EMBARGOED! kicks off 2021 with somber reflections on the riot at the U.S. Capitol before pivoting to (what else?) China to consider the new E.O. targeting AliPay, WeChat Pay, and other Chinese apps, the official arrival of BIS’s MEU List, and the latest guidance from OFAC relating to securities investments in Chinese Military Companies. After that, Brian and Tim check in on the latest developments in a rare North Korea sanctions prosecution in SDNY and then wrap up, in the Lightning Round, by briefly covering a successful court challenge to the ICC-related sanctions program and the passage of expanded Nord Stream 2 sanctions.
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EMBARGOED! is not intended and cannot be relied on as legal advice; the content only reflects the thoughts and opinions of its hosts.
EMBARGOED! is intelligent talk about sanctions, export controls, and all things international trade for trade nerds and normal human beings alike, hosted by Miller & Chevalier Members Brian Fleming and Tim O’Toole. Each episode will feature deep thoughts and hot takes about the latest headline-grabbing developments in this area of the law, as well as some below-the-radar items to keep an eye on. Subscribe for new bi-weekly episodes so you don’t miss out!
Timestamps:
0:10 Introduction and Roadmap
4:30 Some Brief Reflections on Treason, Sedition, and Insurrection by POTUS
The Rundown
16:54 New E.O. re: AliPay and Other Chinese Apps
28:47 The Military End User List
39:00 Latest Guidance on CCMC E.O.
51:10 Prosecution of Crypto Bro in SDNY
59:52 Lightning Round
1:00:18 PI in ICC Litigation in SDNY
1:05:57 Expanded Nord Stream 2 Sanctions
1:12:40 Final Thoughts
***Stay sanctions free.***
After you complete your risk assessment, you must then translate it into a risk profile. If your estimate of where your bribery risk is greatest is wrong, it will be an effort to address it. As Ben Locwin explained in his BioProcess International article, entitled “Quality Risk Assessment and Management Strategies for Biopharmaceutical Companies”:
Once we have assessed risks and determined a process that includes options to resolve and manage those risks whenever appropriate, then we can decide the level of resources with which to prioritize them. There always will be latent risks: those that we understand are there but that we cannot chase forever. But we need to make sure we have classified them correctly. With a good understanding of each of these, we are in a better position to speak about the quality of our businesses.
William C. Athanas, in his Industry Week article, “Rethinking FCPA Compliance Strategies in a New Era of Enforcement”, posited that companies assume that FCPA violations follow a bell curve in which most employees are responsible for most of the violations. However, Athanas believed that the distribution pattern more closely follows a hockey-stick distribution, where virtually all violations are committed by just a few people. Athanas concluded by noting that is this limited group of employees, or what he terms the “shaft of the hockey-stick,” to which a company should devote the majority of its compliance resources. With a proper risk assessment, a company can then focus its compliance efforts such as intensive training sessions or detailed analysis of key financial transactions involving those employees with the greatest means and motive to commit a violation.
The most significant risks with the greatest likelihood of occurring are deemed to be the priority risks. These become the focus of your most significant risk management efforts, couple with audit and monitoring going forward. A variety of tools can be used to continuously monitoring risk going forward. Consider providing employees with substantive training to guard against the most significant risks coming to pass and to keep the key messages fresh and top of mind. It is important to create a risk control summary that succinctly documents the nature of the risk and the actions taken to mitigate it. Finally, let this risk assessment and evaluation inform your compliance program, rather than letting the compliance program inform the risk assessment.
Three key takeaways:
- Even after you complete your risk assessment, you must evaluate those risks for your company.
- The DOJ and SEC are looking for a well-reasoned approach on how you evaluate your risk.
- Create a risk matrix and rank your risks; then remediate and monitor as appropriate.
Tom and Nick Gallo discuss The Infinite Game by Simon Sinek. The author emphasizes that the game of business is not a short game but a long one, and leaders need to play the long game in order to be successful. Nick comments that making sure that your company is working together for the betterment of your employees – not just for profit – is crucial, and a vital part of playing the long game. Tom mentions Jeff Bezos as an example of a business leader who plays the long game.
