Your Compliance Program and Enforcement


This session at Compliance Week Conference 2009 was another “dark session” so I am not sharing detailed notes, merely a perspective on some issues that were presented. John Roth, an Assistant U.S. Attorney in the Fraud and Corruption Section shared his insights and Bruce Carton did his best Phil Donahue impression by eliciting questions from the audience.

There was a big turnout for this session. The organizers were only expecting 20-30 and ended up with over 100. Anything said by Mr. Roth was his opinion alone and not necessarily those of his office or the Attorney General.

One item was the difference between the Principles of Prosecution in the U.S. Attorney General’s Handbook and the Federal Sentencing Guidelines. The Guidelines only come into play once the organization has been indicted and convicted. The Principles of Prosecution help the Attorney General’s Office decide whether to prosecute in the first place. The Guidelines are a product of compromise between the Attorney General, the defense bar and federal judges. At this point they have also been made discretionary instead of mandatory. It seems that compliance programs should be more focused on the Principles of Prosecution instead of the Federal Sentencing Guidelines.

There was much discussion that it is much easier to identify a bad compliance program (or no compliance program) than a good compliance program. Much of the learning comes from failures of compliance programs instead of the successes.

Prosecution success causes more prosecution in those areas. FCPA prosecutions are increasing because they are being successful. We can expect to see more. The were rumors that the FBI has formed a squad to focus on FCPA criminal investigations.