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How can companies effectively remediate after uncovering misconduct? In this episode of All Things Investigations, Tom Fox discusses with Mike DeBernardis the lessons learned from the recent Albemarle FCPA enforcement action and settlement. They analyze the company's self-disclosure timeline, the credit received for holdbacks, and the overall cooperation and remediation efforts that led to a favorable NPA. Mike DeBernardis is a partner in Hughes Hubbard's Washington office and a member of the firm's Anti-Corruption and Internal Investigations and White Collar & Regulatory Defense practice groups. He assists clients with internal investigations relating to high-stakes matters, including corruption under the Foreign Corrupt Practices Act, procurement fraud, financial and accounting fraud, money laundering, and other ethics issues and violations of company policy. You'll hear Tom and Mike discuss: The DOJ deemed Albemarle's self-disclosure untimely, even though it was voluntary and unknown to the government. The 16-month delay from learning of allegations to disclosing crossed the line per updated standards. Companies should carefully evaluate timing when self-disclosing misconduct if they want to maximize credit. Even voluntary disclosures can be considered untimely under an evolving reasonableness standard. Albemarle discovered allegations in Vietnam in 2016, confirmed misconduct in early 2017, and then disclosed in January 2018 when FCPA Corporate Enforcement Policy permanence was still uncertain. $780,000 in total bonuses were held back from employees directly involved, those with supervisory responsibility, and other relevant staff. Albemarle received a full 1:1 penalty offset. Contractual ability to withhold bonus payments is easier to execute than clawbacks of compensation already disbursed, especially across regions. Settlement dynamics were shifting during Albemarle's decision timeline, but current standards still applied for judging timeliness. Pandemic delays also won't change future judgments. The egregiousness and duration of Albemarle's schemes across multiple countries involving high-level executives would typically warrant a DPA or plea deal. Their cooperation and remediation directly led to the NPA result. Albemarle thoroughly investigated, cooperated, remediated, and self-disclosed even though the misconduct was not yet government-known. This approach clearly benefited them. Implementing data analytics was called out in the settlement documents specifically. Even basic initial steps were still recognized and rewarded by the DOJ. Resources Hughes Hubbard & Reed website Mike DeBernardis on LinkedIn
In this special 5 part podcast series, I am taking a deep five into the Monaco Memo and analyzing it from a variety of angles. In this episode of the FCPA Compliance Report, I am joined by fan fav James Koukios, partner at MoFo. James is a former member of the FCPA Unit and in this podcast we take a deep dive into the Monaco Memo. Some of the highlights include: 1. Issues involving individual accountability. 2. Burden shifting on communications devices and timeliness of self-disclosing and reporting. 3. How the Monaco Memo lays out DOJ expectations? 4. Monaco Memo at 30,000 ft and ground level. . 5. Tweaks to the Yates Memo formulation. 6. New requirements to the FCPA Corporate Enforcement Policy 7. Will the incentives be enough? Resources James Koukios on MoFo Tom 5-Part blog post series in the FCPA Compliance and Ethics Blog 1. A Jolt for Compliance 2. Timely Self-Disclosure 3. Corporate Compliance Programs 4. Monitors 5. Polite Speech Monaco Memo Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode of the FCPA Compliance Report, I am joined by fan favorite James Koukios, partner at Morrison and Foerster. In this episode we take a deep dive into the Lisa Monaco speech from October and related remarks from other DOJ representatives about the DOJ refocus on white collar enforcement and related issues. Highlights of this podcast include: · Who is the DAG and what does that position entail? · Reinstatement of Yates Memo. · Does this change an investigation focus? · The new focus on culture and how do you assess corporate culture? · What about reports of all violations, enforcements and even investigations even is outside FCPA? · What are the implications of this change? · How will all this work with current FCPA Corporate Enforcement Policy? · The revocation of Benczkowski Memo. What are the implications? · The new focus on monitorships? · What about recidivists or those who fail to meet the obligations of their DPA/NPA? Resources James Koukios on the MoFo website. Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the compliance professional and the compliance function in a corporation has steadily grown in stature and prestige over the years. When it came to the corporate compliance function, 2020 FCPA Resource Guide, under the Hallmarks of an Effective Compliance Program, simply noted the government would “consider whether the company devoted adequate staffing and resources to the compliance program given the size, structure, and risk profile of the business.” This Hallmark was significantly expanded in both the FCPA Corporate Enforcement Policy and 2020 Update. In the FCPA Corporate Enforcement Policy, the DOJ listed the following as factors relating to a corporate compliance function, that it would consider as indicia of an effective compliance and ethics program: 1) the resources the company has dedicated to compliance; 2) the quality and experience of the personnel involved in compliance, such that they can understand and identify the transactions and activities that pose a potential risk; 3) the authority and independence of the compliance function and the availability of compliance expertise to the board; 4) the compensation and promotion of the personnel involved in compliance, in view of their role, responsibilities, performance, and other appropriate factors; and 5) the reporting structure of any compliance personnel employed or contracted by the company. The 2020 Update and FCPA Corporate Enforcement Policy both demonstrate the continued evolution in the thinking of the DOJ around the corporate compliance function. Their articulated inquiries can only strengthen a corporate compliance function specifically; and the compliance profession more generally. The more the DOJ talks about the independence of the compliance function, coupled with resources being made available and authority concomitant with the corporate compliance function, the more corporations will see it is directly in their interest to provide the resources, authority and gravitas to compliance position in their organizations. Three key takeaways: How is compliance treated in the budget process? Has your compliance function had any decisions over-ridden by senior management? Beware outsourcing of compliance as any such contractor must have access to company documents and personnel. Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the CCO has steadily grown in stature and prestige over the years. In the 2020 FCPA Resource Guide, under the Hallmarks of an Effective Compliance Program, it focused on the whether the CCO held senior management status and had a direct reporting line to the Board. This Hallmark was significantly expanded in both the 2020 Update and the FCPA Corporate Enforcement Policy. And in so doing, the DOJ has increased the prestige, authority and role of both the CCO and corporate compliance function. The 2020 Update has five general areas of inquiry around the CCO and corporate compliance function. (1) How does the CCO salary and stature within the organization compare to other senior executives within the company. (2) What are the experience and stature of the CCO with an organization? Does the CCO have appropriate training for the role? (3) How much autonomy does the CCO have to report to the Board of Directors? How often do the CCO meet with directors? Are members of the senior management present for these meetings with the Board of Directors or of the Audit Committee? (4) What is your structure? Is the compliance function run by a designated chief compliance officer, or another executive within the company, and does that person have other roles within the company? (5) Is data in your organization so siloed that the CCO does not have access to it? If so, what are you doing about it? Once again for the compliance professional, the FCPA Corporate Enforcement Policy and 2020 Update make the importance of a best practices compliance program even more critical. The DOJ is focusing more on the role, expertise and how the compliance function is treated within an organization. Pay your CCO considerably less than your GC? You may now better be able to justify that discrepancy. If you have a legal department budget of $3 million and a compliance department budget of $500,000; you may be starting behind the eight-ball. Three key takeaways: How can you show the CCO really has a seat at the senior executive table? What are the professional qualifications of your CCO? Does your CCO have true independence to report directly to the Board of Directors? Learn more about your ad choices. Visit megaphone.fm/adchoices
The most significant development for Boards and compliance in 2021 came from the Delaware courts, which have been expanding the civil law obligations of Boards through a series of court decisions involving the expansion of the Caremark Doctrine for a couple of years. These developments began with the Marchand decision which required Boards to manage the risks their organizations face. Next was the Clovis Oncology which required ongoing monitoring by the Board. The next case is Hughes which stands for the proposition that having the structures, policies and procedures in place is not enough. The Board must fully engage in oversight of a compliance program. Finally in 2021 came Boeing which stands for the continuing proposition that a Board cannot simply have the trappings of oversight, it must do the serious work required and have evidence of that work (Document, Document, and Document). The decision in Boeing is yet a further expansion of the Caremark Doctrine, once again beginning with Marchand. Boeing also stands for the proposition that a company must assess its risks and then manage those risks right up through the Board level. Finally a Board must be aggressive in their approach and not simply passively taking in what management has presented to them. The DOJ has also made clear its thoughts on the role of the Board of Directors. The role of the Board is different than that of senior management. Both the 2020 Update and DOJ Antitrust Division's 2019 Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations was even more explicit in announcing their expectation for robust Board oversight of a corporate compliance function. Name any of the most recent corporate scandals; Wells Fargo, Theranos, Volkswagen, Boeing, etc., and there was no compliance expertise on the Board. It is now enshrined as a best practice for companies to have a seasoned compliance professional on the Board. I would also add the DOJ may soon expect there be a Compliance Committee separate and apart from the Audit Committee. The DOJ continually speaks about the need for companies to operationalize their compliance programs. Businesses must work to integrate compliance into the DNA of their organization. Having a Board member with specific compliance expertise or heading a Compliance Committee can provide a level of oversight and commitment to achieving this goal. The DOJ enshrined this requirement in the FCPA Corporate Enforcement Policy. This means that when your company is evaluated by the DOJ, under the factors set out in the 2020 Update and FCPA Corporate Enforcement Policy, to retrospectively determine if your company had a best practices compliance program in place at the time of any violation, you need to have not only the structure of the Board-level Compliance Committee but also the specific subject matter expertise (SME) on the Board and on that committee. All of this means that every Board of Directors needs a true compliance expert. Almost every Board has a former Chief Financial Officer (CFO), former head of Internal Audit or persons with a similar background, and often times these are also the Audit Committee members of the Board. Such a background brings a level of sophistication, training and SME that can help all companies with their financial reporting and other finance-based issues. So why is there not such SME at the Board level from the compliance profession? #Comment Begins Three key takeaways: 1. The 2020 Update required active Board of Director engagement and oversight around compliance. 2. Board communication on compliance is a two-way street; both inbound and outbound. 3. The Delaware courts have been expanding Boards roles through expansion of the Caremark Doctrine. Learn more about your ad choices. Visit megaphone.fm/adchoices
