Tag: AMI

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Innovation in Compliance

Not Your Father’s Monitor- Episode 2: Mikhail Reider Gordon on the Global Nature Aspects of New DOJ Focus on Monitors


In October, Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime (Monaco Speech). Monaco’s remarks should be studied by every compliance professional as they portend a very large change in the way the DOJ will utilize monitors going forward. Over this podcast series, sponsored by AMI we will consider why DAG Monaco’s remarks herald a new era for monitorships.
Over this podcast series we will consider Monaco’s remarks from a variety of perspectives. Bethany Hengsbach considered this change in monitorships from the white-collar enforcement and defense perspective. Cristina Revelo discusses how E&C assessments help drive more compliant companies. Jesse Caplan will bring his views on the intersection of the twin topics of antitrust and healthcare compliance. Vin DiCianni looks at where monitors and monitorships are going in 2022 and beyond. In this Episode 2, Mikhail Reider Gordon will look at global aspects of the new DOJ monitor’s focus.
Highlights of this podcast include:

  1. As far back as late 2020, the DOJ made clear its increased focus on working with other international regulators in the fight against bribery and corruption.
  2. The Biden Administration and introduced legislation in Congress have targeted the global nature of corruption and kleptocracy.
  3. We have seen and will continue to see ABC enforcement from several surprising sectors.

Resources
Mikhail Reider Gordon
Affiliated Monitors Inc.

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Blog

Not Your Father’s Monitor – Mikhail Reider-Gordon on Global Aspects of New DOJ Monitor’s Focus

In October, Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime (Monaco Speech). Her remarks reframed a discussion about the uses of, reasons for and perceptions on independent monitors and monitorships. I asked Affiliated Monitors Inc. (AMI) founder Vin DiCianni for his thoughts around the remarks on monitors. He said, “For Affiliated Monitors this refreshed approach by DAG Monaco highlights the seriousness which businesses must place on the investment in their programs and in addressing what has for some been a negative experience with a monitor. For those who might be the subject of a monitorship, DAG Monaco recognized that the negativity that has sometimes surrounded monitorships as being punitive, should be seen in a different light bringing value, pointing a way forward and as a solution which has had great success in resolving matters.”
Monaco’s remarks should be studied by every compliance professional as they portend a very large change in the way the Department of Justice (DOJ) will utilize monitors going forward. Over this podcast series, sponsored by AMI, we will consider why DAG Monaco’s remarks herald a new era for monitorships. We will consider Monaco’s remarks from a variety of perspectives. Bethany Hengsbach will consider this change in monitorships from the white-collar enforcement and defense perspective. Mikhail Reider-Gordon will look at global aspects of the new DOJ monitor’s focus. Cristina Revelo will discuss how ethics and compliance (E&C) assessments help drive more compliant companies. Jesse Caplan brings his views on the twin topics of antitrust and healthcare compliance. We will conclude the series with Vin DiCianni who will look at where monitorships are going in 2022 and beyond. In Part 2, Mikhail Reider-Gordon, Managing Director of Institutional Ethics & Integrity, will look at global aspects of the new DOJ monitor’s focus.
Mikhail said the change in DOJ focus and orientation actually started in late 2020 when then Acting Assistant Attorney General Brian Rabbit said in a speech, “notably many of DOJ, corporate resolutions in 2020 included coordination with one or more foreign enforcement authorities and increasingly important aspect of DOJ his work.” Mikhail believes that since that time, it is reasonable to conclude that US regulators have progressively coordinated with foreign enforcement authorities to resolve multi-jurisdictional corruption and money laundering cases and other white-collar crimes. She added, “I would even say the cross jurisdictional approach has really gained traction in 2021.”
Next, she pointed to a recent interview of John Carlin in the Financial Times. In this article, Carlin drew particular attention to two types of companies. The first, those entities which violated their Deferred Prosecution Agreements (DPAs) or other settlement agreements and the second are those companies failing to invest in compliance systems that are now in all practicality a mandatory business and legal practice. Taking Carlin’s FT interview, Rabbit’s 2020 speech and the Monaco Speech and the renewed focus on corporate malfeasance US legislation recently passed or proposed, we see a DOJ which is fully focused on fighting the international scourge of corruption. Finally, if the Biden Administration announcement raising corruption to a national security concern.
Mikhail highlighted one key outcome from the Monaco Speech and related DOJ announcements. It is that companies can take proactive steps right now to address these DOJ concerns. She said that businesses “may want to take a hard look at their corporate compliance programs and assess just how robust and effective they truly are. If you are a corporation currently under a DPA and a monitor was not imposed, but you aren’t certain how well you’re meeting the terms of your settlement agreement really well. You know, now may be the time to seek out an independent assessment.”
We concluded by circling back to two words from the Monaco Speech, ‘independent’ and ‘integrity’. I asked Mikhail why she thought those two words were so significant. She said, “one thing that when we talk about independence is that it indicates that the monitor is a neutral, impartial evaluator. Whether it is a law firm or consultancy that offers a range of services, your firm cannot be thinking down the road, we can sell them more services. So, let’s handle them gently, lightly. Let’s not tell them the truth. We don’t want to offend them. We want them to hire us later for all this other work. You can’t have independence that way.” Your firm must be truly independent.
We then turned to the word ‘integrity’, which Mikhail observed “is at the core, all of compliance and ethics.” Unfortunately, we seemed to have moved away from this concept of integrity somewhat. Mikhail noted, “we don’t focus enough anymore on the philosophy that underpins the concept of integrity and ethics. You can have all the transparency in the world, but if you don’t have integrity what you do fails. The concept of independence and understanding we do this; this is the right thing to do that this is better for society. This is the spirit of the law. It is embracing integrity, it’s not compromising integrity, it’s not phoning it in if you will.”
Even the G20 is moving in this direction, dovetailing in concert with the Biden administration. In November, the G20 issued their anti-corruption action plan for 2022 through 2024. The G20 has made clear, now more than ever, the international fight against corruption requires increased international cooperation and renewed global commitment. Here Mikhail noted they are “really calling for a spirit of zero tolerance of corruption.”

