Podcasts about yates memo

In this special 5 part podcast series, I am deeply diving into the Monaco Memo and analyzing it from various angles. In this episode of the FCPA Compliance Report, I am joined by my Compliance into the Weeds co-host Matt Kelly for a deep dive into the weeds of the Monaco Memo. Some of the highlights include: Corporate accountability. Timeliness in turning over evidence of wrongdoing. Baby Carrots in evaluating the corporate history of misconduct. Additions to Evaluation of Corporate Compliance Programs. Tweaks to the Yates Memo formulation. Monitors and Monitorships.  Resources Matt in Radical Compliance Tom in the FCPA Compliance and Ethics Blog Introduction Self-Disclosure Corporate Compliance Programs Monitors What it all means Monaco Memo 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. In this episode, we look at the recently announced Monaco Doctrine as encapsulated in the Monaco Memo. Highlights include: Corporate accountability. Timeliness in turning over evidence of wrongdoing. Baby Carrots in evaluating corporate history of misconduct. Additions to Evaluation of Corporate Compliance Programs. Tweaks to the Yates Memo formulation. Monitors and Monitorships.  Resources Matt in Radical Compliance Tom in the FCPA Compliance and Ethics Blog Introduction Self-Disclosure Corporate Compliance Programs Monitors The heat is on Monaco Memo Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Keith Williamson and Henry Chambers, Managing Directors at Alvarez and Marsal. We look at the firm's Threatscape Report. Highlights of this podcast include: A.    Threat 1-ABC Threats Why do you see a potential increase in anti-corruption investigations? In addition to the US under the FCPA, do you see other countries actively assisting US authorities in ABC investigations? The new DOJ Monaco Doctrine reinstates the Yates Memo, and the DOJ focuses on individuals. What does this mean for ABC investigations? What are some of the key challenges in handling investigations in China? How does this increase in ABC enforcement impact M&A? B.     Threat 2-Fraud and Digital Asset Fraud Threats What are digit assets and digit asset fraud? The US has not yet released many regulations regarding cryptocurrency. What is the role of other countries in such regulation, if any? Why is the Ukraine war the first ‘digital asset war'? How have the worldwide sanctions against Russia impacted the growth and use of digit assets? What key controls and screen tools for digital assets that you advocate a company employ? C.     Threat 3-Data Privacy and Data Protection What is the Personal Information Protection Law, and how does it relate to the Chinese State Secrets and Data Security Laws? How can a non-Chinese company get data out of China? What are some key components of a compliance program for this new law? How does this new law impact investigations in China? Resources Threatscape 2022 report. Keith Williamson, MD, and Head of Disputes and Investigations in Asia. Henry Chambers, Senior Director, Disputes and Investigations. 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

Welcome to a special podcast series on the Compliance Podcast Network, 31 Days to a More Effective Compliance Program. Over these 31 days series in January 2021, I will post a key part a best practices compliance program each day. By the end of January, you will have enough information to create, design or enhancement a compliance program. Each podcast will be short, at 6-8 minutes with three key takeaways that you can implement at little or no cost to help update your compliance program. I hope you will plan to join each day in January for this exploration of best practices in compliance. 2021 was a very significant year for every compliance practitioner and compliance program. While there was a paucity of corporate FCPA enforcement actions, the three enforcement actions were significant with multiple lessons for the compliance professional. In Deutsche Bank, we learned about the costs of a corrupt culture and recidivism, in Amec Foster Wheeler, we saw happens to a company which pays bribes and then tries back out; the criminals they are dealing with have them in an untenable position that they must continue to pay the bribes and how catastrophic failure in pre- and post-acquisition due diligence can lead to massive FCPA violations. Finally, in WPP, we saw how accepted business incentives can become perverse, what happens when you ignore whistleblowers. However, there were two major policy announcements from the Biden Administration which every compliance professional needs to not simply be aware of but study and implement solutions based upon these announcements.  In late October, Deputy Attorney General Lisa O. Monaco key changes in the DOJ approach to FCPA enforcement.: (1) “today I am directing the department to restore prior guidance making clear that to be eligible for any cooperation credit, companies must provide the department with all non-privileged information about individuals involved in or responsible for the misconduct at issue. To be clear, a company must identify all individuals involved in the misconduct, regardless of their position, status or seniority.” This portends a return to the strictures of the Yates Memo. (2) “The second change I am announcing today deals with the issue of a company's prior misconduct and how that affects our decisions about the appropriate corporate resolution. (3) The final change I am announcing today deals with the use of corporate monitors.” This final change is a rejection of the strictures laid out in the Benczkowski Memo regarding the DOJ use of corporate monitorships. In November, the Biden Administration released the United States Strategy on Countering Corruption (the “Strategy”); subtitled “Pursuant To The National Security Study Memorandum On Establishing The Fight Against Corruption as a Core United States National Security Interest”; in response to President Biden's prior declaration of corruption as a national security issue of the United States. While obviously focused on the US government's role in leading the fight against corruption, the entire document portends a major sea change in the approach of fighting bribery and corruption, literally on a worldwide basis. For this reason alone, it should be studied by all compliance professionals. Obviously, this more holistic approach is most welcomed. Corruption does more than simply steal money from the world economy.  Three key takeaways: The Biden Administration released its Strategy on Countering Corruption. Deputy Attorney General Lisa Monaco gave a speech refocusing the DOJ's efforts on FCPA and other white-collar crime. Even with a paucity of FCPA enforcement actions, there were multiple lessons for the compliance professional. 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

In this Episode of the FCPA Compliance Report, I am joined by fan fav and now Hughes Hubbard & Reed partner Mike DeBernardis. We take a look back at some of the key enforcement actions and issues from Q2-2021.    Highlights of this podcast include: FCPA prosecutions. In the corp sphere, only one doesn't really mean anything going forward. FCPA Individual Prosecutions. Is the Yates Memo finally leading to results? Anti-Trust. Will the focus on the large enforcement actions against Big Tech lead to an overall reduction or will the Division be going strong against all forms of anti-competitive behavior? FCA, Fraud in PPP and PPE. Where to you see this going? What about SEC enforcement actions? Will we see more in the areas of accounting fraud, SPACs, climate change and ESG areas? Do CCOs really need to worry about individual enforcement actions? What about environmental crime enforcement actions? Resources  Mike DeBernardis on the HughesHubbard website Mike DeBernardis on LinkedIn Learn more about your ad choices. Visit megaphone.fm/adchoices

MirrorIf you really love blockchains, one thing you might want is to buy Tesla Inc. stock on the blockchain. (People who love blockchains also tend to... wrote about it in 2019 famous example eliminate credit riskcollateralize it with the underlying thingan algorithmic method gotten in trouble for doing things like this Fake Tesla, Apple Stocks Have Started Trading on BlockchainsMirror’s FAQYou do the math on this one not gone wellSchall Law FirmRosen Law Firm talked in 2019federal rule of criminal procedurethis Wall Street Journal articleis a crime they did in IcelandYates Memo Abandoning PlanRetail Investors Six-Year High#Zoltan Punish Company Robo-Advisingbuying spreefortune in limbothe IRS of Bitcoin and your principalsubscribe at this linkhere

In this episode the Chuckleheads take on a topic that is so critical to healthcare organizations but, people make disturbing decisions every day and lead them down the road to significant problems. Don't miss a moment of this serious discussion that could have far reaching effects on you and your organization! A major challenge is issued at the end of the show and the questions is will it be accepted???

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.  

