the globe and the sun literally never sets in terms of the traffic on this website.  I take my responsibility of being a gatekeeper of sorts very seriously and it is truly an honor.

I must admit, I enjoy reading FCPA enforcement actions (even though they are truly serious matters generally not thought of as pleasure reading), but reporting on enforcement and scrutiny alerts and updates is not what energizes me the most. Exploring the unexplored topics of the FCPA, making linkages, diving deep into the statistics, and holding public officials accountable for their policy positions is what I enjoy the most about running FCPA Professor.

Struggles

FCPA Professor is to a large extent a labor of love.

Nevertheless, doing anything on a near daily basis for six straight years can be taxing.  Daily searches for FCPA content and drafting and editing the daily post are sometimes a struggle particularly on days that I travel or have other professional or family commitments.  And let’s face it, the ebbs and flows of life are just that.  You all know me by virtue of this website, but I am, among other titles a law professor, husband, father, son, brother, and friend to others, not to mention having outside interests and passions as well.

Because of this, candid, informed, and thoughtful commentary and analysis on FCPA and related issues are always welcome for publication as a guest post.

Is it a good thing that multiple websites all cover the FCPA on a daily basis and feel the need to deliver “new” content every day?  I struggle with this answer just as I struggle in determining whether the general 24-7 news cycle is actually a good thing.  Let’s face it, some days or weeks, there is just not much going on in the FCPA space.

The Future

Will I be running FCPA searches every 24 hours and writing near daily on FCPA topics in 3 years, 5 years, 10 years, 15 years, 20 years?   I don’t know and in certain respects I could only be so lucky.

All I know is that the journey the past six years has been full of surprises, rewards, and occasional struggles.

Thank you for being part of the journey and I would value your contribution to FCPA.

Attend FCPA “Summer School” August 13-14 in Washington, D.C.

Tuesday, July 14th, 2015

FCPA InstituteSummer.

A time for reflection, a time to think, and a time for professionals to elevate their FCPA knowledge and practical skills by attending the FCPA Institute – DC on August 13-14th.

Since its launch in July 2014, the FCPA Institute has elevated the FCPA knowledge and practical skills of lawyers, auditing and finance professionals, compliance personnel and business executives from around the world.

The FCPA Institute is next coming to Washington, D.C. on August 13-14th and lawyers from leading law firms around the world as well as in-house counsel and compliance professionals from leading companies have already registered to attend.

If you too want to elevate your FCPA knowledge and practical skills by attending the FCPA Institute – DC, click here for further details and to register.

The FCPA Institute is different from other FCPA conferences as 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.

At the end of the FCPA Institute, participants can 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 may be eligible to receive Continuing Legal Education (“CLE”) credits.  Furthermore, previous FCPA Institute participants have successfully obtained continuing education units from the Society of Corporate Compliance and Ethics for attending the FCPA Institute.

Set forth below is a sampling of what FCPA Institute “graduates” have said about their experience.

  • “Unlike other FCPA conferences where one leaves with a spinning head and unanswered questions, I left the FCPA Institute with a firm understanding of the nuts and bolts of the FCPA, the ability to spot issues, and knowledge of where resources can be found that offer guidance in resolving an issue.  The limited class size of the FCPA Institute ensured that all questions were answered and the interactive discussion among other compliance professionals was fantastic.” (Rob Foster, In-House Counsel, Oil and Gas Company)
  • “The FCPA Institute is very different than other FCPA conferences I have attended.  It was interactive, engaging, thought-provoking and at the completion of the Institute I left feeling like I had really learned something new and useful for my job.  The FCPA Institute is a must-attend for all compliance folks (in-house or external).” (Robert Wieck, CPA, CIA, CFE – Forensic Audit Senior Manager, Oracle Corporation)
  • The FCPA Institute is a top-flight conference that offers an insightful, comprehensive review of the FCPA enforcement landscape.  Professor Koehler’s focus on developing practical skills in an intimate setting really sets it apart from other FCPA conferences.  One of the best features of the FCPA Institute is its diversity of participants and the ability to learn alongside in-house counsel, company executives and finance professionals. (Blair Albom, Associate, Debevoise & Plimpton)
  • “The FCPA Institute was a professionally enriching experience and substantially increased my understanding of the FCPA and its enforcement. Professor Koehler’s extensive insight and practical experience lends a unique view to analyzing enforcement actions and learning compliance best practices. I highly recommend the FCPA Institute to practitioners from all career stages.” (Sherbir Panag, MZM Legal, Mumbia, India)
  • “The FCPA Institute provided an in-depth look into the various forces that have shaped, and that are shaping, FCPA enforcement.  The diverse group of participants provided unique insight into how, at a practical level, various professionals evaluate risk and deal with FCPA issues on a day-to-day basis.  The small group setting, the interactive nature of the event, and the skills assessment test all set the FCPA Institute apart from other FCPA conferences or panel-based events.” (John Turlais, Senior Counsel, Foley & Lardner)