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Innovation in Compliance

Not Your Father’s Monitor- Epsiode 1: Bethany Hengsbach on the Implications for White Collar Enforcement and Defense


In October, Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime (Monaco Speech). Monaco’s remarks should be studied by every compliance professional as they portend a very large change in the way the DOJ will utilize monitors going forward. Over this podcast series, sponsored by AMI we will consider why DAG Monaco’s remarks herald a new era for monitorships.
Over this podcast series we will consider Monaco’s remarks from a variety of perspectives. Mikhail Reider Gordon will look at global aspects of the new DOJ monitor’s focus. Cristina Revelo discusses how E&C assessments help drive more compliant companies. Jesse Caplan will bring his views on the intersection of the twin topics of antitrust and healthcare compliance. Vin DiCianni looks at where monitors and monitorships are going in 2022 and beyond. In this Episode 1, Bethany Hengsbach considers this change in monitorships from the white-collar enforcement and defense perspective.
Highlights of this podcast include:

  1. DOJ mandates a commitment to monitors in a non-punitive manner.
  2. The DOJ now views monitors and monitorships as a way to extend their reach.
  3. The DOJ hopes this new program will proactively use compliance programs to prevent future corrupt activity and prevent recidivism.

Resources
Bethany Hengsbach
Affiliated Monitors Inc.

Categories
Blog

Not Your Father’s Monitor – Bethany Hengsbach on White Collar Enforcement and Defense

