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This Week in FCPA

Episode 213 – the Second Edition edition


The DOJ/SEC drop the 2nd edition to the FCPA Resource Guide at 5 PM on July 2. As Tom and Jay brave the surge in covid cases to stay safe they are back to look at top compliance articles and stories which caught their eye this week.

  1.  FCPA Resource Guide, 2nd edition released. Tom takes a deep dive in a 5-part blog post series on the FCPA Complinace and Ethics Blog. Part 1-The New Hallmark, Part 2-FCPA Corporate Enforcement Policy, Part 3– the Accounting Provisions, Part 4– Policy and Case Law Updates, Part 5-What does it all mean? Jonathan Marks on Borad and Fraud. Tom and Matt Kelly in Compliance into the Weeds.
  2. After its FCPA settlement, Novatris pays another $678MM for corruption inside the US. Mike Volkov in Corruption Crime and Compliance.
  3. A plan to restore trust in South Africa ABC enforcement. Larry Kirsch guest posts in GAB.
  4. A reassessment of due diligence in China? Jenny Liang opines in the FCPA Blog.
  5. Venezuela can’t get its gold out of England. Jon Rausch in Dipping Through Geometries.
  6. Amazon settles OFAC sanctions enforcement action. Mengqui Sun in the WSJ Risk and Compliance Journal.
  7. How can you make a risk management committee effective? Jim DeLoach shows the way in CCI.
  8. Is Deutsche Bank the world’s most corrupt? Matt Kelly digs in on Radical Compliance.
  9. Going from disaster recovery to business continuity? Carrie Penman in Ethics and Compliance Matters.
  10. On Compliance and Coronavirus, I was joined this week by Paul Mueller on how to reset, restart and accelerate your business in the era of Coronavirus; Ian Denis on employment and communication during Covid-19 and Breeda Miller on caregiving in the era of Covid-19.
  11. On the Compliance Podcast Network, Tom started the topic of 3rd party risk management this month.This week saw the following offerings: Monday-Questionniare; Tuesday-Due Diligence,Wednesday-levels of DD; Thursday-evaluating DD and clearing red flags; and Friday-compliance terms and conditions. The month of July is being sponsored by Affiliated Monitors. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel. If you want to binge out and listen to only these episodes, click here.
  12. Great Upcoming Webinars:

Navigating the Risks of Prescribing Opioids for Chronic Pain in the COVID-19 Era, Jul 22, 2020 12:00 PM in Eastern Time (US and Canada); with Jesse Caplan, Deb Waugh and Amy Fogelman, M.D. Registration and Inforamtion here.
Computer Say ‘No’: Mitigating Legal & Ethical Risks in Public Agency Use of Automated Decision-Making Tools, Jul 28, 2020 12:00 PM in Eastern Time (US and Canada); with David Shonka, Mikhail Reider-Gordon and Jonathan Redgrave. Registration and Information here.
ECI’s Best Practice Forum, a Q&A Session with Brian Rabbitt, Acting Assistant Attorney General for the Criminal Division on the FCPA Resource Guide, 2nd edition, Thursday, July 30 2:00 – 4:00 p.m. EDT. Registration and Information here.
Tom Fox is the Compliance Evangelist and can be reached at tfox@tfoxlaw.com. Jay Rosen is Mr. Monitor and can be reached at jrosen@affiliatedmonitors.com.

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Compliance and Coronavirus

Ian Denis on Communicating During the Age of Covid-19

Welcome to the newest addition to the Compliance Podcast Network, Compliance and Coronavirus. In this episode, I visit with Ian Denis, a college senior at the University of Vermont. He talks about the summer job he has because of Covid-19 and his use of video in a nationwide sales campaign, his sales strategy and his training. It has many implications for the compliance professional in their ongoing communications with employees who are working remotely. Ian is also a huge hockey fan and we end the episode with some of this thoughts about the current state of the NHL in the age of Coronavirus and what it means for the completion of the 2020 season and into the future.

For more information on the products that Ian is selling this summer check out the CutCo website here.

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12 O’Clock High-a podcast on business leadership

Paul Mueller on Business Success Through Organizational Health


Richard Lummis is on assignment this week so I am pleased to host Paul Mueller, who coaches on leadership. Mueller, a certified business coach, is the owner of Excel Business Coaching and Consulting, Inc, a Focal Point franchise. Paul’s passion is working with business owners to align their organizations around clear vision, mission, and value statements. These statements pave the way for them to achieve their goals for their businesses, families, employees, and communities. Some of the topics we discuss are Focal Point-Coaching and Training Excellence; the attributes of a broken culture and how Paul sees it sees it in a hierarchy. In an organization, what is the catalyst for change and what is the organizational model for change? Finally, what does the model of a healthy organization look like?
Resources 
Paul Mueller LinkedIn Page here
Paul Mueller website here

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Compliance and Coronavirus

Breeda Miller on Caregiving In the Age of Covid-19

Welcome to the newest addition to the Compliance Podcast Network, Compliance and Coronavirus. In this episode, I visit with Breeda Miller about Caregiving in times of CoVid19. Breeda has personal experience in caregiving and we discuss some of the unique challenges for caregivers during this phase of Covid-19. These challenges include isolation and separation, lack of respite, the fear and frustration many caregivers are currently feeling and the mindset you need to help get you through these times, including finding humor and resources for support.