Compliance into the Weeds is the only weekly podcast which takes a deep dive into a compliance related topic, literally going into the weeds to more fully explore a subject. Today, Matt and Tom have a rare emergency podcast on DAG Lisa Monaco's speech to the ABA White Collar Institute on some very significant change to white collar, including FCPA enforcement. Some of the issues we consider are: Return to the Yates Memo. Disavowal of the Benczkowski Memo. Change in the FCPA Corporate Enforcement Policy? Whither recidivists? New enforcement tools coming? New review of DPAs and NPAs? Resources Matt in Radical Compliance, Justice Dept. Unveils Big Compliance Shifts Text of DAG Monaco Speec Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the compliance professional and the compliance function in a corporation has steadily grown in stature and prestige over the years. When it came to the corporate compliance function, 2020 FCPA Resource Guide, under the Hallmarks of an Effective Compliance Program, simply noted the government would “consider whether the company devoted adequate staffing and resources to the compliance program given the size, structure, and risk profile of the business.” This Hallmark was significantly expanded in both the FCPA Corporate Enforcement Policy and 2020 Update. In the FCPA Corporate Enforcement Policy, the DOJ listed the following as factors relating to a corporate compliance function, that it would consider as indicia of an effective compliance and ethics program: 1) the resources the company has dedicated to compliance; 2) the quality and experience of the personnel involved in compliance, such that they can understand and identify the transactions and activities that pose a potential risk; 3) the authority and independence of the compliance function and the availability of compliance expertise to the board; 4) the compensation and promotion of the personnel involved in compliance, in view of their role, responsibilities, performance, and other appropriate factors; and 5) the reporting structure of any compliance personnel employed or contracted by the company. The 2020 Update and FCPA Corporate Enforcement Policy both demonstrate the continued evolution in the thinking of the DOJ around the corporate compliance function. Their articulated inquiries can only strengthen a corporate compliance function specifically; and the compliance profession more generally. The more the DOJ talks about the independence of the compliance function, coupled with resources being made available and authority concomitant with the corporate compliance function, the more corporations will see it is directly in their interest to provide the resources, authority and gravitas to compliance position in their organizations. Three key takeaways: How is compliance treated in the budget process? Has your compliance function had any decisions over-ridden by senior management? Beware outsourcing of compliance as any such contractor must have access to company documents and personnel. Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the CCO has steadily grown in stature and prestige over the years. In the 2020 FCPA Resource Guide, under the Hallmarks of an Effective Compliance Program, it focused on the whether the CCO held senior management status and had a direct reporting line to the Board. This Hallmark was significantly expanded in both the 2020 Update and the FCPA Corporate Enforcement Policy. And in so doing, the DOJ has increased the prestige, authority and role of both the CCO and corporate compliance function. The 2020 Update has five general areas of inquiry around the CCO and corporate compliance function. (1) How does the CCO salary and stature within the organization compare to other senior executives within the company. (2) What are the experience and stature of the CCO with an organization? Does the CCO have appropriate training for the role? (3) How much autonomy does the CCO have to report to the Board of Directors? How often do the CCO meet with directors? Are members of the senior management present for these meetings with the Board of Directors or of the Audit Committee? (4) What is your structure? Is the compliance function run by a designated chief compliance officer, or another executive within the company, and does that person have other roles within the company? (5) Is data in your organization so siloed that the CCO does not have access to it? If so, what are you doing about it? Once again for the compliance professional, the FCPA Corporate Enforcement Policy and 2020 Update make the importance of a best practices compliance program even more critical. The DOJ is focusing more on the role, expertise and how the compliance function is treated within an organization. Pay your CCO considerably less than your GC? You may now better be able to justify that discrepancy. If you have a legal department budget of $3 million and a compliance department budget of $500,000; you may be starting behind the eight-ball. Three key takeaways: How can you show the CCO really has a seat at the senior executive table? What are the professional qualifications of your CCO? Does your CCO have true independence to report directly to the Board of Directors? Learn more about your ad choices. Visit megaphone.fm/adchoices
In addition to a company’s senior management, there is a Board of Directors at the top. Yet the role of the Board is different than that of senior management. For the Board of Directors, the 2020 Update stated: Oversight – What compliance expertise has been available on the board of directors? Have the board of directors and/or external auditors held executive or private sessions with the compliance and control functions? What types of information have the board of directors and senior management examined in their exercise of oversight in the area in which the misconduct occurred? Having a Board member with specific compliance expertise or heading a Compliance Committee can provide a level of oversight and commitment to achieving this goal. The DOJ enshrined this requirement in the FCPA Corporate Enforcement Policy. This means that when your company is evaluated by the DOJ, under the factors set out in the 2020 Update and FCPA Corporate Enforcement Policy, to retrospectively determine if your company had a best practices compliance program in place at the time of any violation, you need to have not only the structure of the Board-level Compliance Committee but also the specific subject matter expertise (SME) on the Board and on that committee. Another arm of the US government has recognized the need for such expertise at the Board level. In 2015, the Office of Inspector General (OIG), in a publication entitled “Practical Guidance for Health Care Governing Boards”, called for greater compliance expertise at the Board level. The OIG said that a Board can raise its level of substantive expertise with respect to regulatory and compliance matters by adding to the Board a compliance member. The presence of a such a compliance professional with SME “on the board sends a strong message about the organization’s commitment to compliance, provides a valuable resource to other board members and helps the board better fulfill its oversight obligations.” All of this means that every Board of Directors needs a true compliance expert. Almost every Board has a former Chief Financial Officer (CFO), former head of Internal Audit or persons with a similar background, and often times these are also the Audit Committee members of the Board. Such a background brings a level of sophistication, training and SME that can help all companies with their financial reporting and other finance-based issues. So why is there not such SME at the Board level from the compliance profession? Three key takeaways: The 2020 Update requires active Board of Director engagement and oversight around compliance Board communication on compliance is a two-way street; both inbound and outbound Does the Board of Directors have a compliance expert?
The FCPA Compliance Report is the longest running podcast in compliance, airing on July 31, 2015. This week begins a series of podcasts leading up to the 500th anniversary episode of the FCPA Compliance Report, which will post on Monday, August 31. Over the next five episodes, I will post podcasts of 5 top FCPA and compliance commentators. Over this week, I will be joined by Mike Volkov, Matt Kelly, Jonathan Armstrong, Jay Rosen and Jonathan Marks. Each will speak about the evolution of compliance from their own unique perspective. In this episode, I visit with Mike Volkov, founder and principal of the Volkov Law Group. We take a look back at the evolution of FCPA enforcement over the past 10 years. Some of the highlights include: Volkov looks all the way back to the Father of the FCPA, Judge Stanley Sporkin to see the beginnings of cooperation credit under the current FCPA Corporate Enforcement Policy. Why was the Parker Drilling enforcement action a seminal moment in FCPA enforcement? Why the 2012 version of the FCPA Resource Guide was such an important step forward in FCPA compliance. Why the 2020 FCPA Resource Guide, 2nd edition was so welcomed. The continued evolution of the DOJ on both FCPA enforcement and best practices compliance. From reading the tea leaves to the 2020 Update to the Evaluation of Corporate Compliance Programs. The Lineup I hope you will listen in to each episode over this week. The lineup will be: Tuesday, August 25- Episode 496-Matt Kelly in changes he has observed in compliance from the business journalist perspective. Wednesday 26, August Episode 497-Jonathan Armstrong in changes in data protection/data privacy compliance. Thursday August 27-, August Episode 498-Jay Rosen in changes in compliance from the business development perspective. Friday August 28-, August Episode 499-Joanthan Marks on changes compliance mirroring those from internal audit. Monday, August Episode 500-Tom Fox and the Anniversary Episode. Learn more about your ad choices. Visit megaphone.fm/adchoices
What are metrics for a Board of Directors around compliance? Former Assistant Attorney General Leslie Caldwell laid out some that the Department of Justice (DOJ) would consider in a review of compliance programs. These metrics are: Does the institution ensure that its directors and senior managers provide strong, explicit and visible support for its corporate compliance policies? Does the Board maintain a material role in overseeing a company’s overall compliance framework? These requirements move beyond simply having the correct tone at the top, which every Board should articulate. The 2020 Update to the Evaluation of Corporate Compliance Programs added the following, under Oversight by posing the following questions: What compliance expertise has been available on the board of directors? Have the board of directors and/or external auditors held executive or private sessions with the compliance and control functions? What types of information have the board of directors and senior management examined in their exercise of oversight in the area in which the misconduct occurred? Based on the foregoing, when determining the Board’s role, begin with two questions. First, does the Board of Directors exercise independent review of a company’s compliance program? Second, is the Board of Directors provided information sufficient to enable the exercise of independent judgment? Three key takeaways: The DOJ expects active engagement by a Board around compliance. Does the Board exercise independent review of the compliance program? The convergence of the Yates Memo, Caldwell’s metrics, the Evaluation and FCPA Corporate Enforcement Policy mandate Board metrics around compliance.