In October, Deputy Attorney General (DAG) Lisa O. Monaco gave a Keynote Address at ABA’s 36th National Institute on White Collar Crime (Monaco Speech). Her remarks reframed a discussion about the uses of, reasons for and perceptions on independent monitors and monitorships. I asked Affiliated Monitors Inc. (AMI) founder Vin DiCianni for his thoughts around the remarks on monitors. He said, “For Affiliated Monitors this refreshed approach by DAG Monaco highlights the seriousness which businesses must place on the investment in their programs and in addressing what has for some been a negative experience with a monitor. For those who might be the subject of a monitorship, DAG Monaco recognized that the negativity that has sometimes surrounded monitorships as being punitive, should be seen in a different light bringing value, pointing a way forward and as a solution which has had great success in resolving matters.”
Monaco’s remarks should be studied by every compliance professional as they portend a very large change in the way the Department of Justice (DOJ) will utilize monitors going forward. Over this podcast series, sponsored by AMI, we will consider why DAG Monaco’s remarks herald a new era for monitorships. We will consider Monaco’s remarks from a variety of perspectives. Bethany Hengsbach will consider this change in monitorships from the white-collar enforcement and defense perspective. Mikhail Reider-Gordon will look at global aspects of the new DOJ monitor’s focus. Cristina Revelo will discuss how ethics and compliance (E&C) assessments help drive more compliant companies. Jesse Caplan brings his views on the twin topics of antitrust and healthcare compliance. We will conclude the series with Vin DiCianni who will look at where monitorships are going in 2022 and beyond. In Part 1, Bethany Hengsbach, Managing Director of Global Corporate Compliance, looks at the speech from the perspective of white-collar enforcement and defense.
Hengsbach was present for the Monaco Speech. She noted that while the remarks were a bit of a surprise because of their content and their timing, she did not believe they were a change in policy but “going back to the way things had been for a long time. And obviously, you know, she specifically rescinds certain guidance from the past specifically with respect to monitors” [Benczkowski Memo]. Moreover, the Monaco Speech emphasized the “non-punitive” nature of monitorships. The DOJ views the imposition of independent monitors as appropriate to do so in order to satisfy itself that a company is living up to its compliance and disclosure obligations under a settlement agreement. Hengsbach believes this is “a recognition of the role, that monitors play in fostering an environment of compliance, not just as a penalty, or even as a component of NDA or a DPA or a plea agreement, but really as a tool to incentivize compliant conduct on the front end.”
The Monaco Speech really drove home the message that monitorships do not have to be a negative experience. Here Hengsbach believes “it is incumbent upon the independent monitorship community understand that our role is not to play the ‘gotcha’. It’s to lend a helping hand to the company to say, this is the way forward. This is the way out of this difficult situation.” A monitorship can be used to build a stronger, more compliant company that has better relationships with regulators. Hengsbach added, “the change in policy is important but I think it’s incumbent also upon monitors themselves to really react to this, to this change in policy and ensure that monitors, are not viewed in a punitive way, because in many ways I think that was earned.”
Hengsbach concluded by considering the third component of the Monaco Speech, recidivism. Obviously, this is something the DOJ is very concerned about, both in the Foreign Corrupt Practices Act (FCPA) context as well as other white collar enforcement actions. A more proactive use of monitors can help keep the company from becoming a recidivist during the pendency of a Deferred Prosecution Agreement (DPA) or Non-Prosecution Agreement (NPA) or other form of settlement agreement through putting in a more robust compliance program to prevent and detect compliance violations. A monitorship also acts to expand the reach of the DOJ to also stop recidivist conduct.
The one other area I wanted to visit with Hengsbach about was related to DAG Monaco’s remarks about recidivism. If you draw a line back to monitorships, monitors can be used in yet another way, in addition to the non-punitive manner, in addition to extending the DOJs reach through the use of the tool of the monitorship, it could actually help to prevent future corruption, because we do have recidivous in the FCPA world, or we have it had in the past. How can the use of a monitorship keep a company from a coming of recidivists, from getting into more trouble, having additional financial penalties or other burdens put upon them as well?
Hengsbach has represented a recidivist corporation. She stated, “the issue of recidivism is real. I think that since then it has become unfortunately much more common. What we need to keep in mind here is what the Monaco Speech said about culture.” For it is through installing and maintaining a culture of compliance that you fix ongoing problems, particularly when it comes to corruption is to change the culture. Hengsbach believes this is a key reason why there are “repeat offenders in the FCPA world, because the fixes that are put in place are extremely narrow and geared at logistics or operations and not culture.”
What really drives compliance is real changes in culture. Hengsbach believes this is “an area in which monitors can be extremely useful. We have engagements now where we are exclusively focused on culture and companies, really smart companies, realize that cultural issues are the canary in the coal mine, oftentimes for real enforcement problems.” Hengsbach concluded, “this shift in policy to use monitors to prevent recidivism is fantastic. Especially when you take into account the impact that we as monitors can have on culture.”
For more from Bethany Hengsbach, check out her podcast here.

