In today’s dynamic legal environment, the laws regulating our behavior as individuals and the behavior of businesses have become more complex. As a result, individuals and businesses are increasingly exposed to civil and criminal liability.
Further, when interacting and developing business with governments, and providing goods and services to governments, a business and its employees must understand and follow all applicable laws. This is not easy, even for the most seasoned business. Foreign governments, the U.S. Federal Government, and state and local governments all have their own approach, creating a patchwork of intersecting and sometimes competing laws and regulations that constantly change. It is a challenging environment with risks to businesses and individuals alike, including the prospect of criminal prosecution, civil lawsuits, and damage to an organization’s reputation.
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It Can Be Lobbying
You may be lobbying and not even know it. Depending on the applicable law, a business and its employees or outside consultants may be required to register as lobbyists when communicating with government officials or employees to establish good will or to develop business. Lobbying registration is often required within days of the contact with the government and usually requires an on-going duty to register. When registering, lobbyists must disclose time spent, expenses incurred, and communications that occurred during the lobbying activity. Often, lobbying laws require a certain time or expense threshold be met for the communication to be considered lobbying. Registered lobbyists may also face additional requirements like being prohibited from buying lunch for a government employee or being required to wear a badge when at a government site.
Cassidy Law can identify the lobbying laws that apply to your business and can assist you in complying with those laws.
A Risk Overseas and Here in the US
The US Government, foreign governments and international organizations have made a policy commitment to combat corruption globally to improve government accountability, foster economic growth and decrease poverty. These initiatives have increased both the number of anti-corruption laws and the number of actions seeking to enforce them.
In many countries businesses are owned, controlled or managed by the government, government officials, royal families, or members of a political party. As a result, providing favors, business courtesies or other hospitality to retain business or to develop new business may violate anti-corruption laws like the U.S. Foreign Corrupt Practices Act (FCPA). So, when developing business with a government client, or providing goods and services to them, you need to be sure that your efforts to build relationships do not violate anti-corruption laws through improper business courtesies or favors.
Also, since your business may need to rely on local agents, consultants, distributors, or other business partners to develop relationships or to sell your products and services in many countries, you need to make sure that your business partners are complying with the laws and that the fees or commissions you pay them do not enable or facilitate behavior that may violate anti-corruption laws, like the FCPA.
Although the business community is increasingly aware of global anti-corruption efforts, you must remember that, when doing business with the Federal Government, state governments, and local governments in the US, you also have to follow the anti-corruption laws of the jurisdiction where you are doing business to avoid illegal conduct when interacting with officials or employees who work for governments here in the U.S.
Call or email Cassidy Law for legal counsel on complying with the FCPA and anti-corruption laws, regulations and policies of the Federal Government, state and local governments and other organizations like NATO, the World Bank or the United Nations. To learn more about proactively managing the risk of non-compliance with anti-corruption laws, review the Ethics and Compliance section below.
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Campaign Contributions, Hosting Fundraisers and Volunteering for Candidates – Its a Minefield!
“Pay-to-play” is a phrase used to describe instances when a business or one if its employees helps a candidate for office in exchange for a government contract. In an attempt to stop the practice of trading political support for government contracts, some state and local governments have passed laws that limit or restrict campaign contributions and gifts from organizations and individuals seeking to do business, or already doing business, with the government. These laws differ by jurisdiction.
If your organization (whether commercial or non-profit) or its employees support a candidate for political office by writing a check to the candidate or his or her committee, hosting fundraisers, or even volunteering time to the candidate’s campaign, you may be excluding your business from government contract work, or your business may be exposed to criminal and civil liability. Campaign laws may not only limit or restrict your business or your employees from making campaign contributions, but may also limit or restrict your employees’ spouses and dependent children from making contributions. Some campaign laws may require your business to disclose the contributions your business and your employees made; or your business and your employees may be limited or restricted in making campaign contributions for only a short period of time or only for certain types of contracts, like a sole source contract.
Cassidy Law can identify the campaign finance laws that apply to your business and can assist you in complying with those laws.
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Are They Really Regulated?
Who would have thought that lunch can be a prohibited “gift?” It can be, depending on the jurisdiction. Gift laws and ethics laws regulate when organizations may provide items of value to government persons or when a government person may accept an item of value. “Items of value” may include lunches, tickets to events, campaign contributions, offers of employment, and even invitations to seminars or training. Often these laws limit, restrict or require disclosure of gifts, meals, and other items of value. As a result, activities that are perfectly appropriate with commercial clients, like buying lunch, talking about employment opportunities with your organization, or inviting a client to attend a seminar or training, may violate Federal, state or local laws or agency regulations when you offer or provide them to a government person.
Sanctions can be significant. Providing a “gift” or “favor” in violation of the law may result in your organization or employees being suspended from doing business with the government or being targeted for criminal or civil penalties.
Cassidy Law can identify the gift and ethics laws that apply to your business and can assist you in complying with those laws.
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Transparency, Honesty and Precision Required
Federal Government contracting has exploded in the past several years. As a result, the Federal Government has become a significant client for many businesses. But, providing goods or services to the Federal Government requires that organizations, whether a commercial or non-profit, precisely follow the intricate laws and regulations on how to interact with the Federal Government, how to develop business with the Federal Government, how to provide services or products to the Federal Government, and how to invoice the Federal Government. Depending on how much business you do with the Federal Government, you may be required to have a documented ethics and compliance program. Even if you do not do enough business to require a formal program, your business must always be “responsible” in order to do business for the Federal Government.