As Wirecard seems to be missing $2bn, Texas Covid-19 cases explode as self-isolating Tom and self-distancing Jay are back to consider some of the week’s top compliance articles and stories on This Week in FCPA.  Supreme Court rules on profit disgorgement. Harry Cassin breaks the story in the FCPA Blog. Tom and Matt Kelly discuss in this week’s Compliance into the Weeds. Mengqi Sun opines it could shrink whistleblower awards, on the WSJ Risk and Compliance Journal. What are 5 ways to use a risk assessment? Jeff Kaplan in the FCPA Blog. Is the SEC on a rampage around internal controls? Bill Steinman thinks so, in the FCPA Blog. What are some of the problems with foreign issuers? Alissa Kole Amico on the Harvard Law School Forum on Corporate Governance. Covid-19 issues and compliance, all on CCI. David England on 3rd Party Risk Management; Chris Jeffrey on your control environment; and Casey Pozarowszczky on fraud risk. What do global ABC enforcement agencies look like? Jon Rausch explores on Dipping Through Geometries. Wirecard is the first and biggest fraud of the 20’s. Reports in the WSJ-CEO Arrested & Missing $2bn, NYT-CEO Resigns, FT-the Reckoning. Novartis settles massive FCPA enforcement action. WSJ Risk and Compliance Journal. Interested in moving to the CCO chair? Check out my latest podcast series The Compliance Lifewhere I interview one CCO type for a month on their journey to the CCO chair and beyond. In on this month’s edition I visit with Ryan Rabalais. In this concluding Part 4, he reflects on the role of coprorate culture. The Compliance Life is now available on iTunes. On Compliance and Coronavirus this week, a week of AMI: Rod Grandon on government bailouts and PPP compliance issues; Jesse Caplan on health care issues during crisis; Dionne Lomax joins me to M&A issues that may be coming down the road. Compliance and Coronavirus is available on iTunes here. On the Compliance Podcast Network, on 31 Days to a More Effective Compliance Program, this month’s topic has been internal reporting and investigations. This week’s offerings: Monday-How an investigation informs remediation; Tuesday-Asking some tough questions; Wednesday-Board investigative protocols; Thursday- how to have a successful Board investigation; Friday- how the Yates Memo changed investigations. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel. Join Tom and Convercent’s Philip Winterburn to look at hotline reporting data during Covid-19 and what it means for compliance practitioners going forward. Tuesday June 30 at 10 AM CT. Registration and information are available here. It’s free. 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

In September 2015, Sally Yates, then Assistant Attorney General, announced the Memo that bears her name (Yates Memo), saying, “we have revised our policy guidance to require that if a company wants any credit for cooperation, any credit at all, it must identify all individuals involved in the wrongdoing, regardless of their position, status or seniority in the company and provide all relevant facts about their misconduct. It’s all or nothing. No more picking and choosing what gets disclosed. No more partial credit for cooperation that doesn’t include information about individuals.” This statement tied directly into the first point of the Yates Memo, which stated, “To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.”  More than three years after the announcement of the Yates Memo, the DOJ modified this course slightly. In 2018, then-Deputy Attorney General Rod Rosenstein relaxed the rigid approach required by the Yates Memo and inserting more flexibility and discretion to government investigators. Rosenstein said that the DOJ would continue to focus on individuals in its white-collar investigations, but he ended the Yates Memo’s approach requiring ALL relevant facts to be turned over to the DOJ. This permitted corporations to receive credit for their cooperation if they identify individuals who were significantly involved in or caused the criminal conduct and permitted greater flexibility and discretion in awarding cooperation credit in civil cases. Then Attorney General Jeff Sessions echoed these concepts in his Keynote remarks at the Ethics and Compliance Initiative in April 2017. He reiterated that the DOJ would focus on individual criminal misconduct in the context of enforcing the FCPA. This continued emphasis will mean that there is even more pressure on corporate compliance programs to get it right and get it right sooner rather than later. Three key takeaways: What is a Yates binder? While the Yates Memo required you to hand over ALL evidence, the Rosenstein Corollary added flexibility. Senior management is now in the firing line.

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.

Under Part 1, Section D. Confidential Reporting Structure and Investigation Process, it stated in part, Properly Scoped Investigation by Qualified Personnel –What steps does the company take to ensure investigations are independent, objective, appropriately conducted, and properly documented? How does the company determine who should conduct an investigation, and who makes that determination? These questions were presaged by the DOJ’s 2015 Yates Memo and the 2016 FCPA Pilot Program. The pressure on every CCO, and indeed company, to get an investigation done quickly, efficiently and, most importantly, right is even greater now.  Jonathan Marks began by cautioning that when considering any well run internal investigation, a CCO must be cognizant of the strictures laid out in the Evaluation. It all begins with who in-house is looking at the complaint and does the CCO, compliance practitioner or legal team have the skills and capabilities to handle the matter which has arisen? Obviously if there are esoteric accounting issues or significant internal control work-arounds and overrides, a CCO may not have those skills to really understand all the issues. Similarly, if the matter is a global FCPA or equivalent bribery and corruption matter, Marks related, these “come in different flavors, and because they come in different flavors you may not have the skills or capabilities to do an investigation that would take place in say Brazil or Russia or China or India.” Three key takeaways: Always remember your ultimate audience may be the government. You must understand both the business environment and extended business enterprise. Communication and collaboration in any investigation are critical so you should begin early and continue to do so throughout the investigation.

Corporate compliance is increasingly becoming an important part of corporate culture and existence. However, there is a great deal of mystery around what compliance truly means, why it’s important, and what needs to be done to meet legal guidelines.    I’m joined by Jim McGinnis, a member of the Antitrust and Competition Practice Group in Sheppard Mullin’s San Francisco office. Jim was formerly an Assistant United States Attorney for the Eastern and Central Districts of California, serving in the Criminal Division from 1984-1988. He specializes in complex litigation and white collar criminal matters with a focus on antitrust issues, often in the international arena.  What We Discuss in this Episode:  What does compliance mean in the corporate setting? What areas of corporate existence does compliance touch upon? Why is it important for corporations to have compliance plans? The Yates Memo and what it aimed to achieve How can a compliance program help protect against exposure to liability? Is there greater compliance when the consequences of noncompliance are criminal penalties as opposed to civil ones? What is the biggest challenge facing multinationals when it comes to compliance programs? Are companies expected to understand the laws and regulations of every country they’re doing business in? How clear is the framework and guidelines for setting up a compliance program? What are certain actions an organization must establish in order to meet the compliance requirements? What is “tone at the top” and how does it affect corporate compliance? Some mistakes Jim has seen throughout his years working in this space Resources Mentioned: The Yates Memo Department of Justice – US Sentencing Guidelines Section 8B2.1 – Effective Compliance and Ethics Program Contact Information: Jim's Sheppard Mullin attorney profile jmcginnis@sheppardmullin.com Thank you for listening! Don’t forget to SUBSCRIBE to the show to receive every new episode delivered straight to your podcast player every Wednesday. If you enjoyed this episode, please help us get the word out about this podcast. Rate and Review this show in Apple Podcasts, Stitcher Radio, or Google Play. It helps other listeners find this show. Be sure to connect with us and reach out with any questions/concerns: LinkedIn Facebook Twitter Sheppard Mullin website This podcast is for informational and educational purposes only. It is not to be construed as legal advice specific to your circumstances. If you need help with any legal matter, be sure to consult with an attorney regarding your specific needs.

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

The Texans stink up their playoff game, the Bears double-doink their way out, the Seahawks lose but have a great backdoor cover, while in the college ranks Clemson absolutely destroys the previously undefeated Crimson Tide; all while the Trump Shutdown continues into its 3rdweek. Tom and Jay are back in the saddle for a look at some of this week’s top compliance and ethics stories.  1.    Nissan and Carlos Ghosn are back in the news. Nissan is investigating other senior exec). Ghosn says the Board approved all his illegal conduct, making it legal. His lawyers try to get him bail. Where is the Magna Carta when you need it 2.    Will Credit Suisse skate liability in the Tuna Bond scandal? 3.    OFAC goes after Venezuealans for PdVSA embezzlement scheme. Jonathan Rusch discusses it his great blog.4.    What are some of the top elements for a culture assessment? 5.    Want to know how to prevent fraud by using effective internal controls. 6.    What does NAFTA 2 mean for the fight against corruption. 7.    The DOJ Fraud Section sees hike in individual prosecutions. What does it mean? 8.    What will be the impact of the Yates Memo? 9.     New pharma code bans all gifts..Tom is joined by Amii Barnard-Bahn with a 5-part podcast series on the top corporate scandals from the Board perspective on Across the Board. Check out the following: Part 1-CBS and Les Moonves; Part 2-the 1MDB and Goldman Sachs; Part 3- Facebook;Part 4-Tesla and Elon Musk; Part 5-Nissan and Carlos Ghosn.  10. Start your new year off with the Compliance Evangelist in the Compliance Master Class training. The first session, hosted by Baker Tilly, will be in San Francisco on January 28 and 29.  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