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Great Women in Compliance

Cristina Revelo – Choose Your Adventure and Build Your Career


Welcome to the Great Women in Compliance Podcast, co-hosted by Lisa Fine and Mary Shirley.
Some people consider ethics and compliance officers as risk averse given our roles in organizations.  However, so many people in our professional community have taken risks and evaluated opportunities for both their personal and professional lives.  Today’s guest is one of those people.
Cristina Revelo started her career at KPMG, and then moved WalMart, and also relocated to Arkansas to take on this role.  Today, she is Deputy Director, Corporate Monitoring and Compliance Services at Affiliated Monitors, Inc.
Cristina talks about her experiences when she joined WalMart, and in particular about going to Colombia and taking on an interim country lead role.  She talks about opportunities that she took early on and challenges that she encountered, being less senior than some others and being a woman,
There were also times where she looked at an opportunity and decided it was not the right one, and how she said no, without burning bridges and remaining open to new opportunities.
We also get to hear how it is going at Affiliated Monitors as it is a relatively new role for Cristina, and also talk a bit about our experience at SCCE CEI.  We hope you enjoy this last episode of the summer/fall GWIC series.
Corporate Compliance Insights is a much appreciated sponsor and supporter of GWIC, including affiliate organization CCI Press publishing the related book; “Sending the Elevator Back Down, What We’ve Learned from Great Women in Compliance” (CCI Press, 2020).  Thank you to all those who have taken the time to rate the GWIC podcast and book, it’s much appreciated.
If you’ve already read the booked and liked it, will you help out other women to make the decision to leverage off the tips and advice given by rating the book and giving it a glowing review on Amazon?
As always, we are so grateful for all of your support and if you have any feedback or suggestions for our line up or would just like to reach out and say hello, we always welcome hearing from our listeners.
You can subscribe to the Great Women in Compliance podcast on any podcast player by searching for it and we welcome new subscribers to our podcast.
Join the Great Women in Compliance community on LinkedIn here.

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The Affiliated Monitors Expert Podcast

The the Power of a Pre-Settlement Monitorship


In this episode,  I am joined in this podcast series by Jay Rosen, the Vice President of Business Development and Monitoring Specialist at Affiliated Monitors, Inc. In this series we introduce the role of independent integrity monitors and corporate monitorships; discuss both pre-settlement and post-resolution monitorships and their different applications; considerations a company should take in hiring a monitor and cost reflections for monitorships. Today, in Part 3, we consider the power of a monitorship in the pre-settlement phase of any matter.
Some of the highlights from this podcast include:
1.  What is an Internal Cultural Assessment?
2.  How can a pre-settlement monitorship be used as a (a) Pre-emptive Strike; or (b) to prevent a suspension or debarment action?
3.  What is the power of a pre-acquisition monitor in M&A Due Diligence?
4.  How is an independent integrity monitor can be a powerful prescriptive tool?
For additional reading see Jay Rosen’s article What is the Power of a Pre-Settlement Monitorship?on Corporate Compliance Insights.
For more information on Affiliated Monitors, Inc. visit their website here.

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The Affiliated Monitors Expert Podcast

The Nuts and Bolts of Working with a Monitor for Defense Counsel


In this podcast I am joined by AMI Managing Director Don Stern. We consider how defense counsel can work proactively with independent monitors to help clients who may have sustained an ethical or compliance violation or are under government scrutiny for allegations of illegal misconduct in a wide variety of industries, disciplines and corporate settings. In this episode, take a deep dive into the nuts and bolts of defense counsel working with a third-part independent monitor.
We began by exploring some basic questions around the attorney/client privilege, which belongs to the client and not the lawyer. Further, if a third-party independent monitor is retained by corporate legal to perform an assessment or review, it can be done under attorney/client privilege. It designed to give the company maximum information and flexibility to not have people being concerned about the information flow. It puts company’s in a position to make a decision on the possible self-disclosure. Not every issue needs to be self-reported nor does the government want to hear about every issue.
Stern emphasized that the privilege provides a company with the ability to self-disclose and, in some cases, to protect that information at least initially without worrying about being sued by private parties or class actions are securities cases. It allows an organization to “get an unvarnished view of the facts by an outsider or it goes to the lawyer who can assess it and discuss it with the client and then make a decision.” It allows you to explore such questions as: Do we need to report it? Should we report it? How should it be reported?” It can be a very powerful tool.
The bottom line is that companies cannot simply bring in a third-party independent, get a report or findings and then put their head in the sand. Stern believes being proactive means not simply bringing in an independent third-party but also using the information developed in a proactive manner. He said, “It is being aggressively proactive in fixing your problems. It is being as transparent as possible within that particular company’s environment. Identifying and fixing the problems, not only builds confidence internally within but provides assurance to the outside world; to shareholders, the media and government regulators that you are identifying your problems and fixing them yourself. This is the way to go.”