Simon Sinek is an author, and inspirational speaker. He explores how leaders can inspire cooperation, trust and change.
Listeners can read Nick’s notes on each book at his LinkedIn page.
Resources
Tom Fox on LinkedIn | Twitter
CompliancePodcastNetwork.net
Nick Gallo on LinkedIn
ComplianceLine.com
The Infinite Game by Simon Sinek
It is certainly a challenging time for the American Democarcy. For his high crimes and misdemeanors against the Constituion and American democary, President Trump has now been impeached for a second time. In the midst of the this, Tom and Jay are back to look at some of the top compliance articles and stories which caught their eye this week.
- Recidivist Deutsche Bank settles a second FCPA matter. Tom takes a 5-part deep dive on the FCPA Compliance and Ethics Blog. Matt Kelly looks at red flags and internal controls on Radical Compliance. Tom and Matt take a deep dive on Compliance into the Weeds.
- How the FCPA is big business. Harry Cassin explains in the FCPA Blog.
- Is an industry sweep headed your way? Dick Cassin explains in the FCPA Blog.
- Why you should welcome the NDAA? Matthew Stephenson in GAB. Jonathan Marks on Board and Fraud.
- How to use KPIs in your compliance program. Vera Cherapanova in the FCPA Blog.
- What are your Board resolutions for 2021? Steve Durbin in CCI.
- 2020 was a year of ethical challenges. Mike Volkov explains in Corruption Crime and Compliance.
- What are the C-Suite challenges brought on by Coivd-19? Shanil Williams in CCI.
- A new month is here and a new guest on The Compliance Life. Gwen Hassan- Director of Compliance at CNH Industrial. In this month’s second episode, In this second episode, we take up the tricky issue of balancing a role as a legal eagle for the company as well as her role in compliance. We also explore the different skill set needed for each of these careers and how it is possible to have both in one person. 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 9 | 360 Degrees of Compliance Communications; Day 10 | The Use of Social Media in Compliance; Day 11 | What is Effective Compliance Training?; Day 12 | Financial Incentives for Compliance; Day 13 | Institutional Justice and Fairness; Day 14 | Risk Assessments; and Day 15 | How do you evaluate a risk assessment?. Note 31 Days to a More Effective Compliance Program now has its own iTunes channel.
- Join Tom on the Convercent event, “Future-proof your compliance program for 2021”, on Wednesday, January 20th | 11:00 am -1:00 pm ET. For details and registration, click here.
- Join K2 Integrity on January 27 to hear Olivia Allison and Joanne Taylor discuss the latest E
U regulatory developments in whistleblowing programs and investigations. Information and Registration here. - Compliance Week is accepting nominations for its Excellence in Compliance Award. Submit your nominee 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.
One cannot really say enough about risk assessments in the context of anti-corruption programs. This is because every corporate compliance program should be based upon a risk assessment, to understand your organization’s business from the commercial perspective, how your organization has identified, assessed, and defined its risk profile and, finally, the degree to which the program devotes appropriate scrutiny and resources to this range of risks. Yet the 2020 Update added a new emphasis that Risk Assessments should not be done not less than annually.
As far back as 1999, in the Metcalf & Eddy enforcement action, the DOJ has said that risk assessments that measure the likelihood and severity of possible FCPA violations should direct your resources to manage these risks. The 2012 FCPA Guidance stated it succinctly when it said, “Assessment of risk is fundamental to developing a strong compliance program and is another factor DOJ and SEC evaluate when assessing a company’s compliance program.”
There are a number of ways you can slice and dice your basic inquiry. As with almost all FCPA compliance, it is important that your protocol be well thought out. If you use one, some or all of the above as your basic inquiries for your risk analysis, it should be acceptable for your starting point.
Three key takeaways:
- Since at least 1999, the DOJ has pointed to the risk assessment as the start of an effective compliance program.
- The DOJ will now consider both your risk assessment methodology for identifying risks and gathered evidence.
- You should base your compliance program on your risk assessment.
