Categories
31 Days to More Effective Compliance Programs

Who and When to suspend during an investigation?


Who to suspend during any FCPA investigation is always a delicate question to answer and is never easy to answer. As the VW emission-testing scandal reverberated, it brought up some very knotty questions, which have continued bedeviled many a CCO or compliance practitioner in multiple areas. De-confliction is also an issue which continues to bedevil investigators and internal investigations. Mara Senn has said “That is a very case-by-case difficult question to answer, but in general, I think it’s better to keep them around for as long as you may need them. Once they’ve been fired or otherwise disciplined, really, even if you keep them around, they’re going to be less cooperative with you and possibly, if you fire them, not cooperative at all. You can require them to be cooperative in the termination agreement, but obviously in practice, cooperation can mean a lot of different things.”
De-confliction, involves the government asking a company to halt its own investigation for the government to be the first to interview witnesses. Former DAG Lanny Breuer posed four questions which every investigator must consider in the area of de-confliction. (1) Would complying with the request be consistent with directors’ and corporate officers’ fiduciary duty of oversight? (2) How can a company make decisions without speaking with its employees? (3) How will a delay affect the company’s other regulatory obligations? and (4) How can external counsel advise a company without knowing the facts? Companies hire external counsel to conduct thorough investigations, evaluate their clients’ conduct, and provide informed legal advice. These tasks can be difficult if not impossible to accomplish where external counsel have their hands tied behind their backs.
Three key takeaways:

  1. The decision on whom to discipline and when are critical decisions during any investigation.
  2. You should take a case-by-case approach.
  3. The “de-confliction” question can be quite troubling during an internal investigation.
Categories
This Week in FCPA

Episode 210 – the Bostock edition


As Trump has trouble drinking a glass of water and walking (Note-not at the same time), Covid-19 cases spike, the US Supreme Court hands down a landmark decision on protections for the LGBTQ community in the workplace, self-distancing Tom and Jay are back to consider some of the top compliance articles and stories over the past week.

  1.  Mike Volkov takes the chickens out to roost in a 3-part series on the DOJ Antitrust Division charges of price-fixing and bid-rigging conspiracy. In Corruption Crime & Compliance. Jon Rausch weighs in on Dipping Through Geometries.
  2. How will WFH change business? Alison Taylor opines on the World Economic Forum
  3. What are the three ‘R’s’ of a speak up culture? Lloydette Bai-Marrow on the FCPA Blog.
  4. GOP stymies data privacy/data protection legislation yet again. Dave Uberti reports in the WSJ.
  5. It’s your culture stupid. Jim Nortz in CCI.
  6. How is Covid-19 changing internal audit. Matt Kelly explores in Radical Compliance.
  7. Viva La France. Dylan Tokar reports in the WSK Risk and Compliance Journal.
  8. Making sure compliance is not marginalized during financial dislocation. A plethora of authors contribute on NYU’s Compliance and Enforcement Blog.
  9. The ethical upside to WFH. In the Center for Ethical Leadership
  10. 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 Part 3, he details some of key skills of a CCO. The Compliance Life is now available on iTunes.
  11. On Compliance and Coronavirus this week,: Scott Price on cyber security risks going forward; Gabe Gumbs data privacy and data protection during the economic dislocation and Covid-19; David McLaughlin joins me to discuss increasing automation to enhance compliance. Compliance and Coronavirus is available on iTunes here.
  12. On the Compliance Podcast Network, this month topic: internal reporting and investigations; all on 31 Days to a More Effective Compliance Program. This week’s offerings: Monday-The Investigative Team; Tuesday-investigative challenges; Wednesday-the witness interview; Thursday– issues in cross-border investigations; Friday– who and when to suspend. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel.
  13. How does the Hundred Acre Wood inform compliance? Check out Tom’s 5-part blog post series on the FCPA Compliance and Ethics Blog. Monday-Tigger and Sales; Tuesday-Kanga, Roo & Ombudsman; Wednesday-Eeyore and corp legal; Thursday-Piglet and Finance; Friday-Winnie the Pooh as CECO.

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.

Categories
Daily Compliance News

June 19, 2020-the DACA edition


In today’s edition of Daily Compliance News:

  • Trump’s illegal attempt to end DACA blocked by SCt. (WSJ)
  • Trump re-election campaign uses Nazi symbols, FB removes ads. (NYT)
  • Ca mandates masks. (WaPo)
  • Head of UK competition regulator to step down. (WSJ)