Day: June 26, 2020

Episode 211 – the Missing $2bn edition

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Post date June 26, 2020
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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 3^rd 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.

Tags FCPA

31 Days to More Effective Compliance Programs

How the Yates Memo changed internal investigations

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Post date June 26, 2020
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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.

Tags internal investigations, Yates Memo

Creativity and Compliance

Speak Up and Communication

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Post date June 26, 2020
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Where does creativity fit into compliance? In more places than you think. Problem-solving, accountability, communication, and connection – they all take creativity. Join Tom Fox and Ronnie Feldman on Creativity and Compliance, part of the Compliance Podcast Network. In this show, we discuss how to use your communications to drive a speak up culture.
Some of the highlights include:

What is a Speak Up Culture?
- Define it as creating a social environment where employees feel comfortable speaking up to ask questions and report concerns and they know the options for doing that.

Why is it so difficult to achieve?
- Intertwine it with training – which means its infrequent
- It’s usually boring and not particularly creative – dull posters
- They make it “inspirational” which often comes off as preachy or inauthentic
- Or perhaps they do a campaign but that campaign is once a year for a few weeks or worse, every other year.
- This is largely ineffective

We’ve all heard the excuses.
- Grew up with – It’s not cool to tattle. Don’t be a snitch
- Nothing will happen anyway
- Someone else will probably take care of it
- I don’t want to get anyone in trouble
- I’m a no drama llama
- THEREFORE – you have to actually reverse this kind of thinking, which takes time.

How can you establish trust?
- Comms are more important than training – continually promote and do so creatively so people pay attention and remember.
- Transparency – share what happens – in aggregate. Tell stories.
- Share the mechanics of the process
- Make personal connections – you and your team need face time
- Listen Up Culture – provide skills and resources for management – we do improv training to support that
Can you do this in the new WFH environment?
- Sure. Comms are even more important.
  - Commercials during zoom meetings
  - Stories – discussion groups
  - Talk Shows & Podcasts – to get your face out there, answering questions.

Resources:
Ronnie Feldman (LinkedIn)
Learnings & Entertainments (LinkedIn)
Ronnie Feldman (Twitter)
Learnings & Entertainments (Website)
60-Second Communication & Awareness Shorts – A variety of short, customizable, quick-hitter “commercials” including songs & jingles, video shorts, newsletter graphics & Gifs, and more. Promote integrity, compliance, the Code, the helpline and the E&C team as helpful advisors and coaches.
Workplace Tonight Show! Micro-learning – a library of 1-10-minute trainings and communications wrapped in the style of a late-night variety show, that explains corporate risk topics and why employees should care.
Custom Live & Digital Programing – We’ll develop programming that fits your culture and balances the seriousness of the subject matter with a more engaging delivery.