Every Board of Directors need a true compliance expert sitting at the table. Almost every Board has a former CFO, former head of Internal Audit or persons with a similar background and often times these are also the Audit Committee members of the Board. Such a background brings a level of sophistication, training and SME that can help all companies with their financial reporting and other finance-based issues. So why is there not such compliance SME at the Board level? This requirement was set out in 2017 in the FCPA Corporate Enforcement Policy, where one of the criteria to be evaluated in compliance program is “the availability of compliance expertise to the board;”. Finally, in the 2020 Update to the Evaluation of Corporate Compliance Programs, under the section entitled Oversight, it posed the following questions What compliance expertise has been available on the board of directors? The DOJ and Securities and Exchange Commission brought this concept forward into the FCPA Resource Guide, 2ndedition. This means that when your company is evaluated by the DOJ, under the factors set out in the 2020 Update and the FCPA Corporate Enforcement Policy, to retrospectively determine if your company had a best practices compliance program in place at the time of any violation, you need to have not only the structure of the Board-level Compliance Committee but also the specific SME on the Board and on that committee. Three key takeaways: Boards must have compliance expertise. Government regulators and shareholder groups have both called for greater compliance expertise at the Board. Compliance expertise at the Board works up and down as such expertise can be a resource to both the CCO and Compliance Department. This month's sponsor is Affiliated Monitors, Inc.
Under the U.S. Sentencing Guidelines, the Board must exercise reasonable oversight on the effectiveness of a company’s compliance program. The DOJ Prosecution Standards posed the following queries: 1) Do the directors exercise independent review of a company’s compliance program? and 2) Are directors provided information sufficient to enable the exercise of independent judgment? Moreover, the FCPA Resource Guide, 2nd edition required a CCO to have direct access to the Board or an appropriate sub-committee and requires a tangible commitment from the top levels of an organization, starting with the Board of Directors, that the company creates an ethical culture. This requirement was brought forward in 2017 in the FCPA Corporate Enforcement Policy. Finally, nn the 2020 Update to the Evaluation of Corporate Compliance Programs, under the section entitled Oversight, it posed the following questions What compliance expertise has been available on the board of directors? Have the board of directors and/or external auditors held executive or private sessions with the compliance and control functions? Today’s regulatory climate and hyper-transparency in social media make a Board Compliance Committee’s task seem Herculean. But more than simply the regulatory climate, shareholders are taking a much more active role in asserting their rights against Boards of Directors. It is incumbent that Boards seek out and obtain sufficient information to fulfill their legal obligations and keep their company off the front page of the New York Times, Wall Street Journal or Financial Times, just to name a few, to prevent serious reputational damage. A Board Compliance Committee is a good place to start. Three key takeaways: The Board Compliance Committee exists to provide oversight and assist the CCO, not to substitute its judgment for that of the CCO. The Board Compliance Committee should work to hold the CCO accountable to hit appropriate metrics. The Board Compliance Committee is ideal for leading the efforts around strategic planning. This month's sponsor is Affiliated Monitors, Inc.
The DOJ/SEC drop the 2nd edition to the FCPA Resource Guide at 5 PM on July 2. As Tom and Jay brave the surge in covid cases to stay safe they are back to look at top compliance articles and stories which caught their eye this week. FCPA Resource Guide, 2nd edition released. Tom takes a deep dive in a 5-part blog post series on the FCPA Complinace and Ethics Blog. Part 1-The New Hallmark, Part 2-FCPA Corporate Enforcement Policy, Part 3- the Accounting Provisions, Part 4- Policy and Case Law Updates, Part 5-What does it all mean? Jonathan Marks on Borad and Fraud. Tom and Matt Kelly in Compliance into the Weeds. After its FCPA settlement, Novatris pays another $678MM for corruption inside the US. Mike Volkov in Corruption Crime and Compliance. A plan to restore trust in South Africa ABC enforcement. Larry Kirsch guest posts in GAB. A reassessment of due diligence in China? Jenny Liang opines in the FCPA Blog. Venezuela can’t get its gold out of England. Jon Rausch in Dipping Through Geometries. Amazon settles OFAC sanctions enforcement action. Mengqui Sun in the WSJ Risk and Compliance Journal. How can you make a risk management committee effective? Jim DeLoach shows the way in CCI. Is Deutsche Bank the world’s most corrupt? Matt Kelly digs in on Radical Compliance. Going from disaster recovery to business continuity? Carrie Penman in Ethics and Compliance Matters. On Compliance and Coronavirus, I was joined this week by Paul Mueller on how to reset, restart and accelerate your business in the era of Coronavirus; Ian Denis on employment and communication during Covid-19 and Breeda Miller on caregiving in the era of Covid-19. On the Compliance Podcast Network, Tom started the topic of 3rd party risk management this month.This week saw the following offerings: Monday-Questionniare; Tuesday-Due Diligence,Wednesday-levels of DD; Thursday-evaluating DD and clearing red flags; and Friday-compliance terms and conditions. The month of July is being sponsored by Affiliated Monitors. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel. If you want to binge out and listen to only these episodes, click here. Great Upcoming Webinars: Navigating the Risks of Prescribing Opioids for Chronic Pain in the COVID-19 Era, Jul 22, 2020 12:00 PM in Eastern Time (US and Canada); with Jesse Caplan, Deb Waugh and Amy Fogelman, M.D. Registration and Inforamtion here. Computer Say ‘No’: Mitigating Legal & Ethical Risks in Public Agency Use of Automated Decision-Making Tools, Jul 28, 2020 12:00 PM in Eastern Time (US and Canada); with David Shonka, Mikhail Reider-Gordon and Jonathan Redgrave. Registration and Information here. ECI's Best Practice Forum, a Q&A Session with Brian Rabbitt, Acting Assistant Attorney General for the Criminal Division on the FCPA Resource Guide, 2nd edition, Thursday, July 30 2:00 - 4:00 p.m. EDT. Registration and Information here. Tom Fox is the Compliance Evangelist and can be reached at tfox@tfoxlaw.com. Jay Rosen is Mr. Monitor and can be reached at jrosen@affiliatedmonitors.com. Learn more about your ad choices. Visit megaphone.fm/adchoices
Must an investigator warn an employee that concealing information from company lawyers conducting an internal FCPA investigation could be a federal crime? Even if the company attorneys provided the now standard corporate attorney Upjohn warning? Does a company attorney asking questions morph into a de facto federal agent during an internal company investigation regarding alleged FCPA violations and is the attorney thereby required to provide a Mirandawarning to employees during said investigation? Employees who are subject to being interviewed or otherwise required to cooperate in an internal investigation may find themselves on the sharp horns of a dilemma requiring either (1) cooperating with the internal investigation or (2) losing their jobs for failure to cooperate by providing documents, testimony or other evidence. Many U.S. businesses mandate full employee cooperation with internal investigations or those handled by outside counsel on behalf of a corporation. These requirements can exert a coercive force, “often inducing employees to act contrary to their personal legal interests in favor of candidly disclosing wrongdoing to corporate counsel.” Moreover, such a corporate policy may permit a company to claim to the government a spirit of cooperation in the hopes of avoiding prosecution in addition to increasing the chances of earning meaningful credit under the U.S. Sentencing Guidelines or the FCPA Corporate Enforcement Policy. Three key takeaways: Make sure you provide an Upjohn warning. If an employee demands counsel to represent them during an internal investigation, who bears the cost? Always check state law requirements around internal investigations.
What are some of the top challenges you may well face during an investigation? Beyond the basics, a company must consider the intake process as a starting point, which Jonathan Marks noted is one of the biggest challenges. Rather surprisingly, he noted there are still companies without a hotline or anonymous reporting system, stating “we still see organizations whereby there is no formal ethics hotline except for the fact that they might send an email to some member of management or some member of the Board.” Planning your investigation, having the right team members involved and meeting the challenges which inevitably arise during an investigation can be difficult. However, beginning with the DOJ’s 2015 Yates Memo, the 2016 FCPA Pilot Program, and the 2017 and 2019 versions Evaluation of Corporate Compliance Programs, together with the 2020 Update and FCPA Corporate Enforcement Policy, the pressure on every CCO and company to get an investigation done quickly, efficiently and, most importantly, right is even greater now. Marks has laid out a concrete way for you to think through how to plan an investigation, staff it properly and meet the inevitable challenges. Three key takeaways: The intake process may seem the most straight-forward but many companies drop the ball at this initial step. You must never retaliate against employees who come forward in good faith. Always think several steps ahead.
Beginning with the 2015 Yates Memo, 2016 FCPA Pilot Program, 2017 and 2019 Evaluations of Corporate Compliance Programs, with 2020 Update through to the FCPA Corporate Enforcement Policy; the DOJ has put even more pressure on every CCO, compliance practitioner and indeed company, to get an investigation done quickly, efficiently and, most importantly, right. This is even more true after the U.S. Supreme Court’s decisions in Digital Realty Trust v. Somers, which limited whistleblower protection and benefits to only those whistleblowers who go to the SEC, rather than initially report internally. What do all these documents tell who should be on your investigation team? As with a decision on bringing in outside counsel to perform a compliance investigation, you will need to consider whether a forensic accountant should be retained as an outside consultant or hired as an employee. One critical reason to bring in an outside professional is so they will be not be governed by management or influenced by potential biases within a company. Lastly is the issue of privilege. If a forensic accountant is not assigned through your legal department or through outside counsel, you can kiss away even the chance of claiming privilege. Obviously, the GC would be involved to help protect the attorney client privilege if for no other reason. Further, an investigation needs to have compliance involved, to understand what compliance program was in place at the time of the incident in question, what procedures compliance had and understand if this truly was a gap in the compliance function or maybe there was an area within the compliance function that was not operating as prescribed, or maybe it was a little bit weak. Three key takeaways: HR plays a key but often underused role in internal investigations. The Board of Directors and senior management have different roles. Use your legal department to protect the privilege.