The Texans stink up their playoff game, the Bears double-doink their way out, the Seahawks lose but have a great backdoor cover, while in the college ranks Clemson absolutely destroys the previously undefeated Crimson Tide; all while the Trump Shutdown continues into its 3rdweek. Tom and Jay are back in the saddle for a look at some of this week’s top compliance and ethics stories.  1.    Nissan and Carlos Ghosn are back in the news. Nissan is investigating other senior exec). Ghosn says the Board approved all his illegal conduct, making it legal. His lawyers try to get him bail. Where is the Magna Carta when you need it 2.    Will Credit Suisse skate liability in the Tuna Bond scandal? 3.    OFAC goes after Venezuealans for PdVSA embezzlement scheme. Jonathan Rusch discusses it his great blog.4.    What are some of the top elements for a culture assessment? 5.    Want to know how to prevent fraud by using effective internal controls. 6.    What does NAFTA 2 mean for the fight against corruption. 7.    The DOJ Fraud Section sees hike in individual prosecutions. What does it mean? 8.    What will be the impact of the Yates Memo? 9.     New pharma code bans all gifts..Tom is joined by Amii Barnard-Bahn with a 5-part podcast series on the top corporate scandals from the Board perspective on Across the Board. Check out the following: Part 1-CBS and Les Moonves; Part 2-the 1MDB and Goldman Sachs; Part 3- Facebook;Part 4-Tesla and Elon Musk; Part 5-Nissan and Carlos Ghosn.  10. Start your new year off with the Compliance Evangelist in the Compliance Master Class training. The first session, hosted by Baker Tilly, will be in San Francisco on January 28 and 29.  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

At the start of each year are a number of reviews of the prior year in FCPA and more general anti-corruption compliance enforcement. One of the top reviews is the Shearman & Sterling annual digest. This year is no exception. In this podcast, I have firm partner Philip Urofsky who discusses some of the top highlights from this year’s digest. In this podcast we discuss: • The number of corporate enforcement actions, with total sanctions of approximately $2.9 billion, made 2018 a fairly typical year in terms of level of FCPA enforcement activity. Although only four more enforcement actions were brought in 2018 than in 2017, the total assessed sanctions were nearly $900 million higher than in 2017, making the penalties assessed in 2018 the second-highest of any year. • Three outlier enforcement actions (Petrobras, Société Générale, and PAC) greatly distort the picture, raised the average corporate sanction for 2018 to $170.8 million, whereas the true average, with outliers excluded, is significantly less than this figure ($17.9 million). This type of difference between the true average and average excluding outliers is typical: in 2017 the true average was $151.2 million while the average excluding outliers was $83.3 million, and in 2016 the true average was $223.4 million while the average excluding outliers was $13.2 million. • The median sanction of $9.2 million is down from recent years ($29.2 million in 2017, $14.4 million in 2016, and $13.4 million in 2015). • What are some of the implications from the Second Circuit’s decision in Hoskins? Does it have the potential to alter the scope of FCPA prosecutions and alter the investigation process by limiting the number of defendants that are within the jurisdictional grasp of the enforcement authorities? • 2018 saw the first coordinated resolution with French authorities in a foreign bribery case, Société Générale. Does it herald the emergence of France as an important global anti-corruption authority? • The DOJ continued its recent trend of updating enforcement policies, announcing: (i) the new anti-piling on policy in matters involving multiple enforcement authorities; (ii) an updated policy on corporate monitors; and (iii) updates to the policy on cooperation credit originally set forth in the Yates Memo. In addition, the effect of the 2017 FCPA Corporate Prosecution Policy, was also apparent in 2018’s DOJ matters. You can link to the Shearman & Sterling 2019 FCPA Digest at:https://www.shearman.com/perspectives/2019/01/shearman-fcpa-digest-2019-and-recent-trends-and-patterns-in-fcpa The link to Shearman & Sterling’s new FCPA site is,  http://fcpa.shearman.com/ Learn more about your ad choices. Visit megaphone.fm/adchoices

At the end of November 2018, the DOJ announced some revisions to the requirements on corporate defendants who hope to earn cooperation credit. Listen in for more detail.

As Tom and Jay prepare for the December holiday season, they consider data privacy, an FCPA trial, the Moonves scandal, give personal remembrances of and say farewell to George H. W. Bush and all while reviewing the week’s top compliance and ethics stories. Topics include: 1.    Compliance Week devotes an entire issue to data privacy. 2.    What are some common pitfalls in 3rdParty due diligence? 3.     Did Jho Low bribe US government officials? 4.    Can banks improve their AML programs without fear of enforcement? US regulators say yes. State of New York-maybe. 5.    How will Goldman Sach’s role in the 1MDB scandal test the DOJ? 6.    Hong Kong's former home secretary was convicted of FCPA violations bribing African officials on behalf of a Chinese energy company. 7.    More commentary on modifications to the Yates Memo and what it means for the CCO. 8.    The investigation into Les Moonves and his conduct at CBS is damning. 9.    Great Women in Compliance premiered on the Compliance Podcast Network this week. 10.  Interested in learning some compliance lessons through the movies? Tom and Jay begin a new podcast series Popcorn and Compliancewhere they consider compliance lessons while indulging in their love of the movies. 11.  Tom and Jay pay tribute to George H. W. Bush. 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

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. In this episode, Matt Kelly and I take a deep dive Michael Cohen’s guilty plea and DAG Rod Rosenstein’s ‘substantially responsible” amending of the Yates Memo. Since Cohen said in the plea agreement that he only lied to Congress to support what he believed Trump wanted; not at Trump’s direction. It gives us the opportunity to explore a gray area about accountability for senior execs complicit in misconduct or to use Rosenstein's language have 'substantial involvement' but not substantially responsible for it. It provides several new lessons learned for the compliance professional (and some old ones as well).  Some of the highlights from this podcast are: What does ‘substantially involved in or responsible for the misconduct’ actually mean?What does ‘substantially involved in or responsible for the misconduct’ actually mean?If the voting public, and employees; don’t see justice served, for legal distinctions they may neither appreciate nor care about, that’s going to blunt their interest in talk about ethical conduct; will it will corrode the trust they have in organizations?What if the senior executives are complicit in the misconduct by fostering a poor control environment; and yet they personally were not substantially involved in the misconduct?Will this drive up the importance of strong governance? For example, where were the auditors, inspecting the control environment? Or would this lead to shareholder lawsuits against the board?How would the Justice Department apply the Rosenstein policy to those circumstances?What were the key lessons learned for the compliance practitioner? Learn more about your ad choices. Visit megaphone.fm/adchoices

As Tom and Jay prepare for the December holiday season, they consider the DOJ/SEC’s strong affirmation that aggressive FCPA enforcement is here to stay, changes to the Yates Memo/plea for increased cooperation and some of the week’s other top compliance and ethics stories. Learn more about your ad choices. Visit megaphone.fm/adchoices

