After years of trying to prevent fraud and corruption in corporations at home and abroad, the U.S. Department of Justice (DOJ) has hired a corporate compliance expert. Several reports have stated that this expert is Hui Chen, the former head of compliance for Standard Chartered Bank and ex-assistant general counsel at Pfizer Inc. The DOJ believes that an expert in this field will allow the DOJ to determine more effectively if corporations should be criminally charged for failing to prevent wrong doing. This expert will also determine if all possible measures and programs were implemented under the Foreign Corrupt Practices Act (FCPA), yet the crime occurred anyway.
This is important because the DOJ has recently revised its guide on the FCPA and wrote this revised guide in conjunction with the SEC. The DOJ also received input from the Department of Commerce and the State Department. The guide covers a wide range of topics including bribes and accounting, proper gifts and improper gifts, travel and entertainment expenses. It sets forth all statutory requirements for businesses along with the enforcement of the law. It also lays out the requirements and practices that companies must begin implementing in order to stay compliant. While not all organizations will be able to afford the latest software programs to help prevent fraud and other crimes, there are other ways to implement programs and still remain compliant. If an organization is investigated for wrong doing and can show that they have programs in place to prevent wrongdoing, they may be able to avoid criminal prosecution.
Several other countries have begun implementing their own guide to help prevent company wrongdoing. One example is Brazil which revised its Clean Company Act in March 2015. The purpose for the revision was to give companies who implement programs to prevent corruption more leniency and greater benefits than companies that do not. The United Kingdom also executed a new law governing corruption. The UK Bribery Act was enacted to help prevent bribery by making companies criminally liable for these actions while providing companies who have fulfilled the requirements to prevent bribery an affirmative defense.
In November 2015, the Department of Justice Fraud division retained Hei Chen to become the first full time compliance expert. She has many years of compliance experience with many major corporations such as Microsoft and Pfizer Inc. Her compliance experienced includes the technology, banking and pharmaceutical industries. She is a skilled at compliance investigations and has conducted investigations in several countries including Asia, Europe, Latin America and the Middle East.
Ms. Chen will to be charged with determining if the compliance programs set up by companies are effective or just an attempt to pacify the DOJ. She will look at companies that are under investigation to help determine if their programs are adequately working as intended or not. Further, Ms. Chen will work with the Fraud Section to identify remedial measures for any company under investigation. The goal of compliance counsel is not to inflict unreasonable, burdensome, or unnecessary requirements on companies. Rather, the goal is to attain appropriate compliance for the organization. These programs will help determine whether a company will be criminally charged or if the organization is able to resolve the criminal matter.
If you are unsure as to whether your organization is compliant with the law, a qualified international business attorney will be able to assist you to analyze the specific facts of your situation and provide legal counsel.