The written standard requirements have long been memorialized in the U.S. Sentencing Guidelines, which contain seven basic compliance elements that can be tailored to fit the needs and financial realities of any given organization. From these seven compliance elements, the DOJ has crafted its minimum best practices compliance program, which is now attached to every DPA and NPA issued. These requirements were incorporated into the 2012 FCPA Guidance and brought forward in the 2019 Guidance and FCPA Corporate Enforcement Policy. The U.S. Sentencing Guidelines assumes that every effective compliance and ethics program begins with a written standard of conduct; i.e., a Code of Conduct. Following your Code of Conduct is written policies and procedures required for a best practices compliance program are well- known and long established. The role of compliance policies is to provide guidance and to protect companies, despite an occasional hick-up. Policies provide a basic set of guidelines for employees to follow. They can include general do’s and don’ts, work process flows, specific issue guidelines. By establishing what is and is not acceptable compliance behavior, a company can mitigate the compliance risks posed by employees who might make foolish decisions or otherwise engage in unethical behavior. There are numerous reasons to put some serious work into your Code of Conduct, policies and procedures. They are certainly a first line of defense when the government comes knocking. This means the regulators will take a strong view against a company that does not have well thought out and articulated policies, procedures or Code of Conduct; all of which are systematically reviewed and updated. Written policies, signed by employees provide a vital layer of communication. Together with a signed acknowledgement, these documents can serve as evidentiary support if a future issue arises. In other words, the “Document, Document, Document” mantra applies just as strongly to this area of anti-corruption compliance. Three key takeaways: A Code of Conduct, together with policies and procedures, have long been recognized as cornerstones of a best practices compliance policy. Each level of written standards builds upon one another, so consider this integration step. The Fair Process Doctrine applies to your written standards.
The cornerstone of any best practices compliance program is written protocols. This includes a Code of Conduct, policies and procedures. These elements have long been memorialized in the US Sentencing Guidelines; the Department Of Justice’s (DOJs) Opinion Releases regarding compliance programs, the 2012 FCPA Guidance, both DOJ and Securities and Exchange Commission (SEC) enforcement actions, the 2019 Guidance and FCPA Corporate Enforcement Policy. There are three levels of standards and controls, Code of Conduct standards and policies and procedures. Every company should have a Code of Conduct that expresses its ethical principles. But a Code of Conduct is not enough. The Code of Conduct is implemented through your compliance policies. It is further operationalized through your compliance procedures. The DOJ spoke to their importance in the 2019 Guidance when it stated, “As a threshold matter, prosecutors should examine whether the company has a code of conduct that sets forth, among other things, the company’s commitment to full compliance with relevant Federal laws that is accessible and applicable to all company employees.” As a corollary, prosecutors should also assess whether the company has established policies and procedures that incorporate the culture of compliance into its day-to-day operations. At the end of the 31 Days you will have a very detailed grounding on better written standards for your compliance program. You will be able to utilize the information presented to implement a more effective compliance program for your organization. Three key takeaways: The cornerstone of any best practices compliance program is its written protocols. Written standards work to prevent, detect and remediate. What are the specific written protocols you should have in your compliance program?
In the Episode, I visit with James Koukios, partner at Morrison & Foerster, Editor-in-Chief of the firm’s Top 10 International Anti-Corruption Developments. We visit about the firm’s Top 10 International Anti-Corruption Developments for November 2019. Some of the highlights include: The Lambert guilty verdict. Can you have a guilty verdict for conspiracy without a conviction of the underlying offense? Revision to FCPA Corporate Enforcement Policy. What changed? Former CEO of Brazilian Chemical Company Indicted for FCPA and Money Laundering Offenses. Is this an outlier or will it become more prevalent? SEC Whistleblower numbers. What if anything do these numbers mean for Chairman Clayton’s attempts to cut back on the size of whistleblower awards? Miami Investment Firm Executive Pleads Guilty in $1.2 Billion Venezuelan Money Laundering Scheme. Resources To a copy of the Top 10 International Anti-Corruption Developments for November 2019 Newsletter click here. Learn more about your ad choices. Visit megaphone.fm/adchoices
We previously considered the Prong in the Evaluation that was not present in the Ten Hallmarks of an Effective Compliance Program; that being root cause analysis. The requirement was first raised in the 2017 Evaluation. It was then carried forward as a requirement in the FCPA Corporate Enforcement Policy, later in 2017. It was discussed again in the 2019 Guidance. You should begin with the question of who should perform the remediation; should it be an investigator or an investigative team which were a part of the root cause analysis? Jonathan Marks, believes the key is both “independence and objectivity.” It may be that an investigator or investigative team is a subject matter expert and “therefore more qualified to get that particular recourse”. Yet to perform the remediation, the key is to integrate the information developed from the root cause analysis into the solution. Marks further noted that the company may also have deficiencies in internal controls. More importantly, the failure to remediate gaps in internal controls “provides the opportunity for additional errors or misconduct to occur, and thus could damage the company’s credibility with regulators” by allowing the same or similar conduct to reoccur. Finally, with both the 2019 Guidance and FCPA Corporate Enforcement Policy, the DOJ has added its voice to prior SEC statements that regulators “will focus on what steps the company took upon learning of the misconduct, whether the company immediately stopped the misconduct, and what new and more effective internal controls or procedures the company has adopted or plans to adopt to prevent a recurrence.” Three key takeaways: The key is objectivity and independence. The critical element is how did you use the information you developed in the root cause analysis? The key is that after you have identified the causes of problems, consider the solutions that can be implemented by developing a logical approach, using data that already exists in the organization. Learn more about your ad choices. Visit megaphone.fm/adchoices
We previously considered the Prong in the Evaluation that was not present in the Ten Hallmarks of an Effective Compliance Program; that being root cause analysis. The requirement was first raised in the 2017 Evaluation. It was then carried forward as a requirement in the FCPA Corporate Enforcement Policy, later in 2017. It was discussed again in the 2019 Guidance. You should begin with the question of who should perform the remediation; should it be an investigator or an investigative team which were a part of the root cause analysis? Jonathan Marks, believes the key is both “independence and objectivity.” It may be that an investigator or investigative team is a subject matter expert and “therefore more qualified to get that particular recourse”. Yet to perform the remediation, the key is to integrate the information developed from the root cause analysis into the solution. Marks further noted that the company may also have deficiencies in internal controls. More importantly, the failure to remediate gaps in internal controls “provides the opportunity for additional errors or misconduct to occur, and thus could damage the company’s credibility with regulators” by allowing the same or similar conduct to reoccur. Finally, with both the 2019 Guidance and FCPA Corporate Enforcement Policy, the DOJ has added its voice to prior SEC statements that regulators “will focus on what steps the company took upon learning of the misconduct, whether the company immediately stopped the misconduct, and what new and more effective internal controls or procedures the company has adopted or plans to adopt to prevent a recurrence. Three key takeaways: The key is objectivity and independence. The critical element is how did you use the information you developed in the root cause analysis? The key is that after you have identified the causes of problems, consider the solutions that can be implemented by developing a logical approach, using data that already exists in the organization.
Your company has just made its largest acquisition ever and your CEO says they want you to have a compliance post-acquisition integration plan on their desk in one week. Where do you begin? A good place to start would be the 2012 FCPA Guidance language: Pre-acquisition due diligence, however, is normally only a portion of the compliance process for mergers and acquisitions. DOJ and SEC evaluate whether the acquiring company promptly incorporated the acquired company into all of its internal controls, including its compliance program. Companies should consider training new employees, reevaluating third parties under company standards, and, where appropriate, conducting audits on new business units. As reported by New and Trahanas, in a July 2018 speech, former Deputy Assistant Attorney General Matthew Miner emphasized that DOJ would apply the principles contained in the FCPA Corporate Enforcement Policy to successor companies that discover potential violations subsequent to an acquisition, as well as to acquirers who detect potential corrupt activities during the due diligence process. He also encouraged acquiring companies to seek guidance through the FCPA Opinion Procedures. Miner said the DOJ would apply the principles contained in the FCPA Corporate Enforcement Policy to acquiring companies that uncover potential FCPA violations in the mergers and acquisitions context. This means if you meet the four requirements under the FCPA Corporate Enforcement Policy, the default DOJ position would be a declination would be granted Three key takeaways: Planning is critical in the post-acquisition phase. Build upon what you learned in pre-acquisition due diligence. You literally need to be ready to hit the ground running when a transaction closes.
Your company has just made its largest acquisition ever and your CEO says they want you to have a compliance post-acquisition integration plan on their desk in one week. Where do you begin? A good place to start would be the 2012 FCPA Guidance language: Pre-acquisition due diligence, however, is normally only a portion of the compliance process for mergers and acquisitions. DOJ and SEC evaluate whether the acquiring company promptly incorporated the acquired company into all of its internal controls, including its compliance program. Companies should consider training new employees, reevaluating third parties under company standards, and, where appropriate, conducting audits on new business units. As reported by New and Trahanas, in a July 2018 speech, former Deputy Assistant Attorney General Matthew Miner emphasized that DOJ would apply the principles contained in the FCPA Corporate Enforcement Policy to successor companies that discover potential violations subsequent to an acquisition, as well as to acquirers who detect potential corrupt activities during the due diligence process. He also encouraged acquiring companies to seek guidance through the FCPA Opinion Procedures. Miner said the DOJ would apply the principles contained in the FCPA Corporate Enforcement Policy to acquiring companies that uncover potential FCPA violations in the mergers and acquisitions context. This means if you meet the four requirements under the FCPA Corporate Enforcement Policy, the default DOJ position would be a declination would be granted. Three key takeaways: Planning is critical in the post-acquisition phase. Build upon what you learned in pre-acquisition due diligence. You literally need to be ready to hit the ground running when a transaction closes. Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the compliance professional and the compliance function in a corporation has steadily grown in stature and prestige over the years. When it came to the corporate compliance function, 2012 FCPA Guidance, under Hallmark Three of the Ten Hallmarks of an Effective Compliance Program, simply noted the government would “consider whether the company devoted adequate staffing and resources to the compliance program given the size, structure, and risk profile of the business.” This Hallmark was significantly expanded in both the 2019 Guidance and the FCPA Corporate Enforcement Policy. And in so doing, the DOJ has increased the prestige, authority and role of both the corporate compliance function. The 2019 Guidance has four general areas of inquiry around the corporate compliance function. (1) What is the seniority and stature of the compliance function within an organization? (2) What are the experience and stature of the compliance personnel with an organization? (3) What is the funding and resources made available to the compliance function? (4) How much autonomy does the compliance function have to report to the Board of Directors? Three key takeaways: How is compliance treated in the budget process? Has your compliance function had any decisions over-ridden by senior management? Beware outsourcing of compliance as any such contractor must have access to company documents and personnel.