Prior to the Schrems decision by the European Court of Justice, US based law firms could rely on Safe Harbor to use and analyze information from investigations conducted in Europe. However the Schrems decision and subsequent EU privacy rulings and regulations have brought the entire issue around internal investigations into question. In a podcast interview with UK solicitor and data privacy expert Jonathan Armstrong about the decision, Armstrong noted that the decision puts real roadblocks in the path of a US company that could be investigating potential anti-corruption allegations in the UK or EU member country. The biggest issue would be around personal privacy and information. Unlike the US, work emails are covered by the privacy rights afforded to individuals and are not the property of the company. The same is true of other information. Under the Schrems decision, the ability of a US corporation to access that information and then take it back to the US under the safe harbor provision is no longer available.  I asked Armstrong how a company might be able to move forward and internally investigate potential FCPA violations. Armstrong suggested that that the only way at this point was to obtain the consent of the person being investigated. However the obtaining of such consent raises a host of other problems. He said, “Can I really get consent in an internal investigation? Can I go along, speak to my Austrian agent and say, “Peter, I just need you to sign this form to transfer your data to the US”? Now, for consent to be valid the European legislation it has to be fully explained, it has to be honest, it can't be deceptive. I’ve got to say to him, “I want you to sign this form because I want to investigate you. I want to run a full FCPA investigation; you’re the prime suspect. I want to take a look at your emails and I have to inform you that by the way, you have the right not to consent and if you don’t consent there’s no way I can investigate you. Could you sign the form, please?”” As Armstrong went on to note, “What answer is he likely to give in an internal investigation and how would the US authorities feel if I go and tip off the main suspect that he’s under investigation?”  With these two key components of any best practices compliance program, hotlines and internal investigations, seemingly now unavailable to CCOs or compliance practitioners for EU sourced information; I believe there will be additional pressure put on the compliance function. Obviously any US company with EU based operations will have to take steps immediately to ring fence such data originating in Europe. It may also mean that any inquiries will need to be headed by locally based compliance practitioners.   Moreover, if you couple this ruling in the Schrems decision with the Yates Memo, you immediately see the issue involved for any company which is seeking cooperation credit because such company is required to turn over any and all information to the Department of Justice (DOJ) as soon as possible. But now, even if companies can still develop facts and data through internal investigations, in the manner suggested by Pirrotta in using local law firms, you might not be able to get the information back to the US to use. Worse yet, is the option laid out by Armstrong to obtain consent from an investigation target? Not only do I find it very improbable that anyone, European or otherwise, would give such a consent but in the unlikely event such consent is given, you have told the target, they are the target and other data sources might well begin to disappear. Armstrong put it starkly when he said, “you’re going to get no sympathy from the bribery prosecutors, bribery regulators if you mess this up. The SFO [Serious Fraud Office] have already lost the case, allegedly, on the way in which the US firm involved conducted the investigation. They will have, rightly I think, no sympathy at all for people whose investigations are themselves conducted unlawfully. It’s going to need a lot of careful thought to structure data transfers, even to structure interviews. How do you move those interview notes about, how do you look at emails, all of this stuff is going to be absolutely critical not only so that you don’t break data privacy data protection laws, but also tipping off witness, you know, interfering with the scene of an investigation, et cetera, et cetera. All of these things are critical.”  How does the Schrems decision contribute to compliance at the tipping point? If you can use two of the key components in a best practices compliance program; based upon the DOJ/Securities and Exchange Commission (SEC) Ten Hallmarks of an Effective Compliance Program or another standard; it will put significant pressure on other parts of the program. A compliance program will have to be structured more rigorously to prevent FCPA violations through the use of internal controls and transaction monitoring tools. CCOs and compliance practitioners will also have to be more involved and have more visibility into the entire lifecycle of transactions so they can determine how to begin to move from even prevention to proscription of any FCPA violations.  Just as the compliance world changed with the announcement of the Yates Memo, the DOJ Compliance Counsel and the VW emissions-testing scandal; the Schrems decision will change the need for a more robust compliance program going forward to help protect a company.  Three Key Takeaways The Schrems decision significantly impacted US based internal investigations. Study the privacy laws of the country where you are performing your investigation. Informed consent is difficult to obtain but it may be critical for your investigation.         Learn more about your ad choices. Visit megaphone.fm/adchoices

On June 16, 2017, the Department of Justice (DOJ) issued a Declination to Linde North American Inc. and Linde Gas North America LLC (collectively “Linde”). This is the first Declination issued by the DOJ in the era of the Trump Administration. For that reason alone, it was instructive and should be studied by the compliance profession. However, the case presented several interesting factors which merit consideration so we are discussing in depth to present lessons to be learned for the Chief Compliance Officer (CCO) or compliance practitioner.  The Bribery Scheme  Linde acquired Spectra Gases, Inc. (Spectra Gases) in October 2006. In November 2006, it purchased certain assets from the National High Technology Center (NHTC) of the Republic of Georgia. One of the keys to this purchase was a piece of equipment called the ““boron column,” which were used to produce boron gas.” Sales of boron gas after the acquisition helped fund the purchase price and payout to Spectra executives who stayed on after Linde purchased Spectra Gases.  Unfortunately, the three Spectra executives who stayed on were in cahoots with corrupt offices from the NHTC who made the sales agreement with Linde. Part of the Earn-Out by the former Spectra (now Linde) officials was paid to these corrupt government officials, both directly and through certain third parties. But the funding scheme to pay the bribes was quite creative and demonstrates once again to the compliance practitioner the myriad ways in which funds can be generated to pay bribes.  For reasons not made clear, Linde did not purchase the boron column outright but allowed the former Spectra executives and the corrupt NHTC officials to form two new entities to own and operate the boron column, Spectra Investors LLC (Spectra Investors) and Spectra Gases Georgia, which was wholly owned by Spectra Investors. Spectra Investors was owned 51% by the corrupt NHT officials and 49% by the Spectra Gases executives who now worked for Linde. Spectra Gases Georgia was formed as a separate management company, by the NHTC officials, which was claimed to provide services to Spectra Investors for which it would receive recompense. Of course, there was no evidence of services being delivered under this arrangement as it was simply a mechanism to funnel monies to the corrupt officials.  As a result of the ownership structure of Spectra Investors, with 51% being owned by corrupt NHTC officials and the management services contract, the corrupt NHTC officials received “approximately 75% of the profits generated by the boron column” while Spectra Gases received 25% of the profits. Clearly even with bribery and corruption, it was a bad business deal. In January 2010, Linde dissolved Spectra Gases and became its successor-in-interest and at some point later discovered the illegal conduct. Prior to the time of the dissolution, Spectra Gases had “received approximately $6,390,000”. After Linde became the direct owner, it “received approximately $1,430,000 as a result of the corrupt” actions.  The Declination  While there is a dearth of fact about how the matter came to the attention of Linde and when it disclosed the matter to the DOJ, the decision to decline to prosecute was based on the following factors: (1) Linde’s timely self-disclosure; (2) a “thorough, comprehensive and proactive investigation” [emphasis supplied]; (3) Linde’s full cooperation and meeting the Yates Memo requirement for disclosing all known relevant facts about the “individuals involved in or responsible for the misconduct”; (4) full profit disgorgement; (5) Linde’s enhancement of its compliance program and internal controls; and (6) Linde’s full remediation, including termination or discipline of the three Spectra executives and lower-level employees involved in the misconduct; termination of the fraudulent management contract between the corrupt NHTC officials and Spectra Investors and termination of the Earn-Out payment due to the former Spectra executives who became Linde employees. The company also made the following payments.   Lessons Learned  This was yet another Foreign Corrupt Practices Act (FCPA) action where a company performed insufficient due diligence in the acquisition phase. The timing of the Linde purchase of Spectra Gases and Spectra Gases’ purchase of the income producing assets is too close in time to be a coincidence. It would certainly appear that Linde purchased Spectra Gases to facilitate its acquisition of the boron column and other assets. If your company is going to make such a multi-step acquisition, you must perform due diligence on all the actors and the assets involved.  The Byzantine corporate structure created for the ownership of the boron column, its operation and management contract are clear red flags that any CCO should sniff out immediately. While I am sure the internal corporate excuse for this clear ruse was the ubiquitous ‘tax considerations’; every such transaction should be reviewed by compliance as well. Anytime there is more than one entity to accomplish one task, there is the possibility of fraud present. Further, it is not clear how Linde could not have been aware of the ownership interests of a company which it ultimately controlled. It would seem that the company did not even make any inquiry.  Even in 2006, the Republic of Georgia’s reputation for bribery and corruption was quite high. The 2006 Transparency International-Corrupt Perceptions Index (TI-CPI) listed Georgia at 99 out of 176 countries listed so that alone warranted red flag scrutiny. If you are purchasing an entity in a country with such well known affinity for corruption, extra care is warranted. Perhaps back in 2006, Linde did not view the FCPA as something which it would deal with in such a situation.  Yet even with all the apparent miss-steps and non-steps of compliance, the company was able to secure a declination from the DOJ. While there may be some additional penalties or sanctions by the Securities and Exchange Commission (SEC) for the failures of internal controls, the result obtained by Linde was certainly a superior result. The company would seem to have met the four pillars under the FCPA Pilot Program through (a) self-disclosure, (b) extraordinary cooperation, (3) full remediation, and (d) profit disgorgement. Interestingly, the profit disgorgement in this case would appear to have been beyond the five year of limitations for profit disgorgement under the recent Supreme Court decision in Kokesh. If there is a FCPA enforcement action brought by the SEC perhaps additional facts will be recited in any resolution documents.  Nevertheless, kudos are due to Linde and its counsel for obtaining this declination. Every CCO should study it for both the superior result received and underlying facts to see if you face anything similar in the Republic of Georgia or elsewhere. For a full copy of the Linde Declination, click here.  Learn more about your ad choices. Visit megaphone.fm/adchoices

