In today’s edition of Daily Compliance News:
In this episode, I visit with Jay Rosen, VP of Business Development for Affiliated Monitors, Inc. (AMI). Corporate culture exists in the space between what an organization professes and what it does. In this series Jay and I will be exploring key aspects of corporate culture, including why it matters, what influences culture, the CCOs role in culture, assessing corporate culture and how to use that information to improve culture. In this episode, we consider how an ethical culture is a part of an overall ethics and compliance assessment.
Highlights include:
- Begin with framework for such an assessment, usually the compliance program itself.
- Is your training both focused and effective?
- Is there institutional fairness in your promotion and compensation programs?
- Is there institutional justice around reporting, discipline and investigations?
- Is your compliance program a paper program or is it fully operationalized?
- Is there accountability in your organization?
For more information see Jay’s blog post How is ethical culture a part of an overall ethics and compliance assessment? on Corporate Compliance Insights.
For more information on Affiliated Monitors, Inc. check out their website here.
Your company has just made its largest acquisition ever and your CEO says they want you to have a compliance post-acquisition integration plan on their desk in one week. Where do you begin? A good place to start would be the 2020 FCPA Resource Guide language:
Pre-acquisition due diligence, however, is normally only a portion of the compliance process for mergers and acquisitions. DOJ and SEC evaluate whether the acquiring company promptly incorporated the acquired company into all of its internal controls, including its compliance program. Companies should consider training new employees, reevaluating third parties under company standards, and, where appropriate, conducting audits on new business units.
The bottom line is that you must train the newly acquired employees, reevaluate third parties under your company standards, and conduct compliance audits on new business units. This process should be based your pre-acquisition due diligence and risk assessment. Moreover, the DOJ and SEC clearly view both the pre- and post-acquisition phases of M&A as tied together in a unidimensional continuum. If pre-acquisition due diligence is not possible, you should review the requirements and time frames laid out in Opinion Release 08-02 or the 2020 FCPA Resource Guide, which noted, “pursuant to which companies can nevertheless be rewarded if they choose to conduct thorough post-acquisition FCPA due diligence.” Whatever compendium of steps you utilize for post-acquisition integration, they should be taken as soon as is practicable.
The earlier you can deploy these steps the better off your company will be at the end of the day. An acquisition that fails for compliance reasons is a preventable disaster of the first order. One need only consider the Latin Node Inc. FCPA enforcement actions where the acquiring company had to write off its entire investment because it had wholly failed to engage in appropriate pre-acquisition due diligence.
Three key takeaways:
- Planning is critical in the post-acquisition phase.
- Build upon what you learned in pre-acquisition due diligence.
- You literally need to be ready to hit the ground running when a transaction closes.
Welcome to this special podcast series, Integrity Matters: Assessing the Corporate Compliance Climate in 2021, sponsored by K2 Integrity. This week I visit with Bob Brenner, Co-Managing Partner and Chief Legal Officer; Snežana Gebauer, Executive Managing Director and head of U.S. Investigations and Risk Advisory, Americas. Over the week, we will consider various regulatory and enforcement issues with the incoming Biden Administration. Topics include assessing the regulatory landscape resulting from the pandemic, what companies can expect from new administration priorities, anti-bribery/anti-corruption issues and enforcement in 2021. In this concluding Part 5, I am joined by Snežana Gebauer to consider a few key themes and how a company can prepare for what is coming down the road into 2021 and beyond.
For more information go to the K2 Integrity website.
As Trump becomes the only person to have 2 impeachment trials, Tom and Jay are back to look at some of the top compliance articles and stories which caught their eye this week.
- Beny Steinmetz found guilty for corruption in Guinea mining concession. Imogen Foulkes in the com. Tom take a deep dive on the FCPA Compliance and Ethics Blog. Part 1-Background, Part 2-the Trial, Part 3-the Vale JV, Part 4-Final Thoughts.
- Do compliance officers need a peer review? Dick Cassin explores in the FCPA Blog.
- Should you have reps and warranties in your compliance terms and conditions? Bill Steinman considers in the FCPA Blog.
- 7 key changes to CA privacy laws. Andrew Burt in Navex Global’s Risk and Compliance Matters.
- A Significant ruling on HIPPA out of the 5th David Saunders and Allison Glover in NYU’s Compliance and Enforcement.
- Is an increase in SEC enforcement coming? Morgan Lewis lawyers in Harvard Law School Forum on Corporate Goverance.
- Why is FCA compliance so critical? Mike Debernardis in CCI.
- How to investigate a 60MM document case? Michael Dempsey in the BBC.
- On The Compliance Life, Gwen Hassan- Director of Compliance at CNH Industrial is back for her fourth and final episode. In it, Gwen explains her passion around fighting the international scrourge of human trafficking. Check out the episode here.