The role of the compliance professional and the compliance function in a corporation has steadily grown in stature and prestige over the years. When it came to the corporate compliance function, 2012 FCPA Guidance, under Hallmark Three of the Ten Hallmarks of an Effective Compliance Program, simply noted the government would “consider whether the company devoted adequate staffing and resources to the compliance program given the size, structure, and risk profile of the business.” This Hallmark was significantly expanded in both the 2019 Guidance and the FCPA Corporate Enforcement Policy. And in so doing, the DOJ has increased the prestige, authority and role of both the corporate compliance function. The 2019 Guidance has four general areas of inquiry around the corporate compliance function. (1) What is the seniority and stature of the compliance function within an organization? (2) What are the experience and stature of the compliance personnel with an organization? (3) What is the funding and resources made available to the compliance function? (4) How much autonomy does the compliance function have to report to the Board of Directors? Three key takeaways: How is compliance treated in the budget process? Has your compliance function had any decisions over-ridden by senior management? Beware outsourcing of compliance as any such contractor must have access to company documents and personnel. Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the CCO has steadily grown in stature and prestige over the years. In the 2012 FCPA Guidance, under Hallmark Three of the Ten Hallmarks of an Effective Compliance Program, it focused on the whether the CCO held senior management status and had a direct reporting line to the Board; stating: In appraising a compliance program, DOJ and SEC also consider whether a company has assigned responsibility for the oversight and implementation of a company’s compliance program to one or more specific senior executives within an organization. Those individuals must have appropriate authority within the organization, adequate autonomy from management, and sufficient resources to ensure that the company’s compliance program is implemented effectively. Adequate autonomy generally includes direct access to an organization’s governing authority, such as the board of directors and committees of the board of directors. This Hallmark was significantly expanded in both the 2019 Guidance and the FCPA Corporate Enforcement Policy. And in so doing, the DOJ has increased the prestige, authority and role of both the CCO and corporate compliance function. The 2019 Guidance has four general areas of inquiry around the CCO and corporate compliance function. (1) How does the CCO salary and stature within the organization compare to other senior executives within the company. (2) What are the experience and stature of the CCO with an organization? Does the CCO have appropriate training for the role? (3) How much autonomy does the CCO have to report to the Board of Directors? How often do the CCO meet with directors? Are members of the senior management present for these meetings with the Board of Directors or of the Audit Committee? (4) Is the compliance function run by a designated chief compliance officer, or another executive within the company, and does that person have other roles within the company? Three key takeaways: How can you show the CCO really has a seat at the senior executive table? What are the professional qualifications of your CCO? Does your CCO have true independence to report directly to the Board of Directors?
The role of the CCO has steadily grown in stature and prestige over the years. In the 2012 FCPA Guidance, under Hallmark Three of the Ten Hallmarks of an Effective Compliance Program, it focused on the whether the CCO held senior management status and had a direct reporting line to the Board; stating: In appraising a compliance program, DOJ and SEC also consider whether a company has assigned responsibility for the oversight and implementation of a company’s compliance program to one or more specific senior executives within an organization. Those individuals must have appropriate authority within the organization, adequate autonomy from management, and sufficient resources to ensure that the company’s compliance program is implemented effectively. Adequate autonomy generally includes direct access to an organization’s governing authority, such as the board of directors and committees of the board of directors. This Hallmark was significantly expanded in both the 2019 Guidance and the FCPA Corporate Enforcement Policy. And in so doing, the DOJ has increased the prestige, authority and role of both the CCO and corporate compliance function. The 2019 Guidance has four general areas of inquiry around the CCO and corporate compliance function. (1) How does the CCO salary and stature within the organization compare to other senior executives within the company. (2) What are the experience and stature of the CCO with an organization? Does the CCO have appropriate training for the role? (3) How much autonomy does the CCO have to report to the Board of Directors? How often do the CCO meet with directors? Are members of the senior management present for these meetings with the Board of Directors or of the Audit Committee? (4) Is the compliance function run by a designated chief compliance officer, or another executive within the company, and does that person have other roles within the company? Learn more about your ad choices. Visit megaphone.fm/adchoices
One cannot really say enough about risk assessments in the context of anti-corruption programs. This is because every corporate compliance program should be based upon a risk assessment, to understand your organization’s business from the commercial perspective, how your organization has identified, assessed, and defined its risk profile and, finally, the degree to which the program devotes appropriate scrutiny and resources to this range of risks. As far back as 1999, in the Metcalf & Eddy enforcement action, the DOJ has said that risk assessments that measure the likelihood and severity of possible FCPA violations should direct your resources to manage these risks. The 2012 FCPA Guidance stated it succinctly when it said, “Assessment of risk is fundamental to developing a strong compliance program and is another factor DOJ and SEC evaluate when assessing a company’s compliance program.” This language was supplemented in the 2017 FCPA Corporate Enforcement Policy, which stated, “The effectiveness of the company’s risk assessment and the manner in which the company’s compliance program has been tailored based on that risk assessment.” A risk assessment determines the areas at greatest risk for FCPA violations among all types of international business transactions and operations, the business culture of each country in which these activities occur, and the integrity and reputation of third parties engaged on behalf of the company. The reason is straightforward; one cannot define, plan for, or design an effective compliance program to prevent bribery and corruption unless you can measure the risks you face. Three key takeaways: Since at least 1999, the DOJ has pointed to the risk assessment as the start of an effective compliance program. The DOJ will now consider both your risk assessment methodology for identifying risks and gathered evidence. You should base your compliance program on your risk assessment.
One cannot really say enough about risk assessments in the context of anti-corruption programs. This is because every corporate compliance program should be based upon a risk assessment, to understand your organization’s business from the commercial perspective, how your organization has identified, assessed, and defined its risk profile and, finally, the degree to which the program devotes appropriate scrutiny and resources to this range of risks. As far back as 1999, in the Metcalf & Eddy enforcement action, the DOJ has said that risk assessments that measure the likelihood and severity of possible FCPA violations should direct your resources to manage these risks. The 2012 FCPA Guidance stated it succinctly when it said, “Assessment of risk is fundamental to developing a strong compliance program and is another factor DOJ and SEC evaluate when assessing a company’s compliance program.” This language was supplemented in the 2017 FCPA Corporate Enforcement Policy, which stated, “The effectiveness of the company’s risk assessment and the manner in which the company’s compliance program has been tailored based on that risk assessment.” A risk assessment determines the areas at greatest risk for FCPA violations among all types of international business transactions and operations, the business culture of each country in which these activities occur, and the integrity and reputation of third parties engaged on behalf of the company. The reason is straightforward; one cannot define, plan for, or design an effective compliance program to prevent bribery and corruption unless you can measure the risks you face. Three key takeaways: Since at least 1999, the DOJ has pointed to the risk assessment as the start of an effective compliance program. The DOJ will now consider both your risk assessment methodology for identifying risks and gathered evidence. You should base your compliance program on your risk assessment. Learn more about your ad choices. Visit megaphone.fm/adchoices
The lads mourn the passing of DC (Dorothy Catherine) Fontana this week. She was one of the earliest driving forces behind Star Trek and a great screenwriter. Jay mourns the Texans first in over his Patriots in the 21st Century and they then turn to some other of this week’s top compliance and ethics stories which caught their collective eyes. 1. Bribery and Corruption on trial. Boustani admits paying bribes but found not guilty. How did that happen? Rick Messick explains. Conversely, 6 FCPA defendants have been found guilty this year. Dick Cassin reports. 2. DOJ tweaks FCPA Corporate Enforcement Policy. Mike Volkov reviews. Davis Polk lawyers weigh in. 3. Assistant Attorney General Brian A. Benczkowski Delivers Remarks at the ACI Conference on the FCPA. 4. The most idiotic FCPA article ever. 5. Jay reminices on the founding of AMI and the creation of the independent integrity monitor. 6. What are ethical downsides to AI in FinTech and RegTech? Kristin Broughton explores. 7. Don’t encourage employees to speak up if you are not ready to listen. Bob Conlin explains why. 8. Fallout continues from massive money-laundering scheme ‘down under’. Jonathan Rausch. 9. A framework to think about ESG, corporate purpose and governace. Frank Glassner. 10. Ten things to do in preparation for CCPA. Lori Tripoli reports. 11. On the Compliance Podcast Network, Tom interview AMI MD, Mikhail Gordon for a sponsored podcast series on Aspects of Monitorships. In Part 1, why independence is so critical; in Part 2, the ABA on Monitors; in Part 3, How international teaching informs compliance; in Part 4 cultural differences in int’l and domestic monitorships and in Part 5, the evolution of monitorships. 12. Reflections on DC Fontana. Tom Fox is the Compliance Evangelist and can be reached at tfox@tfoxlaw.com. Jay Rosen is Mr. Monitor and can be reached at jrosen@affiliatedmonitors.com. For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com. Learn more about your ad choices. Visit megaphone.fm/adchoices