Q&A On Various Aspects Of The Current FCPA Enforcement Landscape

Monday, June 29th, 2015

Q&AThe Association of Certified Financial Crime Specialists (ACFCS) is a worldwide organization for private and public sector professionals who work in diverse financial crime disciplines.

I recently had the pleasure to engage with ACFCS’s audience in this Q&A on various aspects of the current FCPA enforcement landscape.

The substantive portions of the interview are set forth below.

*****

What is the biggest challenge facing FCPA enforcement?

The biggest challenge is how to enforce the FCPA consistent with commonly accepted rule of law principles.  In this so-called new era of FCPA enforcement, the DOJ and SEC largely occupy the role of prosecutor, judge and jury all at the same time given that most FCPA enforcement actions are resolved in the absence of meaningful judicial scrutiny.  In the rare instances when DOJ and SEC enforcement theories are subjected to judicial scrutiny, the enforcement agencies have an overall losing record when put to its burden of proof.  In short, in a legal system based on the rule of law, quality of enforcement matters more than quantity of enforcement, however most observers of the FCPA seemed to be focused on the later rather than the former.

Is there any low hanging fruit the government has not applied FCPA to? Who should they be going after?

Effective law enforcement requires the prosecution of culpable individuals.  The DOJ and SEC recognize this.  However, the fact remains most FCPA enforcement is corporate only.  Approximately 75% of DOJ corporate FCPA enforcement actions lack related charges against company employees and approximately 80% of SEC corporate FCPA enforcement actions lack related charges against company employees.  One response to this wide gap might be:  “why was nobody charged?”  I submit that the more appropriate response is:  do corporate enforcement actions resolved via NPAs / DPAs or administrative settlements always represent provable FCPA violations.  In my opinion the answer is no.

Why can’t they go after these cases that they should be?

If the DOJ and SEC would prosecute more individuals, enforcement agency theories would likely be subjected to greater judicial scrutiny and the enforcement agencies, as is often the case, would likely lose.  So instead of exposing its aggressive enforcement theories to judicial scrutiny and perhaps losing the leverage of the theory against business organizations, the enforcement agencies exercise their leverage against risk-averse business organizations to secure settlements.  For more information about this dynamic, see my article “The Facade of FCPA Enforcement.” This article was written in 2010 and the troubling facade has only increased since then.

Are there any other countries that the US could look to as an example of effective anti-corruption enforcement?

There are approximately 40 other nations that have FCPA-like laws.  However, comparative enforcement statistics are practically meaningless because it is like comparing apples to oranges for at least two reasons.

First, the U.S. is rare in having so-called respondent superior liability in which a business organization can face criminal or civil liability based on the conduct of any employee or agent to the extent the conduct was within the employee or agent’s scope of employment/agency and was intended, at least in part, to benefit the business organization. In contrast, most other countries with FCPA-like laws either: (i) do not recognize legal person liability; or (ii) if they do only allow such liability to the extent conduct was engaged in by so-called ‘‘controlling minds’’ of the business organization such as board members or executive officers. Against this backdrop, it is not surprising that the country with the most lenient form of business organization liability—the U.S.—has the most enforcement actions.

Second, the U.S. is rare in resolving alleged FCPA violations via NPAs, DPAs or administrative actions.  In contrast, in nearly every other country with FCPA-like laws law enforcement agencies must do something that may be considered old-fashioned by current U.S. standards—and that is prove actual legal violations to someone other than itself.

Why is it hard to prove bribery? What makes it a nebulous type of crime?

I don’t think that proving bribery is any more difficult than proving any other crime.  Indeed, a federal court judge recently blasted DOJ rhetoric about this very issue.

When the DOJ marshals the full resources of the government against a person (whether that person is a “legal person” such as a corporation or “natural person” like you and me) it should be difficult, it should not be easy.  This is what our “founding fathers” specifically contemplated as a necessary bulwark against a tyrannical government.