The Republic is now a year out from DOJ’s announcement that its Foreign Corrupt Practices Act “pilot program” was to be made permanent. Some would say that the anniversary calls for alcohol either in joy or in sorrow. Perhaps an old cocktail, recently revived? One consistent with the “pilot” theme? Let’s try the Aviation: Drink in hand, you can sit down and read FCPA Compliance 1 Year After DOJ Revised Policy by my Lightfoot colleagues Brandon Essig, Tenley Armstrong, and Jeff Doss (and me): Because of the risks, the dollars and the players, the FCPA connotes sophistication to the point of mystery and complexity to the point of opacity. We propose that…
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Vantage Drilling, General Lee and the Culture of Compliance
Gin is a noble spirit; without vermouth, perhaps a lonely one. Similarly, having a compliance program, yet failing to follow it in the presence of some red flags is both lonely and expensive, as we see in the internal accounting controls FCPA case that Vantage Drilling recently settled with the SEC. Is this a problem with culture? And what is “culture,” anyway, in terms of FCPA compliance? Except perhaps for “paradigm” and “silo,” the word “culture” is one of the most abused in the vocabulary of compliance, ethics and consultants. (I once heard a consultant say that he needed “a high hover over the silos.” I thought it an ironic mash-up…
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Thanksgiving Notebook: Bing, Booze, Book of Common Prayer
Unlike the music of Christmas or Easter, the music of Thanksgiving is harder to pinpoint. Shuffling leaves? The drum-brush strokes of a knife carving the turkey? Vince Guaraldi, an early lead-up to Christmas through the dim or vivid Charlie Brown television-memories of readers of a certain age? An uncertain business, but here are a couple of thoughts. First, when in doubt, start in the seventeenth century. The “Te Deum & Jubilate for Voices and Instruments made for St. Cecilia’s Day 1694” of Henry Purcell was apparently performed as a Thanksgiving piece, as noted by Michael Evans Kinney and the Stanford libraries: While not much is known about the early St.…
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The Gibson: Thanks, Given
If one writes poetry in bound verse, the poet must follow the rules or the form loses its character. “Blank verse” is written in un-rhymed iambic pentameter. It can be written in another form, or no form at all, but it will no longer be blank verse. The thing is its form. Similarly, the martini is (or should be) akin to the bound verse of cocktails. The true list of potential alcohols — gin, vermouth — is austere. There are two popular garnishes — the twist and the olive — and one nearly forgotten: the cocktail onion. The combination of gin, vermouth and a cocktail onion (or two or three)…
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Search Warrants, Subpoenas, and Danish Existentialism
The “what-to-do-when-the-FBI-shows up” spiel is, admittedly, a well-worn trope on the white-collar panel-discussion circuit, a talk accompanied by coffee in styrofoam cups (in the morning) or dry chicken-breasts on buffet steam-tables (in the evening). Unless the audience is virginal in its dalliance with law enforcement, the shock effect of talking about search warrants is lost, and the delivery becomes boring, leading us to that nineteenth-century Danish existentialist, Soren Kierkegaard. Yet, the subject is a serious one for corporations and for individual businesspersons. As we have noted before, law-enforcement techniques — including search warrants — that were once limited to organized crime, drug dealers or motorcycle gangs are now used with…
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Takeaways For Subpoena Season: Mid-Terms, Congress and the White House
The Democrats having taken the House, there is no shortage of predictions of an oversight-apocalypse heading for the White House. See here and here and here. And, Jeff Sessions is no doubt relieved to be gone as Attorney General. Some of the doomsday observations are a bit fevered, but there is no doubt that congressional oversight received a shot in the arm from the election results. And, there is no doubt that hard-charging, partisan investigations, as such inquiries especially tend to be in the House, are hard on executive branch lawyers, staff and witnesses as Politico notes: ‘It’s depressing as hell’: Dem win would spell misery for Trump White House aides…
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Summer of Love to Altamont Murder: Innocence, Guilt and Corporate Compliance In A Kavanaugh Era
The recent furor over the nomination and confirmation of Judge (now Justice) Brett Kavanaugh puts us in mind of a messy truth for companies and businesspeople who must deal with investigations and charges of all stripes, whether as the investigator (in conducting a corporate internal investigation, for example) or as the subject of the charges (a grand jury investigation, or a regulatory enforcement action, or at trial). In order to create workable compliance programs; to advance a corporate culture the way we wish to; or to defend a company or its executives or employees, we need to come to terms with with a truth not so much “un-American” as “a-American,”…
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The Winter Olympics of Cooperation: The Bridge On The River Kwai, White-Collar Self-Image and Federal Sentencing
With all of the discussion about Special Counsel Robert Mueller and his “cooperators,” now is an appropriate time to revisit the basics of “cooperation” in white-collar investigations. “Cooperation” is a complex concept for individuals and businesses caught up in white-collar criminal cases, compliance reviews and breakdowns of business ethics. As with the more obscure or corrupt Winter Olympic events, there are ways to demystify the complexity, but it is not easy. In David Lean’s 1957 film The Bridge On The River Kwai, we see cross-currents of duty, vainglory, cooperation, resistance, collaboration and death. (We also hear some great whistling, but that is another matter). All of these ideas and emotions come…
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Cooperation, and Something to Cooperate With
From The Hill: With Mueller’s probe advancing behind closed doors, it is impossible for onlookers to judge the value or extent of any one witness’s cooperation. At the same time, observers say the deals Mueller has struck signal he believes their cooperation to have significant value. “If they have struck a deal where they’re going to cooperate, then that’s a pretty good indication that special counsel’s office believes they have something worth cooperating over,” said Jack Sharman, a former special counsel to Congress for the Whitewater investigation. Read the full story by Morgan Chalfant here.
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13 Books Every White-Collar Lawyer Should Read
Of the making of lists of books, there shall be no end. Nevertheless, herewith is one more. Set out below are 13 works that every white-collar lawyer – defense counsel, prosecutor or judge – should read. Why take on such a presumptuous project? Three good reasons. First, lists start conversations. Although law is (or was) a “learned profession,” relatively few lawyers in my experience have read broadly or deeply since college. The press of work does not allow otherwise. Our professional learning is utilitarian, narrow, cramped and quickly (or gratefully) forgotten. Second, the proponent of such a list (that is, me) must review, reconsider or even reread works first encountered…