Welcome to the only roundtable podcast in compliance. Today, we have a quartet of Jay Rosen, Matt Kelly, Sarah Hadden and Mike Volkov. We focus on the President Trump’s putative initiative to purchase the country of Greenland. We consider the proposed purchase from the compliance perspective. Rants and shouts outs follow the commentary for this episode. Mike Volkov considers the proposed purchase through the lens of Mergers and Acquisitions under the FCPA. He also highlights the 2018 amendment to the FCPA Corporate Enforcement Policy on safe harbor in M&A under the FCPA. Volkov is not sure if he is shouting out to the Business Roundtable for their Statement on the Purpose of a Corporation or ranting about the Business Roundtable’s ‘profound grasp of the obvious” in releasing the Statement.Jay Rosen follows up on Mike’s FCPA analysis in considering how someone might look at the sale in assessing the culture of Greenland and how it would fit into the acquirer’s portfolio of purchased territories. Rosen shouts out for America to ‘get Spicy’ as former White House Press Secretary (when there was such a position) Sean Spicer joins Dancing with the Stars.Sarah Hadden considers how a journalist might cover the proposed purchase. She also weighs in as the Publisher of Corporate Compliance Insights on the types of compliance related stories she sees from the proposed purchase. Hadden shouts out for unplugging.Matt Kelly considers the proposed purchase from the internal controls and SEC reporting perspective. Kelly comes in hot to blast the Business Roundtable over its Statement on the Purpose of a Corporation.The members of the Everything Compliance are:Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.comMike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.comJonathan Armstrong–is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.comSarah Hadden–Publisher at Corporate Compliance Insights. Hadden can be reached at Sarah@corporatecomplianceinsights.comThe host and producer (and sometime panelist) of Everything Compliance is Tom Fox the Compliance Evangelist. Everything Compliance is a part of the Compliance Podcast Network. Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode I visit with podcast favorite Morrison and Foerster partner James Koukios on the firm’s Top 10 International Anti-Corruption Developments for March 2019. We look at some of the key international developments. Highlights from the podcast include: The MTS FCPA Settlement.Changes in FCPA Corporate Enforcement Policy-what is ‘De-Confliction’ and ephemeral messaging.OECD Working Group on Bribery Reports on the UK’s Foreign Bribery Enforcement Record.CFTC announces entry into FCPA enforcement.India appoints first anticorruption ombudsman.To see a copy of the Morrison and Foerster Top 10 International Anti-Corruption Developments for March 2019, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode I visit with Mark Lanpher, a partner at Shearman & Sterling LLP, practicing in the firm’s White Collar and Regulatory Enforcement group. Lanpher is a former Assistant Chief Litigation Counsel at the SEC. We take a deep dive into the July 2018 change in FCPA Enforcement Policy, announced by the Justice Department creating a safe harbor in mergers and acquisition enforcement actions brought under the FCPA. Some of the highlights from the podcast include: 1. How did Matthew Miner’s announcement impact the FCPA Corporate Enforcement Policy re: M&A?2. What were the policy reasons behind the announcement? 3. Was Miner’s announcement a codification of DOJ/SEC safe harbor policy first articulated in the 2012 FCPA Guidance?4. How did (or not) Miner’s announcement bring certainty to this area?5. What does it mean going forward? Learn more about your ad choices. Visit megaphone.fm/adchoices
Welcome to the only roundtable podcast in compliance. Today, in Episode 45 we celebrate our newest addition to the Everything Compliance gang; Sarah Hadden. Sarah is the Publisher at Corporate Compliance Insights, taking the helm from founder Maurice Gilbert earlier this year. She is a journalist by profession and has been working in the compliance space, largely at CCI for the past six years. She brings a wealth of talent, knowledge and perspective to our happy band of commentators and help us to 'drink the Kool-Aid. Sarah Hadden discusses experiential learning. She uses that as a basis to consider what is effective training and how interactive training can lead to a new level of not simply effectiveness but awareness to recency bias which can cloud decision making. Sarah shouts out to internet service providers everywhere who were able to make the Mueller report available as soon as it was released.Matt Kelly discusses best practices around disclosing reporting data and using interactive technologies to improve Codes of Conduct, compliance policies and procedures. Matt rants on former White House Ethics Counsel, Stefan Passantino who urged Mazars USA not to comply with a subpoena that House Oversight Committee issued for Trump’s financial documents. That is ethics for you in TrumpWorld.Jay Rosen talks about repositioning compliance as a business generator. He discusses companies which see compliance as a business advantage and details how they do so. Jay shouts out to former White House counsel Don McGahn for being a “real lawyer” because he takes notes.Tom Fox, sitting in on this episode, uses the top three FCPA settlements of 2019 (MTS, Cognizant and Fresenius) to illustrate how the FCPA Corporate Enforcement Policy, announced in 2017 is being used in practice. He compares the three different types of resolutions used by the Justice Department and what it might mean for compliance going forward. Tom rants about Charles Van Doren and the quiz show scandals from the late 1950s.The members of the Everything Compliance panelist are:Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.comMike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.comJonathan Armstrong–is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.comSarah Hadden– the newest addition to our panel. Sarah is the Publisher at Corporate Compliance Insights. Hadden can be reached at Sarah@corporatecomplianceinsights.com Learn more about your ad choices. Visit megaphone.fm/adchoices
Welcome to the only roundtable podcast in compliance. Today, in Episode 45 we celebrate our newest addition to the Everything Compliance gang; Sarah Hadden. Sarah is the Publisher at Corporate Compliance Insights, taking the helm from founder Maurice Gilbert earlier this year. She is a journalist by profession and has been working in the compliance space, largely at CCI for the past six years. She brings a wealth of talent, knowledge and perspective to our happy band of commentators and help us to 'drink the Kool-Aid. Sarah Hadden discusses experiential learning. She uses that as a basis to consider what is effective training and how interactive training can lead to a new level of not simply effectiveness but awareness to recency bias which can cloud decision making. Sarah shouts out to internet service providers everywhere who were able to make the Mueller report available as soon as it was released.Matt Kelly discusses best practices around disclosing reporting data and using interactive technologies to improve Codes of Conduct, compliance policies and procedures. Matt rants on former White House Ethics Counsel, Stefan Passantino who urged Mazars USA not to comply with a subpoena that House Oversight Committee issued for Trump’s financial documents. That is ethics for you in TrumpWorld.Jay Rosen talks about repositioning compliance as a business generator. He discusses companies which see compliance as a business advantage and details how they do so. Jay shouts out to former White House counsel Don McGahn for being a “real lawyer” because he takes notes.Tom Fox, sitting in on this episode, uses the top three FCPA settlements of 2019 (MTS, Cognizant and Fresenius) to illustrate how the FCPA Corporate Enforcement Policy, announced in 2017 is being used in practice. He compares the three different types of resolutions used by the Justice Department and what it might mean for compliance going forward. Tom rants about Charles Van Doren and the quiz show scandals from the late 1950s.The members of the Everything Compliance panelist are:Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.comMike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.comJonathan Armstrong–is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.comSarah Hadden– the newest addition to our panel. Sarah is the Publisher at Corporate Compliance Insights. Hadden can be reached at Sarah@corporatecomplianceinsights.com Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode I have back fan fav Mike Volkov. We break down the recently released Fresenius FCPA enforcement action. Some of the highlights from the podcast include: Ø A detailed discuss of the underlying facts.Ø What were the bribery schemes? Some old and some new but every compliance professional should study them.Ø How and why did Fresenius let the conduct go on for so long.Ø How was the company able to garner a NPA?Ø How did the company obtain its 40% discount for its fine and penalties?Ø Why was a monitor required?Ø What are the lessons learned from this enforcement action?Ø How does this case illustrate current Justice Department enforcement under the 2017 FCPA Corporate Enforcement Policy, as amended? To take a deeper dive into the Fresenius FCPA enforcement action, check out Mike Volkov’s three-part series on his blog site,Corruption, Crime and Compliance. You can also check out my three-part series on the FCPA Compliance Report. Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode, I want to discuss the opening scene where Lear bids his daughters express the breadth and scope of their love for him. Lear has called a conference to divide his kingdom between his three daughters, Goneril, Regan and Cordelia, his youngest who is clearly is favorite. Goneril professes her love is more than words alone can convey, saying “A love that makes . . . speech unable / Beyond all manner of so much I love you”. Regan professes, “Myself an enemy to all other joys, Which the most precious square of sense possesses, And find I am alone felicitate in your dear Highness’ love.” However, Cordelia refuses to play the flattering fool. Her father twice gives her the opportunity to redress this decision but she holds firm saying “Nothing, my lord”. This leads to the break in the family, the deaths of the sisters and the fullest scope of tragedy. Why do you need to engage your audience? I thought about this in the context of the Foreign Corrupt Practices Act, compliance and regime change. This is not Saddam Hussain regime change where the US government invades a country to throw out the old boss. This is a democratically elected-peaceful transfer of power. However, it now appears that regime change now means corruption investigations which impact not only the FCPA but also US companies. Every compliance officer needs to aware of this new reality. Take three recent regime changes, together with what they have meant; and perhaps one to come. 1. South Africa2. Malaysia3. Brazil4. Venezuela The bottom line is that every Chief Compliance Officer (CCO) must now watch local politics much more closely. If you are doing business in a high-risk country and there are new leaders brought in through democratically elected regime change, your company had better be ready for a robust corruption investigation. Certainly if Malaysia, South Africa and Brazil are any indication, prosecutors from nations with new regimes may well share their findings with the US Department of Justice (DOJ). This means that regime change could lead directly to a FCPA investigation, where the disclosure was by a foreign government and not the company self-disclosing. If there is no self-disclosure, a company is not eligible for the declination under the 2017 FCPA Corporate Enforcement Policy. Learn more about your ad choices. Visit megaphone.fm/adchoices
In the first corporate FCPA action of 2019, Cognizant Technology Solutions Company settled its long-running FCPA case, agreeing to pay the SEC $25 million. At the same time, the Justice Department announced: (1) its declination under the FCPA Corporate Enforcement Policy; and (2) the indictment of Cognizant's former President and General Counsel for criminal FCPA violations. In this Episode, Michael Volkov discusses the Cognizant FCPA enforcement action and the lessons learned.