When then Assistant Attorney General Sally Yates, announced the Memo that bears her name, she said the following, “we have revised our policy guidance to require that if a company wants any credit for cooperation, any credit at all, it must identify all individuals involved in the wrongdoing, regardless of their position, status or seniority in the company and provide all relevant facts about their misconduct. It’s all or nothing. No more picking and choosing what gets disclosed. No more partial credit for cooperation that doesn’t include information about individuals.” This statement ties directly into the first point of the Yates Memo, which stated, “To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.”  The Yates Memo and Yates’ remarks indicated a transition to a new era of FCPA enforcement. The Yates Memo required that the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) to investigate individuals immediately at the start of investigations. She stated, “the department instructed its attorneys that, going forward, they are to focus on individuals from the start of an investigation, regardless of whether the investigation begins civilly or criminally. Moreover, once a case is underway, the inquiry into individual misconduct can and should proceed in tandem with the broader corporate investigation. Delays in the corporate case will no longer suffice as a reason to delay pursuit of the individuals involved.” Even though these remarks were directed at government lawyers, corporations are now required to initially change the focus of their investigations from attempting to perform any type of root cause analysis to obtaining evidence against individuals and turning it over to the government as soon as possible.  For the Chief Compliance Officer (CCO) or compliance practitioner, this means the entire focus of your investigative protocol has changed. Previously an investigation was to determine how conduct that might have violated the FCPA had occurred, then focus on how to remedy it. The first step a CCO or compliance practitioner would take when sufficient evidence was developed was to fix the problem so that it did not re-occur going forward. If there were compliance program or internal control weaknesses, they would be immediately fixed so that neither the original perpetrators could continue the conduct but also so others could not take advantage of any such structural weakness.  After the Yates Memo, that is no longer the case. The DOJ now expects you to bring them information about potentially culpable individuals who can be prosecuted going forward. This means employees are going to immediately stop talking to you if they were inclined to do so in the first place. It will require performing an essential root cause analysis more difficult and the attendant remedy that is a part of any best practices compliance program.  But Yates went further than simply saying the DOJ expects you to turn over your own employees. She made clear that both she and the DOJ want companies to give up senior executives involved in illegal conduct. She said “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail.” Here the difficulty is around the FCPA requirement for a criminal prosecution or intent. How do you determine intent in a manner where senior executives may never have been involved directly in a transaction? Does this mean insufficient tone at the top will somehow morph into intent for a FCPA prosecution? Whatever it may mean going forward, at the very least I think it means that high heads in an organization could very well start to roll.  The Yates Memo, when read in conjunction with the Frederic Bourke conviction, make clear that senior management, as well as other individuals, are now directly in the DOJ’s sights to prosecute for FCPA violations. This means that even if lower level employees are engaging in conduct which senior management did not know about or even told them not to engage in; senior management may be deemed by the DOJ to have engaged in conscious indifference by not engaging in ongoing monitoring as a part of an overall best practices compliance program. Simply expecting that employees will not violate the FCPA is no longer enough. Companies must monitor transaction to detect and prevent violations. With the Yates Memo now the effective policy of the DOJ, senior management who do not actively monitor their organizations may subject themselves to personal FCPA criminal liability. Given the scrutiny of the Standard Bank Deferred Prosecution Agreement (DPA) in the UK, I think it may well be the time where enforcement authorities begin to look at those responsible for an activity where a violation of anti-bribery/anti-corruption laws take place in addition to those committing the legal violation. Bourke was found guilty for conscious avoidance. How much of a stretch will it be for those senior managers who allow such behavior to be seen as either the norm or indeed expected? John Kay, writing in the Financial Times (FT) in an article entitled “Ignorance is no defence for financial misconduct”, wrote in the context of financial institution misconduct “If it is a criminal offence to be in charge of a den of thieves, the prosecution need only establish that you were in charge of it, not that you were yourself a thief. It is no defence that you thought the organisation was a monastery, which is broadly the argument employed by those made ‘physically ill’ by the discovery of what their subordinates had been doing.” After the Yates Memo, the same may hold true for senior management in companies which violate the FCPA. The impact of the Yates Memo was magnified by Attorney General Jeff Sessions through his remarks at the Ethics and Compliance Initiative (ECI) in April 2017. He reiterated that the DOJ would focus on individual criminal misconduct in the context of enforcing the FCPA. This continued emphasis will mean that there is even more pressure on corporate compliance programs to get it right and get it right sooner rather than later.  Three Key Takeaways If companies want any credit, they must investigate potentially culpable individuals first and turn over the results to the DOJ. This may require companies to more thoroughly investigate conscious indifference. Never forget conscious avoidance is specifically prohibited under the FCPA.       Learn more about your ad choices. Visit megaphone.fm/adchoices

In this sequel to our panel last year on “The Limits of Federal Criminal Law,” we ask a distinguished panel to discuss how enforcement policy is evolving under Attorney General Jeff Sessions. Is the Yates Memo targeting individual employees of a corporation still operative? Do the speeches of the new Attorney General give any insights into future enforcement tendencies? -- This event was held on June 13, 2017, at the National Press Club in Washington, DC. -- Featuring: Hon. Alice Fisher, Partner, Latham & Watkins LLP; Matthew S. Miner, Partner, Morgan, Lewis & Bockius LLP; and Hon. George J. Terwilliger III, Partner, McGuireWoods LLP. Moderator: Hon. Richard J. Leon, U.S. District Court for the District of Columbia.

Today, I want to consider some of the challenges you may well face during an investigation.  Beyond the basics, a company must consider the intake process as a starting point, however Marks noted one of the biggest challenges is in the intake process. 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.”  The lack of an intake process immediately presents a challenge in beginning to work through an allegation of wrongdoing due to the inability to track when the allegation or information was received, who sent it, who received it, what did the company do when they received it? If a company has a formal ethics reporting system, with recordation of information “there’s some workflow, it’s a lot easier to kind of work through some of those things”, so there is an appropriate level of documentation to follow.  Yet Marks has seen failures in even these basic steps “many times people do not read their emails on a timely basis, and getting to the root of the issue quickly could be the difference between somebody allowing the company to investigate this the right way, or incentivizing an individual to go outside the organization such as to SEC whistleblower program.” This makes the intake process critical because it assures that things are not only received, “but they’re looked at on a regular and timely basis and there is a process.”  One area that still causes challenges is retaliation against whistleblowers. You might think that corporate America got the message that not only is retaliation incredibly idiotic and divisive but also illegal under both Sarbanes-Oxley (SOX) and Dodd-Frank but sadly that is not the case. Marks believes that avoiding retaliation is critical not only for an organization but also to foment a successful investigation. He stated, “Avoiding retaliation is very critical. I think there’s a real opportunity where human resources, if properly trained, can work with the rest of the team members and advise them on things that they should not be doing and things that they should be doing in order to avoid either the appearance of retaliation or the actual retaliation against the individual or individuals who reported or brought forth the potential of the alleged misconduct.”  Equally important is that a company wants to encourage a stand-up culture. When individuals are trying to do the right thing, you certainly want to inspire other to do so as well. Marks related, “When somebody reports an ethical lapse, it generally means to me that they’re doing their job. And so, the indirect impact, or sometimes the direct impact of that is sometimes people are looked at as snitches or not towing the company line or they’re just generally out of bounds can negatively impact the organization.”  An area where Marks has seen companies have difficulties in is what he termed threatened or pending litigation. Any investigation can morph into a much more serious situation and you must be ready to answer such questions as “(1) Does this gravitate itself into a class action lawsuit? Or (2) Does this gravitate to a regulatory review and subject to some punishment there?” The key is that as the investigation begins to uncover things and certain facts come to light, pending or threatened litigation is something that should always be discussed, but discussed very carefully and it should be discussed once those facts come to play. Sometimes you don’t have all those facts but sometimes it does make sense to kind of prognosticate and consider situations such as “This is what could happen. These are the issues that potentially could be uncovered.” Marks concluded, “I really do think that it’s important to think a couple of steps ahead and look at this as a chess match and never underestimate the fact that there could be pending or threatened litigation.”  Not surprisingly, another area of challenge is when the regulators will not accept the investigation or are not satisfied with the results. While I would submit that if you follow the strictures laid out by Marks, that will satisfy regulators, he noted that there must be an appropriate level of skepticism brought by the investigation. He said there can be regulator issues when “there was not proper skepticism, there was not proper independence or simply things were not looked at under the right lens.” But once again the answer is to go through the steps that Marks laid out, or any other well defined protocol and have an independent team handling the investigation. Interestingly,a similar situation can arise if a company’s own auditors refuse to accept the results of an investigation. Marks said this is usually related to some type of unexpected development arises in an investigation. Marks noted, “when auditors are involved the element of surprise is never good.” He believes it is important to keep internal audit aware of developments as “they might want to do a shadow investigation, they might want to understand the scope of your expanded investigation and most certainly they want to understand the financial impact.” The reason is that if the company auditors do not accept your investigative results, “they may send you back to the drawing board. When that happens, all types of problems could manifest themselves or come out.”            Marks noted that at times the most difficult challenge is when the company itself is reluctant to accept the results of the investigation. This comes when a company is in denial, believing it has a robust compliance program and internal controls or, worse yet, it simply believes that it is an ethical company. One or more of these indicia usually manifest themselves as a company with paper compliance program, a Chief Compliance Officer (CCO) with a title but no authority and a weak compliance culture. Marks said, “When I say the company does not respect the investigation, it’s almost like they’re fighting with you because they believe that nothing could ever go wrong. That really does send a very, very clear message, not only internally, but should it get out externally as well. It’s an indication to us that there’s a problem with the culture, there’s a problem with the compliance program, there’s generally a problem with governance overall. There are probably bigger issues there other than the matter that’s generally on the table.”  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 Department of Justice’s (DOJ’s) Yates Memo and the Foreign Corrupt Practices Act (FCPA) Pilot Program and the release of the DOJ’s Evaluation of Corporate Compliance Programs (Evaluation), the pressure on every CCO and company to get an investigation done quickly, efficiently and, most importantly, done right is even greater now. Jonathan 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 Takeaway 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 foreward in good faith. Always think several steps ahead.                 Learn more about your ad choices. Visit megaphone.fm/adchoices