- This month, on 31 Days to a More Effective Compliance Program, I look back over 2020 and set out some of the key enhancements you need to do for your compliance program in 2021. Day 23 | Assessing compliance internal controls; Day 24 | Updates and feedback; Day 25 | CCO authority and independence; Day 26 | the role of compliance in an organization; Day 27 | operationalizing compliance though payroll; Day 28 | Continuous Improvement; Day 29 | Internal Reporting. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel.
- A new AMI podcast is out, Integrity Through Compliance. It will have AMI’s expert observations and guidance in the fields of ethics, antitrust, healthcare, government contracting, corporate governance, cybersecurity, construction, telecommunications, consumer protection and more.In this first episode, AMI founder Vin DiCianni visits with AMI MD Jerry Coyne the future of telehealth & home healthcare during a pandemic and beyond. Check it out here.
- Join K2 Integrity and the AIBACP for a webinar on February 17—National Defense Authorization Act: AML Compliance Implications and Priorities for the Banking Industry. Information and Registration here.
- Compliance Week is accepting nominations for its Excellence in Compliance Award. Submit your nominee here.
- Join the Baker Tilly Fraud 1st Annual Fraud and Compliance Summit, Tuesday, Feb 23, 2021, to Thursday, Feb 25, 2021. Details and registration 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.
A company that does not perform adequate due diligence prior to a merger or acquisition may face both legal and business risks. Perhaps most commonly, inadequate due diligence can allow a course of bribery to continue – with all the attendant harms to a business’s profitability and reputation, as well as potential civil and criminal liability. While most compliance practitioners have been long aware of the requirement in the post-acquisition context, the 2012 FCPA Guidance focused many compliance practitioners of the need to engage in robust pre-acquisition due diligence.
The 2020 Update made even more clear the need for a robust compliance presence in the pre-acquisition phase. It stated, “A well-designed compliance program should include comprehensive due diligence of any acquisition targets, as well as a process for timely and orderly integration of the acquired entity into existing compliance program structures and internal controls. Pre-M&A due diligence, where possible, enables the acquiring company to evaluate more accurately each target’s value and negotiate for the costs of any corruption or misconduct to be borne by the target. Flawed or incomplete pre- or post-acquisition due diligence and integration can allow misconduct to continue at the target company, causing resulting harm to a business’s profitability and reputation and risking civil and criminal liability.”
There are multiple red flags which could be raised in this process, which might well warrant further investigation. They include if the target has ineffective compliance program elements in their compliance program or if there were frequent breach of policies and procedures. Obviously, a target which is in financial difficulty would bear closer scrutiny. Structurally, if the company did not have a formal ethics and compliance committee at the senior management or Board of Directors’ level, this could present issues. From the CCO perspective, if the position did not have Board or CEO access or if there were not regular reports to the Board, it could present an issue for compliance. Conversely, if there were frequent requests to waive policies, management over-ride of compliance controls or no consistent consequence management for violations; it could present clear red flags for further investigation.
Three key takeaways:
- The results of your pre-acquisition due diligence will inform your post-acquisition integration and remediation going forward.
- Periodically review your M&A due diligence protocol.
- If red flags appear in pre-acquisition due diligence, they should be cleared.
Welcome to this special podcast series, Integrity Matters: Assessing the Corporate Compliance Climate in 2021, sponsored by K2 Integrity. This week I visit with Bob Brenner, Co-Managing Partner and Chief Legal Officer; Snežana Gebauer, Executive Managing Director and head of U.S. Investigations and Risk Advisory, Americas. Over the week, we will consider various regulatory and enforcement issues with the incoming Biden Administration. Topics include assessing the regulatory landscape resulting from the pandemic, what companies can expect from new administration priorities, anti-bribery/anti-corruption issues and enforcement in 2021. In this Part 4, I am joined by Bob Brenner and we consider what companies can expect from the global trends impacting risk and compliance in 2021.
Join us tomorrow as we conclude our five-part series by considering how your company can prepare for what is next.
For more information go to the K2 Integrity website.
Sam Eastwood is a litigation partner at Mayer Brown’s Litigation Practice in London and a member of the firm’s White Collar Defense & Compliance practice. He joins Vince Walden on this week’s episode to discuss the risks and trends related to global compliance and data analytics.
Sam expresses that companies need to disclose more about their compliance programs operations. Transparency into the data analytics itself is a good way to conduct audits, he adds. Data protection and the way data is collected, processed, and transferred is getting more challenging. As such, Sam stresses that the fraud detection process is in need of an upgrade.
Corruption is a human rights issue. It is important for clients within the compliance field to have an effective human rights compliance program. As things progress, Sam states that human rights due diligence laws are soon to be passed. When these laws are eventually introduced, companies will be expected to conduct human rights due diligence on the impact of their business activities. Monitoring legislative developments and carrying out human rights assessments are two of the ways Sam says that companies can do this.
Resources
Sam Eastwood | LinkedIn