As the St. Patrick’s Day weekend is past and Spring has sprung all over Tom and Jay are back to take a look at some of this week’s top compliance and ethics stories which caught their collective eyes this week. 1. What are some of the lessons for compliance professionals from the college admissions scandal? 2. How did the FCPA Corporate Enforcement Policy change for messaging apps? 3. What’s the difference between concurrent, consecutive and stacked? 4. Even the big dogs can be defrauded. Kristen Broughton reports on fraud which cost Google and Facebook over $100MM.5. Training wheels will continue to be useful in the future. 6. The business response leads to better compliance through FinTech. 7. Cyber breach disclosures are a mess. Matt Kelly reports. 8. The Editor speaks on insider threats. Compliance Week Editor Dave Lefort discusses.9. Jaclyn Jaeger looks inside the FBI Office of Integrity.10. Following up on his blog post series on the MTS FCPA settlement, Tom moves to the audio format for a podcast series on the enforcement action.Check out the following: Part 1-background;Part 2-bribery schemes; Part 3- missed red flags; Part 4-the individual indictments; and Part 5-lessons learned. 11. In Houston on Tuesday? Join Tom and Katie Smith at Convercen’s Roundtable Lunch. Registration and information are here. If you are not in Houston, then join Tom, Louis Sapirman and Katelyn Conlyn for a Convercent webinar on how to better engage with your employees. Registration and information for the webinar found here. Best of all, both events are FREE.12. Check out the latest edition of Popcorn and Compliancewhere Tom and Jay looked at Captain Marvel from the compliance perspective. 13. Join Tom and AMI’s Jesse Caplan next week for a 5-part exploration of emerging issues in healthcare compliance and monitoring. Tom Fox is the Compliance Evangelist and can be reached at tfox@tfoxlaw.com. Jay Rosen is Mr. Monitor and can be reached at jrosen@affiliatedmonitors.com. For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com. Learn more about your ad choices. Visit megaphone.fm/adchoices
In this special bonus podcast, I am joined by Mike Volkov to discuss the stunning resolution to one of the longest running bribery, corruption and money-laundering sagas on the international stage, the FCPA enforcement action against the Russian telecom company, MTS. The FCPA enforcement action came in at $850 million which makes it Number 3 in the Top 10 of all-time FCPA settlement. Some of the highlights include: · The background facts;· Similarities with VimpleCom and Telia;· Criminal Indictments of Gulnara Karimova and Bekhzod Akhmedov;· Jurisdictional issues raised;· Lessons learned for the compliance professional;· The clear delineation from Yates Memo to the FCPA Pilot Program to the 2017 FCPA Corporate Enforcement Policy to this enforcement action; and final thoughts. Resources: 1. MTS Deferred Prosecution Agreement (DPA);2. MTS Criminal Information (MTS Information);3. SEC Cease and Desist Order (Order);4. Karimova and Akhmedov Indictment (Indictment);5. Kolorit Dizayn Ink Plea Agreement (Plea Agreement); 6. Kolorit Dizayn Ink Information (Kolorit Information);7. DOJ Press Release; and 8. SEC Press Release. Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode I visit with Miller & Chevalier lawyers James Tillen and Marc Bohn on the firm’s FCPA Winter Review 2019. Miller releases a FCPA review quarterly each year and it is one of the top reports on what is going on in both FCPA enforcement and wider international anti-corruption enforcement and developments. Highlights from the podcast include: What do the overall numbers of newly opened FCPA investigations look like under the Trump Administration? What are interpretations of this amount of new cases reported?What are some of the key issues which a CCO should consider on a proactive basis given the current state of FCPA investigations and enforcement?Did the release by the DOJ of the Anti-Piling Policy, the M&A addition to the FCPA Corporate Enforcement Policy and modification to the Yates Memo change the approach a compliance program should consider?One interpretation of the Benczkowski Memo is that it lays out a road map for companies who get into FCPA hot water on how to avoid a monitor. Is that interpretation valid?Regime change overseas has more often brought investigations from the new regime into the old regime. From a corporate perspective, what should a Board, senior management or CCO-type do to prepare for democratically elected regime change?Under GDPR, have investigations in the EU/UK changed for the firm or your clients? You can check out a copy of Miller & Chevalier’s FCPA Winter Review 2019 by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices
In this episode I visit with Hughes Hubbard partner Michael DeBernardis on the Hughes Hubbard 2018FCPA & Anti-Bribery Alert. We look at some of the key DOJ pronouncements, key enforcement actions, key cases and key international developments. Highlights from the podcast include: 1. What is the Hughes Hubbard FCPA & Anti-Bribery Alert?2. The key DOJ policy pronouncements in 2018 around the FCPA Corporate Enforcement Policy, including the anti-piling on policy, M&A safe harbor and how to avoid a corporate monitor.3. A review of the key FCPA enforcement actions from 2018, including Petrobras, Credit Suisse, Panasonic Avionics and Société Générale.4. 2018 saw two rare cases at the Supreme Court impacting the FCPA--Cohen& Hoskins.What do they mean for the compliance practitioner?5. How did the final decision in the UK in the case ENRC protect internal investigations?6. What does GDPR mean for FCPA investigations and enforcement going forward. To see a copy of Hughes Hubbard 2018’s FCPA & Anti-Bribery Alert, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices
This week, in a podcast series sponsored by Affiliated Monitors, Inc. (AMI), I visit with Vincent DiCianni, founder and President of AMI, and Eric Feldman, Senior Vice President of AMI. We look at the Department of Justice (DOJ) announcements over the past year and back to the FCPA Corporate Enforcement Policy, announced in November 2017, to consider what strategies companies can use based upon these documents. Over this series we will explore what companies can do both internally and externally to incorporate the Benczkowski Memo (the “Memo”) and other DOJ guidance into their organizations, show how to use a strong compliance program as both a sword and a shield and the benefits of using a third-party to fulfill the compliance mandate. In Episode 2, I consider with DiCianni how companies can use this information internally to bolster their compliance programs. Learn more about your ad choices. Visit megaphone.fm/adchoices
This week, in a podcast series sponsored by Affiliated Monitors, Inc. (AMI), I visit with Vincent DiCianni, founder and President of AMI, and Eric Feldman, Senior Vice President of AMI. We look at the Department of Justice (DOJ) announcements over the past year and back to the FCPA Corporate Enforcement Policy, announced in November 2017, to consider what strategies companies can use based upon these documents. Over the next five podcasts we will explore what companies can do both internally and externally to incorporate the Benczkowski Memo (the “Memo”) and other DOJ guidance into their organizations, show how to use the Memo as both a sword and a shield and the benefits of using a third-party to fulfill the compliance mandate. In Episode 1, we introduce the Memo and new DOJ announcements over the past year and what they mean for the compliance practitioner. Learn more about your ad choices. Visit megaphone.fm/adchoices
This week, in a podcast series sponsored by Affiliated Monitors, Inc. (AMI), I visit with Vincent DiCianni, founder and President of AMI, and Eric Feldman, Senior Vice President of AMI. We look at the Department of Justice (DOJ) announcements over the past year and back to the FCPA Corporate Enforcement Policy, announced in November 2017, to consider what strategies companies can use based upon these documents. Over this series we have explored what companies can do both internally and externally to incorporate the Benczkowski Memo (the “Memo”) and other DOJ guidance into their organizations. In Episode 4, we discuss how the new DOJ Guidance from 2018 on Foreign Corrupt Practices Act (FCPA) compliance can be used as both a sword and a shield. Learn more about your ad choices. Visit megaphone.fm/adchoices
This week, in a podcast series sponsored by Affiliated Monitors, Inc. (AMI), I visit with Vincent DiCianni, founder and President of AMI, and Eric Feldman, Senior Vice President of AMI. We look at the Department of Justice (DOJ) announcements over the past year and back to the FCPA Corporate Enforcement Policy, announced in November 2017, to consider what strategies companies can use based upon these documents. DiCianni and I have considered how companies can use this information internally to bolster their compliance programs and today we consider this same issue from the external perspective. Learn more about your ad choices. Visit megaphone.fm/adchoices
This week, in a podcast series sponsored by Affiliated Monitors, Inc. (AMI) I have visited with Vincent DiCianni, founder and President of AMI, and Eric Feldman, Senior Vice President of AMI. We have been reviewing the Department of Justice (DOJ) announcements over the past year and back to the FCPA Corporate Enforcement Policy, announced in November 2017, to consider what strategies companies can use based upon these documents. Over the series we have explored what companies can do both internally and externally to incorporate the Benczkowski Memo (the “Memo”) and other DOJ guidance into their corporate compliance programs. In our concluding episode, we discuss proactive monitoring, which demonstrates the benefits of using a third party to fulfill the compliance mandates that have been laid out by the DOJ Learn more about your ad choices. Visit megaphone.fm/adchoices
The Department of Justice (DOJ) has announced a number of modifications to its policies governing prosecution of corporations for criminal and civil violations of law. In 2017, DOJ announced its FCPA Corporate Enforcement Policy. Over the last year, DOJ expanded this policy to apply to non-FCPA corporate violations, as well as mergers and acquisitions. In addition, DOJ recently announced the adoption of an Anti-Piling On Policy, as well as revisions to its Yates Memorandum governing prosecution of culpable individuals. In this episode, Michael Volkov reviews DOJ's corporate enforcement policies to provide a current picture of these policies and the impact they have on corporate criminal and civil enforcement.
