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Detailing a “new era” of Foreign Corrupt Practices Act (FCPA) enforcement, Lanny Breuer Assistant Attorney General of the Criminal Division in the US Department of Justice said that those worried about more aggressive anti-bribery enforcement “are right to be more concerned.” In prepared remarks, Breuer said, “Our FCPA enforcement is stronger than it’s ever been - and getting stronger.” He noted that in the past year, more than $1 billion in criminal penalties had been imposed in FCPA- related cases, the most ever in any single 12-month period.

The Justice Department announced its largest bust under the Foreign Corrupt Practices Act ever on January 20th, arresting 22 people on charges of trying to pay bribes to a foreign official to secure contracts for weapons sales. The foreign official in this case was actually an undercover FBI agent. This signals a new commitment by the Justice Department to conduct large FCPA investigations (this case alone stretched from Las Vegas to London and involved 150 or more investigative agents) with sophisticated tools and strategies.

A Siemens AG (NYSE:SI) subsidiary's widely reported problems with a whistle blower and federal government contracts should serve as a cautionary tale for all businesses now subject to the FAR/DFAR mandatory disclosure requirements.

This week at the National Contract Managers Association's (NCMA) Annual Congress in Long Beach, California, I heard a number of concerns from those nervous about the FAR/DFAR's new ethics and mandatory disclosure requirements for government contractors. But, I also heard many strong indications from government contracting officers that they view this new basis for suspension and debarment as being both welcome and long overdue.

This is the first in a series of posts about the many new compliance obligations contained within the recently signed, recovery Act, formally called the American Recovery and Reinvestment Act. The initial posts will not focus on the expected reforms related to new rules for executive compensation at companies taking government bailout money but instead will highlight lesser known new policy reforms on data protection and privacy, healthcare, taxes, and corporate whistleblowers. Part One looks at how the law expand's HIPAA scope and the the compliance risks associated with breaches of Protected Health Information or PHI. To enhance enforcement, the Act also makes HHS audits of HIPAA-covered companies mandatory and requires investigation of privacy and security rule related complaints. Although we can describe the rough contours of the changes based upon statutory language the HIPAA provisions also will be subject to rulemaking that will determine more exactly how challenging managing the new reforms may be.

The Past is a Foreign Country:Old Rules+New Technologies = Surprising Risks

L.P. Hartley, the English author, once memorably wrote that “The past is a foreign country; they do things differently there.”


I am not yet old enough to collect Social Security retirement benefits. When I attended law school and entered into the practice of law, people appearing to talk to themselves as they walked down the street were considered deranged; Bluetooth was a temporary dental problem resulting from eating fruit; Blackberries were a fruit; Google was the misspelling of a very high number; cells were places in jails where criminal clients were detained; Shepardizing a case involved red paperback books; and Spam was a canned pink gelatinous substance that pretended to be meat.

Not long ago, I responded to a comment about fraud and misconduct not being reported, with reflections on the history of the defense industry and the Qui Tam amendments to the 1986 U.S. False Claims Act. This week, in ALLISON ENGINE COMPANY, INC., et al., PETITIONERS v. UNITED STATES ex rel. ROGER L. SANDERS and ROGER L. THACKER, the U.S. Supreme Court made news when it voted unanimously in favor of restricting the whistleblower provisions of the False Claims Act. The bottom-line appears to be that whistleblowers will not be rewarded, if they cannot prove the false claim was a key factor in the Government's decision to make payment.

Probably good law, but not good sense.