Beginning with the Department of Justice’s (DOJ’s) Yates Memo, its Foreign Corrupt Practices Act (FCPA) Pilot Program and then the release of the Evaluation of Corporate Compliance Programs (Evaluation), I believe the DOJ has put even more pressure on every Chief Compliance Officer (CCO), and indeed every company, to get an investigation done quickly, efficiently and most importantly done right is even greater.    Jonathan Marks, a partner at Marcum LLP and a well-known internal investigation expert, provides some of his thoughts around what goes into a well-run investigation. His perspective is from someone who performs investigations outside your organization, either because the matter was so serious an outside expert was required; specific subject matter expertise (SME) was not available in your organization or due to the objectivity of the investigation. Today I want to consider who should be on your investigation team.  As discussed previously data collection, retention and preservation are critical elements of any significant internal investigation so you will need to have the involvement of your IT function. IT can help put a litigation hold on email that can help with the preservation of data in other areas of the organization. Further, they can assist with certain other aspects as more facts and circumstances are known.  HR is often an underutilized function for an internal investigator. HR can be very useful to provide context about employees’ work history. There may be notes in HR areas as diverse as training and exit interviews. HR can also be useful to give the investigator “some insight regarding the credibility of the individual that might be making the allegation. For example, are they a good and trusted employee? How long have they been there? What’s their general demeanor? What’s been the feedback on that particular individual?”  Both the Board and senior management can provide different types of support for an investigation. Marks noted the Board has oversight responsibility and senior management is responsible for the day-to-day, tactical operations of the organization, including the internal controls. This means from the Board’s perspective, “we would want to make sure that our governance processes were in place and operating effectively when it comes to an investigation. So, my concern, or concern from a board member’s perspective, from an investigation, early on, is what’s the financial impact; what’s the legal impact, for a publicly traded organization? Are there potential issues here which we as a Board need to be concerned with going forward?”  From the senior management’s perspective, Marks believes “the key thing there is if there is an issue and there was the ability to either override controls or controls weren’t in place or there was something that basically caused this, what do we need to do to assess that? What do we need to do to fix that? What was the root cause for this potential bad behavior? Like I said, how do we fix that or how do we put a plan together in order to fix that or shore that up?” He emphasized this is not the Board’s responsibility but that of senior management. Marks also pointed out that while an investigator would probably assume that the Board of Directors had been notified at this point about the issues being investigated, the investigators may want to make certain the Board has been made aware of the incident and investigation.            Marks suggested outside consultants in the form of forensic accountants should be a part of your investigation team. Such a skilled set team member can bring an investigative mind that drives them to answer questions about what occurred, when and how it happened, and who was involved. However, most lawyers do not understand how forensic accounting is performed and how they can assist your compliance investigation going forward.  Forensic auditing works to collect and analyze accounting and internal-controls evidence. They use this information to produce a fact-based report that can inform the decision-making process in inquiries, investigations and dispute resolution. The by-products of internal audit’s work can include remediation strategies to help a company mitigate and remedy procedural or internal-controls gaps that allowed the underlying issue to occur. Inquiries into accounting and internal controls raise a host of technical issues requiring specialized knowledge that forensic accountants are uniquely positioned to provide. This is a qualitative difference from internal audit, which more often looks at process to determine if it has been adhered to in a procedure.  The objective of a forensic audit investigation team member is to collect, analyze and report on the evidence or facts surrounding an act that often has litigious, fraudulent or criminal implications. Auditors also collect and analyze evidence, but an independent auditor’s objective is to attest to the credibility of assertions that are under examination, such as the material accuracy of financial statements for which the audited company’s management is responsible. However, a key role of the forensic accountant is to identify a concern and to notify company management about the issue or issues discovered.  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 the corporate compliance function involved, to understand what compliance program was in place at the time of the incident in question, what procedures the compliance function had and understand if this truly was a gap in the compliance function or “maybe there was an area within the compliance function that wasn’t 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. Learn more about your ad choices. Visit megaphone.fm/adchoices

  In the Department of Justice’s (DOJ) Evaluation of Corporate Compliance Programs (Evaluation), under Prong 7 Confidential Reporting and Investigation asks the following: Properly Scoped Investigation by Qualified Personnel – How has the company ensured that the investigations have been properly scoped, and were independent, objective, appropriately conducted, and properly documented? These questions were clearly presaged by the DOJ’s Yates Memo and the Foreign Corrupt Practices Act (FCPA) Pilot Program. The pressure on every Chief Compliance Officer (CCO), and indeed company, to get an investigation done quickly, efficiently and most importantly done right is even greater now.    Jonathan Marks, a partner at Marcum LLP and a well-known internal investigation expert, gave some of his thoughts around what goes into a well-run investigation. Marks began by cautioning that any CCO must be cognizant of the strictures laid out in the Evaluation. It all begins with who in-house is looking at the complaint and does the CCO, compliance practitioner or legal team have the skills and capabilities to handle the matter which has arisen? Obviously if there are esoteric accounting issues or significant internal control work-arounds and overrides, a CCO may not have those skills to really understand all the issues. Similarly, if the matter is a global FCPA or equivalent bribery and corruption matter, Marks related, these “come in different flavors, and because they come in different flavors you may not have the skills or capabilities to do an investigation that would take place in say Brazil or Russia or China or India.”  All of this ties into how the government will view an investigation, particularly if the company does not have the skills and capabilities necessary to analyze the allegation, or if the allegation of fraud is serious enough where they believe that an independent investigation rather than an internal investigation really needs to be done.” Moreover, if allegations or the investigation are going to be subject to regulatory scrutiny, one of the benefits of having somebody come in from the outside is that there is independence, skepticism, the ability to work through things unlike you would with an internal investigation where an internal audit might be involved. Marks concluded by noted, “from an outsider’s perspective looking in, there is more credibility of having somebody come to conduct your investigation.”  Marks believes the first thing that any investigator must do is understand the business environment and the extended business enterprise. He further stated, “what I mean is really understand the business you’re dealing with, the industry that it’s in, the potential risks, the pressures and motivations that might be at play here. Understanding that generally with most frauds there is some pressure to do something because of something else and there are some motivations.” Such an initial understanding can help you formulate a comprehension of the internal controls that might be in place or that were lacking that could either have not been designed properly or overridden.   The next step is to quickly and thoroughly analyze the initial underlying facts and circumstances when it comes to the issue or the issues at hand. For Marks, the number one issue is the credibility of the complaint, which is more than simply the credibility of the complainant. Marks said it was important to understand how the allegations of wrongdoing came to light and the seriousness of the issues involved. He went on to note that his initial inquiry would include such questions as, “What are people saying happened or what is an individual saying that happened? You know the background of the complaint, if known. How long have they been with the organization? Are they credible? Have they complained before? If in fact this was either a whistle blower or a tip.”            At this early assessment, Marks believes you should also consider the possible legal and financial impact of the allegations. If you determine it is serious at this early juncture, you should always consider your internal crisis management team and if your organization does not have one, you should consider retaining such an expert. Marks explained, “Crisis management doesn’t necessarily mean that a crisis happened, it means that if in fact we are in crisis mode, how does that impact the company? So, thinking about those issues and then knowing what to do, if in fact you are in a crisis mode, I think is ultra-critical.” He went on to add, “I think crisis management is totally underplayed. I think that many organizations don’t have an appropriate crisis management plan. If something bad does happen, a lot of times I see organizations that are struggling to kind of put the pieces together.”  Marks also noted that both communication and collaboration are critical even at this early stage. He advocated that the company ask a series of questions such as what issues are “on the table” and who is impacted by these issues within the company; is it the company auditors or some other corporate function? He also advocated considering third parties and contracted entities in this calculus by inquiring if there were key suppliers impacted by the investigation. On the one hand, “a key supplier that might get wind of this and might not want to do business with us anymore?” Yet, conversely, such a key supplier could be a sole source supplier so you may need think about alternative arrangements. You should begin to consider these issues early on and continue to think about them as you are going through and doing and investigation.  Document preservation is always a critical issue and Marks believes this is one which government regulators will pay particular attention to both at this initial phase and throughout the investigation. You need to take steps to ensure all data is locked down. This means getting into the weeds on such issues as where are all your company’s servers located; what is your back-up situation; do you have hand-held devices secured and are the organization’s instant and text messaging tied down. If you do not take such steps you could well find yourself in a situation where either information is lost or there's a possibility or suspicion that information is lost. Unfortunately, that is the situation that leads to a prosecutor’s imagination going wild. Basically, you need to have the information locked down so that if the government wants to come in and perform an independent review or test your hypothesis, you can provide them with the required information.  Three Key Takeaways Always remember your ultimate audience may be the government. You must understand both the business environment and extended business enterprise. Communication and collaboration in any investigation are critical so you should begin early and continue to do so throughout the investigation.     Learn more about your ad choices. Visit megaphone.fm/adchoices