Federal Government contracting laws cover many aspects of working with the Federal Government. For example, the False Claims Act essentially mandates that certain information your business provides to the Federal Government and that the Federal Government relies on to make a decision or to pay invoices must be accurate, complete and current. Also, your organization needs to avoid having an organizational conflict of interest in executing Federal Government contracts. And, in certain Federal Government contracts, employees must certify that they do not have a personal or financial interest in performing the work. There are also laws that regulate the information the Federal Government may provide during the procurement process; that regulate recruiting Federal Government employees; and that regulate interactions with prime contractors or subcontractors.
Failing to comply with these laws and regulations may result in criminal, civil or administrative penalties both to your organization and in many instances to the individual who has failed to comply. Even in instances when a Federal Government investigation or audit is resolved in your favor there are still significant costs as a result of responding to the investigation or audit. Finally, any finding of wrong-doing, will damage your business’ reputation.
Call or email Cassidy Law for legal counsel on complying with Federal Government contracting laws and regulations. To learn more about programs that can help mitigate against improper behavior or more information about establishing a required ethics and compliance program, visit the Ethics and Compliance section.
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Following the Law
Running a profitable and respected organization mandates that business leaders increase revenue and decrease costs. However, as governments, shareholders, media, business partners, customers and employees increasingly scrutinize business practices, businesses must also be confident that their operations not only comply with the laws, but that their decisions are integrity based. This combined with the fact that the Federal Government, all fifty states, countless local jurisdictions, and just as many foreign governments have their own laws and regulations, make it a challenge to not just follow the law but also to simply identify those laws that actually apply to your business.
An investment in an ethics and compliance program, responsive to the unique culture and business model of your organization will provide the framework to foster compliance. An effective way to avoid costly and time consuming investigations and criminal or civil litigation as well as reputational damage that can arise from a criminal investigation, a shareholder derivative suit, a whistleblower suit or a civil action, is to construct an ethics and compliance program that gives leadership confidence that employees have the resources needed to comply with the laws and act with integrity. Further, many businesses are required or encouraged by law, regulations or standards to have an ethics and compliance program. For example, most Federal Government contractors are required to have an ethics and compliance program. and to assure compliance with the FCPA businesses working with governments should also have a compliance program.
WIth particular focus on assisting clients who aspire to work with foreign, federal, state or local governments or who are currently working with governments, Cassidy Law can provide your business legal guidance to create or enhance on ethics and compliance program responsive to your business’ particular compliance requirements and business needs.
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Something Might Be Wrong
As a result of increased government, shareholder, media and customer scrutiny along with recently enacted whistleblower laws that encourage employees to bring their issues to the government, businesses often need to conduct internal investigations of their operations or the choices that their leaders and employees have made. An investigation may also be necessary as a result of an internal question or concern raised by an employee; a complaint or dispute with a customer or business partner; or as a result of findings from an internal audit or review. A thorough, impartial and efficient investigation, conducted under attorney-client privilege, provides confidence that the matter was properly reviewed and thus may mitigate the risk of the complainant or a stakeholder seeking redress outside of your organization.
When faced with the need to conduct an investigation, Cassidy Law will coordinate with you to develop and document an investigative plan. After agreeing on an investigative strategy, Cassidy Law will review relevant documents and will craft appropriate questions and pose those questions in a fashion that elicits the necessary information. Working with Cassidy Law will afford you a straightforward assessment on the results of the investigation along with an assessment of the impact the findings may have on your business. Cassidy Law will identify the applicable laws and make practical recommendations on executing the next steps to prevent or mitigate damage to your business, and to enhance or improve your compliance programs.
If you need advice on whether an investigation is necessary, or if you have concluded that an investigation is necessary and need assistance in conducting it, call or email Cassidy Law.
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Something is Wrong
Criminal charges, criminal investigations, grand jury investigations, Office of Inspector General investigations, or any government investigation are challenging matters which may impact your freedom, your financial security, your employment, your business, your reputation and, possibly, you and your family. Before you talk with the government about anything that you, a family member, co-worker, or friend may have done, you should first talk with a lawyer to help you understand the government’s interest in the matter. After gaining an understanding of the facts from you, Cassidy Law will develop a plan to further investigate the matter and, if appropriate, will work with government investigators and prosecutors to gather all information relevant to your defense and to ensure the government provides all information to which you are entitled.
Ultimately, Cassidy Law will collaborate with you to develop a strategy to face and resolve the matter. Cassidy Law has experience with the criminal justice system and an understanding of how investigations, trials and plea agreements work. If your matter is best handled through negotiating an agreement with the government, Cassidy Law will negotiate a resolution with the government on your behalf. On the other hand, if your matter warrants a trial, Cassidy Law will provide you a determined, tenacious, and passionate defense.
Either way, Cassidy Law will provide you an honest assessment of your case so you can evaluate your options. Besides providing you a genuine and authentic lawyer and client relationship, Cassidy Law will focus your time and money on the issues that are determinative to your defense.
Call or email Cassidy Law for counsel if you think you may be facing criminal investigation, if you are under criminal investigation, if you have been charged with a crime, or if you have been subpoenaed.