For more information on Breeda Miller, check out her website here.

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Daily Compliance News

July 9, 2020-the Kiss Off edition


In today’s edition of Daily Compliance News:

  • Facebook tells civil rights groups to kiss off. (NYT)
  • BooHoo in big trouble. (NYT)
  • Did Wirecard facilitate fraud in US? (WSJ)
  • How are FinTech companies audited? (WSJ)
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The Affiliated Monitors Expert Podcast

Eric Feldman on the Why’s, What’s and How’s of a M&A Compliance Assessment


In this episode I visit with Eric Feldman on the why’s, what’s and how’s of an independent assessment of a target. Feldman began with the observation that most of the issues in the M&A context come from the target or acquired company and most usually from the acquiring entity simply not paying enough attention during the pre-acquisition phase and making a discovery post-closing. This one of the reasons the Department of Justice (DOJ) has put such important stock in the pre-acquisition phase where a company needs to perform compliance due diligence and a risk assessment which will inform the entire process.
Near and dear to my mantra of Document, Document, and Document, was Feldman’s thoughts on keeping a thorough record of your entire process. Not only should the target (or at least you would hope) have a documented process of all of the above issues, but you should be sure to document your entire pre-acquisition process as well. This could be important if you discover any nefarious conduct in the pre-acquisition phase which you should report to the DOJ or if such discovery occurs after closing. If it happens after closing you will need to be able to document the reasonable steps you took in pre-closing and how you will remediate the issue(s) going forward.
Finally, your pre-acquisition investigation and due diligence will inform your post-acquisition steps. Hallmark 10 of the Ten Hallmarks of an Effective Compliance Program mandates that companies will develop and implement policies and procedures for mergers and acquisitions requiring the company to conduct appropriate risk based due diligence on potential new business entities including Foreign Corrupt Practices Act (FCPA) and anti-corruption due diligence. Obviously, this should be a documented process. By having an independent third party do this, with a documented process, it can lower the risk if there is a problem. As problems are identified, the acquiring entity can decide whether to go forward with the M&A. If there is a very specific identification of misconduct, the company can make a disclosure to the DOJ. By using this process, there is a road map created for remediating the issue as a part of your post-acquisition steps after closing.

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31 Days to More Effective Compliance Programs

Levels of due diligence


Due diligence is generally recognized in three levels, each of which is appropriate for a different level of corruption risk. The key is for you to develop a mechanism to determine the appropriate level of due diligence and then implement that going forward.
There are many different approaches to the specifics of due diligence. By laying out some of the approaches, you can craft the relevant portions into your program. The Level I, II and III trichotomy appears to have the greatest favor and one that you should be able to implement in a straightforward manner. But the key is that you must assess your company’s risk and then manage that risk. If you need to perform additional due diligence to answer questions or clear red flags you should do so. And do not forget to “Document, Document, and Document” all your due diligence.
Three key takeaways:

  1. A Level I due diligence should only be used where there is a low risk of corruption.
  2. A Level II due diligence is sufficient in a high-risk jurisdiction if there are no red flags to clear.
  3. Level III due diligence is deep dive, boots on the ground investigation.
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Daily Compliance News

July 8, 2020-the Corruption edition


In today’s edition of Daily Compliance News:

  • London PR firm paid to influence US opinion on Jho Low. (The Guardian)
  • Sons of a former Panamanian president charged with bribery involving Odebrecht. (WSJ)
  • World’s most corrupt bank? (WaPo)
  • How corrupt is Trump Administration? They don’t even want ethical investing. (Houston Chronicle)
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Great Women in Compliance

Episode 67 – Asha Palmer-Black Girl Magic


Welcome to the Great Women in Compliance Podcast, co-hosted by Lisa Fine and Mary Shirley.
Lisa and Mary are always very pleased to get recommendations for guests to speak on the podcast. It is however rare to get multiple suggestions for the same person, but Asha Palmer is so renowned that she did! This episode starts off by telling the story of Asha’s overseas working experience teaching ethics at university in the Middle East.
An expert at creating and evaluating risk assessments and program assessments, we turn technical in this episode as Asha outlines for the audience the difference between the two types of reviews and common mistakes companies make when executing those initiatives.
Asha has invested a great deal of time and thought into changing culture and conduct. We benefit from that effort by asking her about her change management tips for the Compliance Officer who has established themselves as a legitimate business partner, but is still working on shaping the culture and tone of the company, which as is we know is a little harder to control
Asha is a class act and exudes excellence in everything – hence the title of this episode, we hope you enjoy it!

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Compliance Into the Weeds

FCPA Resource Guide, 2nd edition

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 Tom Fox take a look the recently released FCPA Resource Guide, 2nd edition; released jointly last week by the Department of Justice and Securities and Exchange Commission.
Resources
From Tom, check out his five part blog post series on the new FCPA Resource Guide on the FCPA Compliance and Ethics Blog.
For a copy of the FCPA Resource Guide, 2nd edition, click here.