Show Notes for Episode 47, for the week ending April 7, the Season Opener Edition In this episode, Jay and I have a wide-ranging discussion on some of the week’s top FCPA and compliance related stories. We discuss:  Wrap up from the SCCE European Compliance and Ethics Institute.SEC Unit Chief Kara Brockmeyer announces her retirement. Click  here for Matt Kelly’s article on Radical Compliance.Wal-Mart announces its 2016 spend on its FCPA investigation and remediation of $99MM. Click  here for Matt Kelly’s article on Radical Compliance.Upjohn warnings after the Yates Memo. See article the  Grand Jury Target blog.Report on OECD Integrity Forum. Allison Taylor writes in the  FCPA Blog.Astros, Red Sox and Dodgers all lead their divisions.Jay previews his weekend report. Learn more about your ad choices. Visit megaphone.fm/adchoices

Show Notes for Episode 47, for the week ending April 7, the Season Opener Edition In this episode, Jay and I have a wide-ranging discussion on some of the week’s top FCPA and compliance related stories. We discuss:  Wrap up from the SCCE European Compliance and Ethics Institute. SEC Unit Chief Kara Brockmeyer announces her retirement. Click here for Matt Kelly’s article on Radical Compliance. Wal-Mart announces its 2016 spend on its FCPA investigation and remediation of $99MM. Click here for Matt Kelly’s article on Radical Compliance. Upjohn warnings after the Yates Memo. See article the Grand Jury Target blog. Report on OECD Integrity Forum. Allison Taylor writes in the FCPA Blog. Astros, Red Sox and Dodgers all lead their divisions. Jay previews his weekend report. Learn more about your ad choices. Visit megaphone.fm/adchoices

In this episode I visit with Brandon Essig, a former DOJ prosecutor when the Yates Memo was released. He discusses the impact of the Yates Memo inside the DOJ and the triage that prosecutors use on cases in response. For Brandon's blog post on the topic on Linkedin, click here.  Learn more about your ad choices. Visit megaphone.fm/adchoices

This episode is dedicated to the Justice Department’s Evaluation of Corporate Compliance Programs, which was released in February. In this episode, Matt Kelly and Mike Volkov provide next insight. Next week will be views from Jay Rosen and Jonathan Armstrong.    Matt Kelly opens by considering the Evaluation as a continuation in a series of pronouncements around ‘operationalizing’ your compliance program. He discusses whether this approach consistent or different with the regulatory requirements of SEC FCPA enforcement and how would this document intersect with SEC ‘regulatory enforcement’ of the FCPA? Finally, he considers whether the Evaluation ties in at all to a control environment under either the COSO 2013 Framework or COSO ERM framework. For Matt Kelly’s posts see the following:             Fresh FCPA Guidance from the Justice Department; and             Deeper Dive into new DoJ Compliance Guidance Mike Volkov discusses why the Evaluation was issued literally in the dead of night and why would the DOJ issue such a significant document with no publicity. He discusses how this might play out during an ongoing FCPA investigation with outside counsel’s interactions with the DOJ and under the Yates Memo. He considers whether the Evaluation draw anything from the Yates Memo or are they really apples and oranges and whether the Evaluation build upon the 2012 FCPA Guidance or does it supplement it. For Mike Volkov’s posts on the Evaluation see the following:             Under the Dark of Night, DOJ Moves the Compliance Ball;             DOJ’s Compliance Program Evaluation: the Role of the CCO;             DOJ’s Compliance Program Evaluation: Risk Assessment, Policies and       Procedures and Third-Party Risk Management; and             DOJ Compliance Expectations Concerning Training, Internal Investigations and     Audits  For Tom Fox’s posts on these topics see the following:             New DOJ Evaluation-Valuable Document for the Compliance Practitioner,             Part I; and             New DOJ Evaluation-Valuable Document for the Compliance Practitioner,             Part II For Jay Rosen’s post see, Still in the Enforcement Business and Evaluation of Corporate Compliance Programs  The members of the Everything Compliance panel include: Jay Rosen – Vice President of Business Development and Monitoring Specialist at Affiliated Monitors. Rosen can be reached at JRosen@AffiliatedMonitors.com. Mike Volkov – One of the top FCPA commentators and practitioners around, Volkov is the Founder and 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 and former Editor of Compliance Week. Kelly can be reached at mkelly@radicalcompliance.com. Jonathan Armstrong – Rounding out this distinguished panel is our UK colleague, a lawyer with Cordery Compliance in London. Armstrong can be reached at armstrong@corderycompliance.com. Learn more about your ad choices. Visit megaphone.fm/adchoices

What are metrics for a Board around compliance? Former Assistant Attorney General Leslie Caldwell laid out some that the Justice Department 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. They charge the Board with a substantive role in the actual doing of compliance going forward. One of my concerns is this metric sets up Board members and senior management for prosecution under the Foreign Corrupt Practices Act (FCPA) in the new era of the Yates Memo where companies are required to investigate and turn over individuals to the DOJ for prosecution if they want to receive any credit for cooperation. Of course, the Yates Memo also articulated the DOJ’s stated intention to more aggressively prosecute individuals as well.  Board Role You 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? Boards of Directors should take a more active role in overseeing the management of risk within a company. Now this includes having a FCPA compliance program in place and actively oversee that function. This means if a company’s business plan includes a high-risk proposition, there should be additional oversight. In other words, there is an affirmative duty to ask the tough questions. But it is more than simply having a compliance program in place. The Board must exercise appropriate oversight of the compliance program and indeed the compliance function. The Board needs to ask the hard questions and be fully informed of the company’s overall compliance strategy going forward. Some of the areas for hard questions include Corporate Compliance Policy and Code of Conduct – Is there an overall governance document which will inform the company, its employees, stakeholders and third parties of the conduct the company expects from an employee, translated into appropriate local langauges. Is there documents of delivery and training on this or these documents? Risk Assessment – Has the Board assessed the compliance risks associated with its business? Implementing Procedures – The Board should determine if the company has a written set of procedures in place that instructs employees on the details of how to comply with the company’s compliance policy. Once again, have these implementing procedures been translated as appropriate and do employees understand these procedures? Are all of the above documented? Training – Has the Board been trained to understand its role in an effective compliance program? Monitor Compliance – Has the Board independently tested, assessed and audited to determine if its compliance policies and procedures are a living and breathing program and not just a paper tiger.  There are several paths a Board of Directors can take to fulfill this duty. Obviously the full Board can be apprised of compliance issues and handle them appropriately. However this may be unwieldy or not workable if there is a large Board and the compliance function only has limited time to present a quarterly and annual report. The Audit Committee is usually considered a natural venue for the compliance function to report to as it handles issues somewhat related to compliance already.  Through the convergence of the Yates Memo and these metrics, it is time for companies to create a Compliance Committee separate and a part from the Audit Committee. This Board-level Compliance Committee would be charged with oversight of FCPA compliance and ethics but could also be the reporting venue for anti-money laundering compliance (AML), export control compliance and all other such disciplines within an organization. Further after the Volkswagen emissions-testing scandal, not only have a robust compliance program but direct and transparent Board oversight may be the only thing stopping injury to your reputation from a competitor’s illegal or unethical conduct.  Three Key Takeaways The Justice Department expects active engagement by a Board around compliance. Does the Board exercise independent review of the compliance program? The convergence of the Yates Memo, Hui Chen and the FCPA Pilot Program. Learn more about your ad choices. Visit megaphone.fm/adchoices