Tom Fox and Nick Gallo discuss cultivating psychological safety within the workplace and innovation and growth, from Amy Edmondson’s book, The Fearless Organization. Tom expresses that a main aspect of psychological safety is creating a speak-up culture. Once your employees believe that you want them to speak up, your company can move forward.
Amy Edmondson is a scholar of leadership, teaming and organizational leading. She is currently the Novartis Professor of Leadership at Harvard Business School.
Listeners can read Nick’s notes on this book at his LinkedIn page.
Resources
Tom Fox on LinkedIn | Twitter
CompliancePodcastNetwork.net
Nick Gallo on LinkedIn
ComplianceLine.com
The Fearless Organization by Amy Edmondson
Welcome to the only roundtable podcast in compliance. Today, we have the quintet of Jonathan Armstrong, Jay Rosen, Jonathan Marks, Matt Kelly and Tom Fox for a deep dive into events surrounding the Donald Trump led insurrection at the US Capitol on January 6. We end with a veritable mélange of rants and shouts outs.
- Jonathan Armstrong joins us from London to consider the banning of Trump from social media platforms and the general view on things from across the pond. He has a melancholy shout out to the Capitol Police officer who was killed in the attack on the Capitol and the five UK police officers killed in the line of duty in 2020.
- Jay Rosen asks, where were the police? He wonders why police response was so abysmal and why it took the National Guard so long to be deployed. Jay shouts out to the Senate and House who went back to work after the attack and completed their Constitutional mandate to count the votes and report on the results. He also shouts out to Congressional aides who saved the physical votes from destruction.
- Matt Kelly considers the compliance response to these events as we move into 2021 and the Biden Administration. Matt has a dual shout out and rant. He shouts out to Simon & Schuster for cancelling the contract of insurrection leading Senator Josh Hawley and rants Hawley.
- Jonathan Marks looks the attack on the Capitol from a crisis management perspective in terms of a risk assessment and root cause analysis. In a very Philadelphia rant Marks excoriates now former Eagles coach Doug Peterson for tanking the final game of the season against Washington.
- Tom Fox looks at the business enablers of Donald Trump and the Trump Administration and wonders when they will be called to task. He gives a shout out to Texas Senator Ted Cruz who sent out fundraising emails during the insurrection asking donors to donate money to the continue his attacks and lies. Through his actions Cruz retains his standing as the No. 1 A-Hole in Congress.
The members of the Everything Compliance are:
- Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.com
- Mike Volkov – One of the top FCPA commentators and practitioners around and the 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. Kelly can be reached at mkelly@radicalcompliance.com
- Jonathan Armstrong –is our UK colleague, who is an experienced data privacy/data protection lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com
- Jonathan Marks is Partner, Firm Practice Leader – Global Forensic, Compliance & Integrity Services at Baker Tilly. Marks can be reached at marks@bakertilly.com
The host and producer (and sometime panelist) of Everything Compliance is Tom Fox the Voice of Compliance. He can be reached at tfox@tfoxlaw.com. Everything Compliance is a part of the Compliance Podcast Network.
Richard Lummis and I are back for another episode of 12 O’Clock High, a podcast on business leadership. Today, we take up the issue of how to brief senior leadership in an organization. This podcast is based upon a recent Harvard Business Review article How to Brief a Senior Executive by Grant T. Harris. Harris notes in his article, “Briefing a senior executive is an art and adept White House staffers do it every day under the most stressful of circumstances. They’re masters of compressing the right information into the right amount of time, no matter how complex the topic or short the briefing. The skills needed to brief the chief executive in the Oval Office are directly applicable to briefing any executive in the C-suite.”
Some of the highlights include:
- Before You Walk into the Room (or Log in)
- Identify the “crucial nodder.”
- Know your boss’s “tells.”
- Find out how the boss engages with the material.
- Plan for gradations of success and failure.
- Keep an idea alive to fight another day or, in the best-case scenario, go bigger and faster in implementation.
- In the Room (or on the Video Conference Call)
- Read the room, not your notes. Whether the briefing is in person or virtual, you need to read cues and body language. In short, “take cues, not notes.”
- Stay laser focused on your task.
- Practice the art of staying silent.
- What does it all mean?