Compliance Bits and Pieces for September 10

It’s back-to-school week for me (well … my kids). That means summer is over and time to re-focus on good compliance and ethics. Here are some stories on those topics that popped up recently:

Boards of directors: Clueless, but not criminal, mostly by Matt Kranz in USA Today

Directors are rarely charged with fraud. The SEC doesn’t maintain a count of outside directors accused of fraud. But since 1996, the SEC has brought only about nine significant actions against outside directors, the agency says.

Unintended Consequences by Bill Piwonka in Integrity at Work

[A]s governments worldwide enact legislation to decrease the incidents and impacts of unethical behavior, there is a greater chance the various laws will be inconsistent across boundaries. For instance, Sarbanes-Oxley requires publicly held US companies or those listed on US exchanges to offer a way for employees to anonymously report financial misconduct, yet Portugal and Spain have outlawed anonymity. The FCPA allows for facilitation payments in certain circumstances, but the UK Bribery Act forbids them entirely. And so on.

The SEC Departs from an Important Safeguard by Wayne Carin in The Harvard Law School Forum on Corporate Governance and Financial Regulation

Recently, the SEC made permanent the delegation of its statutory formal order investigation authority to the Director of the Division of Enforcement. This delegation, which the Enforcement Director has sub-delegated to senior enforcement staff, essentially transfers the SEC’s broad authority to invoke its subpoena power to numerous of its enforcement staff without any apparent oversight.

My Two Cents On The FCPA’s Affirmative Defenses by Mike Koehler in FCPA Professor

For starters, I respectfully disagree with Sheahen’s statement that “business and businessmen accused of giving bribes to foreign officials have fared poorly in federal courts” as well as the implication that this somehow supports his thesis. The three FCPA trials cited from 2009 – Frederick Bourke, William Jefferson, and Gerald and Patricia Greene were a mixed bag for the DOJ, not slam-dunk successes.

Image of a Thomas Saf-T-Liner HDX school bus is by Joedamadman.