At the SCCE 2016 Compliance and Ethics Institute, I sat down with four of the top compliance commentators in the field for my first roundtable-style podcast. It was so successful that I persuaded the gang to come back together every couple of weeks for a formal podcast, which is entitled Everything Compliance. The premier episode is available for your listening pleasure today. I will post a new episode every two weeks. I host these four well-known compliance practitioners and commentators:Jay Rosen (Mr. Translations) - Jay is Vice President of Legal & Corporate Language Solutions at United Language Group. Rosen can be reached at rosen@ulgroup.com.Mike Volkov - One of the top FCPA commentators and practitioners around and is the Chief Executive Officer (CEO) and owner of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.Matt Kelly - Founder and CEO of Radical Compliance, is the former Editor of the noted Compliance Week Kelly can be reached at mkelly@radicalcompliance.comJonathan Armstrong - Rounding out is our UK colleague, who is an experienced lawyer with Cordery Compliance Limited in London. Armstrong can be reached at armstrong@corderycompliance.com.The format is a roundtable discussion where I throw out a question to one commentator to lead the discussion. From that starting point we will all join in. I also include an “On My Mind” segment where each participant discusses what is on the forefront of their mind. This podcast is longer than my others, coming in at around 60 minutes, which allows us to explore the week’s issues in depth. In the inaugural episode we discuss the following subjects: For Volkov’s post on conflicts of interest (COI) in internal investigations after the Yates Memo, click here. For Kelly’s blog post on the intersection of CEO pay and Chief Compliance Officers (CCOs), click here. For Armstrong’s interview with Max Schrems, click here and Cordery’s FAQs on Privacy Shield, click here. For Rosen’s blog post Designing Your 2017 Ethics, Compliance & FCPA Conference Schedule, click here. This new podcast Everything Compliance joins the four other podcasts I have on different aspects of compliance. The original FCPA Compliance and Ethics Report focuses on the nuts and bolts of compliance. Unfair and Unbalanced - is a podcast I do with SCCE CEO Roy Snell. In it we focus on wide ranging issues for the compliance profession. Compliance into the Weeds - is a podcast I do with Matt Kelly where we take a deep dive into the weeds of a compliance issue, typically technology, internal controls or GRC. We both indulge our inner geekiness in this podcast. Jay Rosen and I wrap up each week in FCPA, compliance and ethics with This Week in FCPA. All of these podcasts are available to you on my site, FCPAcompliancereport.com, and are available on iTunes under the same name. Learn more about your ad choices. Visit megaphone.fm/adchoices

Show Notes for Episode 1 At the SCCE 2016 Compliance and Ethics Institute, I sat down with four of the top compliance commentators in the field for my first roundtable-style podcast. It was so successful that I persuaded the gang to come back together every couple of weeks for a formal podcast, which is entitled Everything Compliance. The premier episode is available for your listening pleasure today. I will post a new episode every two weeks. I host these four well-known compliance practitioners and commentators: Jay Rosen (Mr. Translations) - Jay is Vice President of Legal & Corporate Language Solutions at United Language Group. Rosen can be reached at rosen@ulgroup.com. Mike Volkov - One of the top FCPA commentators and practitioners around and is the Chief Executive Officer (CEO) and owner of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com. Matt Kelly - Founder and CEO of Radical Compliance, is the former Editor of the noted Compliance Week Kelly can be reached at mkelly@radicalcompliance.com Jonathan Armstrong - Rounding out is our UK colleague, who is an experienced lawyer with Cordery Compliance Limited in London. Armstrong can be reached at armstrong@corderycompliance.com. The format is a roundtable discussion where I throw out a question to one commentator to lead the discussion. From that starting point we will all join in. I also include an “On My Mind” segment where each participant discusses what is on the forefront of their mind. This podcast is longer than my others, coming in at around 60 minutes, which allows us to explore the week’s issues in depth. In the inaugural episode we discuss the following subjects: Mike Volkov leads a discussion of the unintended consequences of the Yates Memo/Pilot Program for internal investigations. We explore the issue of “de-confliction” where the government asks a company to halt its own internal investigation for the government to be the first to interview witnesses. We explore de-confliction in the context of a requirement of cooperation to gain the benefits of the pilot program and how such a request from the Department of Justice (DOJ) could lead companies to be unable to disclose to other agencies or to shareholders and keep a Board in the dark about the alleged wrongdoing. What does this mean for the company and the internal investigator? For Volkov’s post on conflicts of interest (COI) in internal investigations after the Yates Memo, click here. Matt Kelly leads a discussion on compliance and corporate governance. We explore the issue of compliance being involved in issues around pricing and sales in companies like Valeant and Wells Fargo. We discuss the role of compliance in areas outside of strict legal compliance but may move towards reputational risk, going into such areas as the new revenue recognition standards and executive compensation. For Kelly’s blog post on the intersection of CEO pay and Chief Compliance Officers (CCOs), click here. Jonathan Armstrong leads a discussion of funding and the UK Serious Fraud Office (SFO), in the context of the recent announcement that the SFO has received additional or supplemental funding to investigate Unaoil. Why does the SFO need supplemental funding and how does it obtain it? What does all of this mean for the continued existence of the SFO in light of a former critic now being PM? Finally, Armstrong ties all of this into Brexit, his recent interview of Max Schrems and issues surrounding Privacy Shield. For Armstrong’s interview with Max Schrems, click here and Cordery’s FAQs on Privacy Shield, click here. Jay Rosen takes us through the compliance conference scene. For those of you who are avid attenders of the various conferences, he discusses some of the key differences in the types observed, such as the nuts and bolts types (SCCE) and others which focus more on commentary (FCPA Blog NYC Conference). He discusses the relative strengths of each and how a compliance professional should think about selecting one or more to attend. He ends with his thoughts on why compliance certification is a plus (or minus). For Rosen’s blog post Designing Your 2017 Ethics, Compliance & FCPA Conference Schedule, click here. This new podcast Everything Compliance joins the four other podcasts I have on different aspects of compliance. The original FCPA Compliance and Ethics Report focuses on the nuts and bolts of compliance. Unfair and Unbalanced - is a podcast I do with SCCE CEO Roy Snell. In it we focus on wide ranging issues for the compliance profession. Compliance into the Weeds - is a podcast I do with Matt Kelly where we take a deep dive into the weeds of a compliance issue, typically technology, internal controls or GRC. We both indulge our inner geekiness in this podcast. Jay Rosen and I wrap up each week in FCPA, compliance and ethics with This Week in FCPA. All of these podcasts are available to you on my site, FCPAcompliancereport.com, and are available on iTunes under the same name. Learn more about your ad choices. Visit megaphone.fm/adchoices

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories. Federal Judge Disqualifies SCIF Attorneys in Drobot RICO Case. Obamacare Insurers Forced to File Litigation for "Risk-Corridor" Funds. Feds Lose First "Yates Memo" Criminal Trial Against Drugmaker President. Unlicensed Insurance Broker Arrested for Selling Fake Policies. Berkshire Hathaway Comp Insurers Face Cease and Desist Order. DWC Posts Adjustments to OMFS/DMEPOS Fees. California Voters to Decide on "Recreational" Use of Marijuana. WCIRB Submits January 1, 2017 Regulatory Filing. Employers Fear Proposed Anthem-Cigna Merger. 3D Printer Used to Create Replacement Joint Cartilage.

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories. Court of Appeal Guts Massive Orange County Compound Medication Fraud Case. DOJ "Yates Memo" Increases Individual Risk in Corporate Healthcare Crime. Aetna Subsidiary Says Organized Medical Fraud is Growing World Wide. CSLB SWIFT Team Finds Unlicensed Contractors Thriving Online. Study Says Phone and Email Orthopedic Care Effective in Rural Areas. Researchers Find Better Knee Replacement Outcomes at High Volume Hospitals. FDA Approves Exoskeleton for Paraplegics. CDC, DWC and Others Develop New Opioid Treatment Guidelines. DWC Announces Appointments to Ethics Advisory Committee. LA Rams Ignite Workers' Compensation Firestorm With New Player Contract.