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The Affiliated Monitors Expert Podcast

Small Business Concerns


In this podcast I am joined by AMI Managing Director Rod Grandon. In this episode, we discuss small business compliance programs. Companies do not need to “break the bank” in order to have an effective program. The United States Sentencing Commission Guidelines Manual (Guidelines) expressly provide that the “formality and scope of actions that an organization shall take to meet the requirements of [the] guideline, including necessary features of the organization’s standards and procedures, depend on the size of the organization.” Small concerns must still demonstrate the “same degree of commitment to ethical conduct and compliance with the law as large organizations,” but may do with “less formality and fewer resources” than would be necessary of a large concern.
These programs, and their benefits, extend beyond a written set of rules and policies. Companies use ethics and compliance programs to communicate company mission statements, goals and expectations; to encourage staff to share the same set of corporate values; and to drive their behavior in day-to-day business activities.
It may be appropriate for small concerns to rely on “existing resources and simple systems.”  For example, it may be appropriate:

  • For senior company leaders to discharge their responsibilities for oversight of an effective program by directly managing the company’s efforts, as opposed to hiring or designating others to do so.
  • To train employees through informal staff meetings, and monitoring effectiveness through “regular ‘walk-arounds’ or continuous observation while managing the organization.”
  • To use available personnel and resources, rather than employing separate staff, to run the program.
  • To model the company’s ethics and compliance program on existing, high-quality programs and practices of other similar organizations (although, as noted above, there are no perfect one-size-fits-all programs – even if adopting an existing program, the company must tailor that program to the specific business needs and operational risks associated with the company’s activities).
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The Affiliated Monitors Expert Podcast

Final Reflections on 15 Years


In this episode, I ask DiCianni to reflect on where AMI has been, where it may be going and what he is most proud of on the occasion of the 15th anniversary of the founding of AMI. DiCianni identified a couple of themes. One has been the independence and integrity of AMI throughout its history. DiCianni stated, this has  “been something that has been very conscious on our part, to maintain our independence. We are not a law firm so we don’t compete with other law firms. We’re not investigators, so we’re not doing the legwork part of the investigation. We are not expert witnesses. We have stayed in, I’ll call it, our swim lanes.” This has allowed AMI to focus on one thing and one thing only, which is to provide “great independent monitoring services and to providing proactive assessments that use the skills that we’ve learned as monitors, to meet regulatory requirements.” This  “professionalism, integrity, independence, which is in our bloodstream has helped us greatly.” The second has been  the evolution in the thinking of the regulators around the role of an independent monitor. When the role began in the past decade it was very much about regulatory compliance. This evolved to legal compliance, eventually moving to ethics-based compliance. Now with the Benczkowski Memo, it is proactive compliance.
We concluded by me asking DiCianni what he was most proud of from the creation of AMI in 2004 up through the 15th anniversary. He said there were three things. The first is that he was able to take an idea, the need for an independent monitor, and germinate it into an ongoing, successful and viable business concern. The second was through the work of AMI, DiCianni has helped not only companies become more robust around ethics and compliance but AMI has helped them become better run organizations. He said, “the fact that we really have helped a lot of companies. We’ve just wrapped up a few matters, and we get these unsolicited comments by our clients and when they say you’ve made, we didn’t want to have a monitor, but you made us a better company. That makes you feel great. And when you do that, that’s been very fulfilling.” The final thing that DiCianni mentioned was the people of AMI. He said, “The last thing that I’m proud of is that I have a remarkable team of people. I have a great team of people dedicated and passionate about the work that we do. So that makes me very proud. We never know what the next day is going to bring. And so there’s a level of uncertainty, which is a good thing because you never know what the next case could be. So again, Tom, it’s been a great 15 years and I’m really looking forward to more of this.”

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The Affiliated Monitors Expert Podcast

The Marriage of Independent Monitors and C&E Programs

Today,  I visit with Vin DiCianni, CEO and founder of Affiliated Monitors, Inc. In this episode I visit with DiCianni on the marriage of independent monitors and compliance and ethics programs. DiCianni said that the evolution away from strict regulatory compliance to a more ethics-based compliance has been one of the most significant advancements in independent monitors over the history of AMI. Early on AMI had independent monitorships in the health care industry around such issues as billing and coding. From there, AMI began to address other issues such as codes of conduct and conflicts of interest. So AMI was well suited to move into a more direct ethics-based compliance independent monitorship as the first decade progressed.
DiCianni said that over the life of AMI there have been two Memos released by the Department of Justice (DOJ) which have directly impacted the selection of independent monitors and their application. The first was the Morford Memo, released in 2008. In this Memo, the selection criteria for independent monitors was first laid out, including the need for subject matter expertise and independence and integrity of the monitor.
The second was the Benczkowski Memo, released in 2018, which discusses limiting the use of monitors to certain situations where they might be warranted. However, it does give a company the incentive to go out and evaluate their own ethics and compliance programs, compelling them to strengthen those programs so that if they are ever confronted with an investigation or a self-disclosure to the DOJ, the company can demonstrate it has a strong compliance and ethics program and perhaps get special consideration.