Thomas Fox, the Compliance Evangelist, is one of the leading writers, thinkers, and commentators on the nuts and bolts of compliance. His always practical advice is now available in one volume, The Complete Compliance Handbook. This book incorporates the most recent pronouncements and guidance from the Department of Justice, including 2017’s Evaluation of Corporate Compliance Programs and FCPA Corporate Enforcement Policy, to provide the most up-to-date advice on what constitutes a best practices compliance program. Fox is an award-winning author of 15 books on compliance, ethics, and leadership, including Lessons Learned on Compliance and Ethics, a bestseller in the International Law category. Tom is also known for Best Practices Under the FCPA and Bribery Act, and the series, Fox on Compliance. Tom leads the social media discussion on compliance through his award-winning blog, The FCPA Compliance and Ethics Blog and the only podcast network dedicated to compliance, ethics and business leadership, the Compliance Podcast Network.
We previously considered the Prong in the Evaluation of Corporate Compliance Programs which was not present in the Ten Hallmarks of an Effective Compliance Program; that being root cause analysis. This addition was also carried forward as a requirement in the Department of Justice’s new FCPA Corporate Enforcement Policy. I want to consider how you should utilize the results of a root cause analysis in remediating a compliance program. Learn more about your ad choices. Visit megaphone.fm/adchoices
The role of the compliance professional and the compliance function in a corporation has steadily grown in stature and prestige over the years. In the 2012 FCPA Guidance (Guidance), under Hallmark Three of the 10 Hallmarks of an Effective Compliance Program (Hallmarks), the focus was articulated by the title Oversight, Autonomy, and Resources. This Hallmark was significantly expanded in both the DOJ's Evaluation of Corporate Compliance Programs and the new FCPA Corporate Enforcement Policy. Learn more about your ad choices. Visit megaphone.fm/adchoices
In the Department of Justice’s Evaluation of Corporate Compliance Programs, Prong 8 Incentive and Disciplinary Measures it states: Incentive System – Consistent Application – Have the disciplinary actions and incentives been fairly and consistently applied across the organization? In the FCPA Corporate Enforcement Policy it states, “Appropriate discipline of employees, including those identified by the company as responsible for the misconduct, either through direct participation or failure in oversight, as well as those with supervisory authority over the area in which the criminal conduct occurred”. Under Hallmark Six of the Ten Hallmarks of an Effective Compliance Program it states: In addition to evaluating the design and implementation of a compliance program throughout an organization, enforcement of that program is fundamental to its effectiveness. A compliance program should apply from the board room to the supply room—no one should be beyond its reach. DOJ and SEC will thus consider whether, when enforcing a compliance program, a company has appropriate and clear disciplinary procedures, whether those procedures are applied reliably and promptly, and whether they are commensurate with the violation. Many companies have found that publicizing disciplinary actions internally, where appropriate under local law, can have an important deterrent effect, demonstrating that unethical and unlawful actions have swift and sure consequences. However, I believe that the 2012 FCPA Guidance’s best practices are more active than the ‘stick’ of employee discipline to make a compliance program effective and I believe that it also requires a ‘carrot’. This requirement is codified in the US Sentencing Guidelines with the following language, “The organization’s compliance and ethics program shall be promoted and enforced consistently throughout the organization through (A) appropriate incentives to perform in accordance with the compliance and ethics program; and (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct.” One of the areas which Human Resources can operationalize your compliance program is to ensure that discipline is handed out fairly across an organization and to those employees who integrate such ethical and compliant behavior into their individual work practices going forward. This is more than financial incentives for ethical behavior but institutional objectivity for your employees. Institutional objectivity comes from procedural fairness. This is one of the things that will bring credibility to your compliance program. Today it is called the Fair Process Doctrine and this Doctrine generally recognizes that there are fair procedures, not arbitrary ones, in processes involving rights. Considerable research has shown that people are more willing to accept negative, unfavorable, and non-preferred outcomes when they are arrived at by, processes and procedures that are perceived as fair. Adhering to the Fair Process Doctrine in two areas of your Compliance Program is critical for you, as a compliance specialist or for your Compliance Department, to have credibility with the rest of the workforce. Finally, it is yet another way to more fully operationalize your compliance program. Administration of Discipline One area where the Fair Process Doctrine is paramount is in the administration of discipline after any compliance related incident. Discipline must not only be administered fairly but it must be administered uniformly across the company for the violation of any compliance policy. Simply put if you are going to fire employees in South America for lying on their expense reports, you have to fire them in North America for the same offense. It cannot matter that the North American employee is a friend of yours or worse yet a ‘high producer’. Failure to administer discipline uniformly will destroy any vestige of credibility that you may have developed. Similarly and as was re-emphasized in the FCPA Corporate Enforcement Policy, there must be real consequences to employee who violate your compliance program. If the regulators come knocking and you have not disciplined any company employees for Code of Conduct or compliance program violations in multiple years, the DOJ and SEC will conclude pretty quickly you are not serious about compliance. Fair process means that you must discipline those who engage in compliance violations no matter what their position is with the organization. Employee Promotions In addition to the area of discipline which may be administered after the completion of any compliance investigation, you must also place compliance firmly as a part of ongoing employee evaluations and promotions. If your company is seen to advance and only reward employees who achieve their numbers by whatever means necessary, other employees will certainly take note and it will be understood what management evaluates, and rewards, employees upon. I have often heard the (anecdotal) tale about some Far East Region Manager which goes along the following lines “If I violated the Code of Conduct I may or may not get caught. If I get caught I may or may not be disciplined. If I miss my numbers for two quarters, I will be fired”. If this is what other employees believe about how they are evaluated and the basis for promotion, you have lost the compliance battle. Internal Investigations The third area the Fair Process Doctrine is critical in, is around internal company investigations. If your employees do not believe that the investigation is fair and impartial, then it is not fair and impartial. Further, those involved must have confidence that any internal investigation is treated seriously and objectively. One of the key reasons that employees will go outside of a company’s internal hotline process is because they do not believe that the investigation process will be fair. This fairness has several components. One would be the use of outside counsel, rather than in-house counsel to handle the investigation. Moreover, if company uses a regular firm, it may be that other outside counsel should be brought in, particularly if regular outside counsel has created or implemented key components which are being investigated. Further, if the company’s regular outside counsel has a large amount of business with the company, then that law firm may have a very vested interest in maintaining the status quo. Lastly, the investigation may require a level of specialization which in-house or regular outside counsel does not possess. An often-overlooked role of any CCO or compliance professional is to help provide employees procedural fairness. If your compliance function is seen to be fair in the way it treats employees, in areas as varied as financial incentives, to promotions, to uniform discipline meted out across the globe; employees are more likely to inform the compliance department when something goes array. If employees believe they will be treated fairly, it will go a long way to more fully operationalizing your compliance program. Three Key Takeaways The DOJ and SEC have long called for consistent application in both incentives and discipline. The Fair Process Doctrine ensures employees will accept results they may not like. Inconsistent application of discipline will destroy your compliance program credibility. This month’s podcast sponsor is Convercent. Convercent provides your teams with a centralized platform and automated processes that connect your business goals with your ethics and values. The result? A highly strategic program that drives ethics and values to the center of your business. For more information go to Convercent.com. Learn more about your ad choices. Visit megaphone.fm/adchoices
FCPA enforcement continued in 2017 with an increased emphasis on individual enforcement. Despite early questions as to the new administration's commitment to FCPA enforcement, the Justice Department and the SEC continued to push aggressive enforcement cases, building on well-established relationships with global law enforcement partners. In a significant development, the Justice Department issued a new FCPA Corporate Enforcement Policy, which created a declination presumption for companies that voluntarily disclose FCPA violations, fully cooperate and remediate their compliance programs. In this episode, Michael Volkov discusses the FCPA Year in Review and significant trends.
In Part II of a two-part series, the top compliance roundtable podcast is back with a review of the new Justice Department’s FCPA Corporate Enforcement Policy. This episode features Jay Rosen and Jonathan Armstrong. Learn more about your ad choices. Visit megaphone.fm/adchoices
In Part II of a two-part series, the top compliance roundtable podcast is back with a review of the new Justice Department’s FCPA Corporate Enforcement Policy. This episode features Jay Rosen and Jonathan Armstrong. Learn more about your ad choices. Visit megaphone.fm/adchoices
In Part I of a two-part series, the top compliance roundtable podcast is back with a review of the new Justice Department’s FCPA Corporate Enforcement Policy. Learn more about your ad choices. Visit megaphone.fm/adchoices
In Part I of a two-part series, the top compliance roundtable podcast is back with a review of the new Justice Department’s FCPA Corporate Enforcement Policy. Learn more about your ad choices. Visit megaphone.fm/adchoices
On November 26, 2017, the Justice Department announced adoption of its new FCPA Corporate Enforcement Policy. Deputy Attorney General Rod Rosenstein announced the new policy at an FCPA Conference in Washington, D.C. Under the new policy, corporations that voluntarily disclose potential FCPA violations, fully cooperate with the investigation and implement timely and appropriate remediation will earn a presumptive declination, subject to the absence of aggravating factors. If the company does not earn the declination, presumably because of the presence of one or more aggravating factors, the company can still earn a 50 percent reduction from the lower end of the US Sentencing Guidelines range and will probably avoid the imposition of a corporate monitor. In this episode Michael Volkov review the new enforcement policy and provides his insight on the impact of the Justice Department's new program.
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