A PubKGroup Product
With PubKCompliance, federal contractors can stay abreast of the changing regulatory environment and avoid running afoul of legal and ethical mandates. We deliver to your inbox the latest information on ethics, compliance, and enforcement impacting government contracting — from best practices and insights, to government audit and investigation reports and Congressional and GAO oversight, to False Claims Act cases and suspensions and debarments.
A curated email to stay up to date on the changing compliance and enforcement environment
PubKCompliance Event Board
Upcoming training and other events
Quickly find past developments at no additional cost
In a new advisory, Steptoe & Johnson examine FCPA enforcement actions and trends during 2017 and the first quarter of 2018. 2017 was a year of transition for US enforcement of the Foreign Corrupt Practices Act and saw a substantial increase in global anti-corruption enforcement. Last year started with a flurry of FCPA enforcement at the conclusion of the Obama Administration, followed by a prolonged lull as the new administration reviewed enforcement policies and filled key positions at the US Department of Justice and Securities and Exchange Commission. FCPA enforcement resumed in earnest in the third and fourth quarters of 2017, putting the year well within the usual range of reported corporate and individual prosecutions for the last five years. Those enforcement trends continued in the first quarter of 2018, with both the DOJ and SEC inking corporate resolutions.
In U.S. ex rel. Cressman v. Solid Waste Services, Inc., the U.S. District Court for the Eastern District of Pennsylvania granted a motion for summary judgment filed by a waste company in an implied certification case under the False Claims Act, holding that the relator failed to satisfy the Supreme Court’s materiality standard announced in the landmark Escobar case.
A Conversation With Camilla de Silva (Joint Head of Bribery And Corruption – U.K. Serious Fraud Office)
In a half-hour audio interview, Camilla de Silva, Joint Head of Bribery and Corruption at the U.K. Serious Fraud Office, discusses:
- Whether the Bribery Act (including both “hard” and “soft” enforcement) has been successful in achieving its objectives;
- The Serious Fraud Office position on ISO 37001;
- Whether the Rolls-Royce enforcement action conflicted with Article 5 of the OECD Convention; and
- The U.K.’s approach to multi-jurisdictional issues.
On March 30, 2018, in United States ex rel. Drennen v. Fresenius Medical Care Holdings Inc., a district judge in the District of Massachusetts granted the dialysis company’s motion to strike three common law counts that the government added when it intervened and filed its complaint more than six and a half years after the relator filed his qui tam complaint and one year after the completion of fact discovery. The court reasoned that although when the government intervenes in a suit while the complaint is under seal it is entitled to an “editor’s privilege” that allows it to revise the complaint freely before it is unsealed, it is a different matter when the government intervenes after the case has been unsealed because 31 USC § 3730(c)(3) requires the court’s permission and a showing of good cause.
By intervening in the Drennen complaint at such a late stage, the government was “getting on a moving train” because the claims against Fresenius were already defined and extensive discovery related to those claims had already taken place. Finding that the late addition of the common law claims would prejudice the defendant, the court granted the motion to strike.
FCPA consultant Tom Fox interviewed two executives of Affiliated Monitors, Inc. about considerations a company should employ when retaining a corporate monitor. They suggest starting with a clear set of goals for the monitorship, depending on the circumstances. Is the monitor coming in to simply investigate the company, or to help prevent or resolve issues? What is the value the monitor will deliver to the organization? One “soft” value they suggest is that the work of the monitor in surveying employees can be good for morale.
An important consideration is the expertise of the monitor, not just in terms of subject matter, but how they will work without disrupting your organization or working to keep such disruptions to a minimum. They must also be “independent and conflict free” to avoid putting their findings at risk.
Other important factors to consider are the scope of the monitorship, the frequency and duration of activities, and the experience level of the monitor.