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Total Articles: 17

New DOJ Policy Likely to Result in Increase in Forfeitures

Attorney General Jeff Sessions has announced a new Department of Justice policy regarding the federal adoption of assets seized by state or local law enforcement under state law. The new policy, issued on July 19, 2017, is intended to strengthen and streamline the civil asset forfeiture program allowing a more aggressive pursuit of asset forfeiture cases and the increased sharing of proceeds of those seizures with local law enforcement.

Department of Justice Renews Commitment to Enforcement of Foreign Corrupt Practices Act

During his campaign, President Donald Trump raised uncertainty with statements that he disapproved of the Foreign Corrupt Practices Act. Since then, however, the Department of Justice has emphasized its continued enforcement efforts for FCPA violations.

Association of Corporate Counsel Develops Model Information Protection and Security Controls for Outside Vendors, Including Outside Counsel

The Association of Corporate Counsel (ACC), which represents over 42,000 in-house counsel across 85 countries, recently released its ACC Chief Legal Officers (CLO) 2017 Survey which found that two-thirds of in-house legal leaders ranked data protection and information privacy as ‘very’ or ‘extremely’ important.

Government Failure to Prove Actual Losses Means No Restitution to Victims under Restitution Act, Court Rules

The Mandatory Victims Restitution Act of 1996 provides that defendants convicted of crimes committed by “fraud or deceit” must compensate victims for the full amount of their losses. A question that courts often face is whether the government and victim have provided sufficient evidence of their actual losses to obtain restitution under the MVRA. The U.S. Court of Appeals for the Eleventh Circuit, in Atlanta, has provided new guidance in United States v. Stein, No. 14-1521 (11th Cir. Jan. 18, 2017).

Self-Disclosure Analysis of FCPA violations and the New Administration

On April 5, 2016, the Department of Justice had set forth a Foreign Corrupt Practices Act (“FCPA”) Enforcement Plan and Guidance on enforcement, announcing an FCPA enforcement pilot program to promote greater accountability for individuals and companies that engage in corporate crime by motivating companies to voluntarily self-disclose FCPA-related misconduct, fully cooperate with the DOJ, and, where appropriate, remediate flaws in their controls and compliance programs.

False Claims Act Particularity Standard Still Unclear But New York & New Jersey Cases Provide Additional Guidance

We are seeing a growing number of False Claims Act (“FCA”), 31 U.S.C. §§ 3729 – 3733 cases where defendants test the sufficiency of relators’ pleadings, which is the heightened pleading standard under Rule 9(b). Rule 9(b) acts as a gatekeeping function by requiring that “in alleging fraud” a “party must state with particularity the circumstances constituting fraud.” In general terms, under Rule 9(b), courts require Relators to plead with particularity the “who, what, when, where and how” of the supposed fraudulent activity. See Kanter v. Barella, 489 F.3d 170, 175 (3d Cir. 2007). However, the question of what constitutes such “particularity” remains an open question, as courts continue to grapple over whether “particularity” requires a relator to identify specific false claims that were submitted for payment by a federal health care program.

Department of Justice’s Asset Forfeiture Program Takes Huge Hit as Congress Eliminates Funding

The Department of Justice is suspending a program allowing local police departments to keep a large portion of assets seized under federal law, the Department announced December 21.

Greater Emphasis On Corporate Compliance Programs

Early in 2015, the FBI launched a new program aimed at routing out foreign bribery in which it established three dedicated international corruption squads, based in New York City, Los Angeles, and Washington, D.C. The FBI reported that members of these three squads—agents, analysts, and other professional staff—have a great deal of experience investigating white-collar crimes and, in particular, following the money trail in these crimes. Now, the Department of Justice is taking aim at corporations and investing resources into the evaluation of the effectiveness of corporate compliance programs.

Justice Department Announces Recovery Of Over 3.5B From False Claims Act Cases In Fiscal Year 2015

The Justice Department announced that it secured over $3.5 billion in settlements and judgments from civil cases involving fraud against the government in the fiscal year ending September 30, 2015 (“FY2015”). This is the fourth year in a row that the Justice Department has recovered more than $3.5 billion in cases under the False Claims Act (“FCA”) and brings the total recoveries under the FCA to $26.4 billion since January 2009.

The DOJ on D&O: What You Need to Know

In September the Department of Justice released its new directive on individual accountability for corporate wrongdoing in a revived effort to fight corporate fraud. The “Yates Memo” by Deputy U.S. Attorney General Sally Quillian Yates, outlines the DOJ’s policy on targeting and pursuing corporate executives in cases of corporate wrongdoing. With the DOJ’s new guidelines companies should be taking a fresh look at their D&O insurance.

Watch Out C-Suite: the DOJ Has Laid Out a Plan to Increase Actions Against Individuals in Corporate Wrongdoing Cases.

In recent years, there has been a continuing emphasis by the Department of Justice (DOJ) on investigations of corporate wrongdoing, including an increase in the investigation and finding of individual liability for that wrongdoing. This emphasis recently was documented in something now being referred to as the “Yates Memorandum.”

How Accountable Are America’s Workplaces? An Interview with Linda Galindo

Linda Galindo is a speaker, educator, and author who works with corporations around the world to improve accountability. I asked her to discuss accountability at all levels in corporate culture in the United States.

How To Build an Ethical Organization

2/3 say we are getting less ethical. What to do about it.

Are We Getting More or Less Ethical?

Recent studies seem to indicate that US businesses are getting less and less ethical.

When Do Exaggerations and Misstatements Cross the Line?

When public figures are caught embellishing their accomplishments or qualifications, whether by exaggeration or misstatement, people everywhere express outrage. Indeed, as more and more politicians, CEOs and other big names these days try to make amends for fudging their resumes, incorrectly relating the details of a story or otherwise playing fast and loose with the facts, the general reaction from an increasingly jaded public is: "What were they thinking?"

FTC Guidelines May Create Company Liability for Employees' Online Endorsements.

In October 2009, the Federal Trade Commission (FTC) issued final guidelines, which became effective on December 1, 2009, regarding the use of “endorsements and testimonials” in advertising. “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” 16 CFR Part 255. Under those guidelines, employees who use social media like blogs or Facebook to make statements about their employers’ products may create unintended legal liability for their employers if a consumer later claims to have been misled into purchasing an allegedly dangerous or defective product by such a posting.

Are Overconfident Executives More Inclined to Commit Fraud?

No one makes it to the top ranks of corporate management without a healthy amount of self-assurance. Confidence underlies decisive, strong leadership, but does overconfidence lead managers to cross the line and commit fraud?
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