In today’s edition of Daily Compliance News:
· Court loss is a win for climate. (Reuters)
· New types of FCPA enforcement actions coming. (WSJ)
· FTC and anti-trust. (WSJ)
· Mike Lynch has a very bad weekend. (BBC)
Tag: antitrust
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 have considered Monaco’s remarks from a variety of perspectives. Bethany Hengsbach considered this change in monitorships from the white-collar enforcement and defense perspective. Mikhail Reider Gordon looked at global aspects of the new DOJ monitor’s focus. Cristina Revelo discussed how E&C assessments help drive more compliant companies. Vin DiCianni looks at where monitors and monitorships are going in 2022 and beyond. In this Episode 4, Jesse Caplan brought his views on the intersection of the twin topics of antitrust and healthcare compliance.
Highlights of this podcast include
- What is the intersection of healthcare and antitrust compliance?
- Why compliance and ethical culture have become so important from a regulatory perspective, a commercial perspective and a talent acquisition and maintenance perspective?
- How and why are States’ Attorney Generals using monitorships with greater frequency and focus.
Resources
Jesse Caplan
Affiliated Monitors Inc.
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 discussed this change in monitorships from the white-collar enforcement and defense perspective. Mikhail Reider-Gordon looked at global aspects of the new DOJ monitor’s focus. Cristina Revelo discussed how ethics and compliance (E&C) assessments help drive more compliant companies. We will conclude the series with Vin DiCianni who will look at where monitorships are going in 2022 and beyond. In Part 4, Jesse Caplan, Managing Director of Corporate Oversight, brings his views on the twin topics of antitrust and healthcare compliance.
Both antitrust and healthcare have significant needs for monitorships. Antitrust concerns raised by the government can be handled through a monitorship of specific issues so that a merger can often go through and satisfy the regulators. This is a prime example of the DOJ or Federal Trade Commission (FTC) extending their reach so that anti-competitive issues do not arise or are properly remediated. Healthcare regulators are most interested in the continued delivery of healthcare services, particularly on the state and local level. It is not in anyone’s interest to stop the delivery of healthcare services which puts a hospital, healthcare practice group or doctor out of business, absent grievous circumstances. By using a monitor, a state regulator can help assure an appropriate level of compliance from a healthcare provider.
There were three key components from the Monaco Speech around monitors. Number one, that monitors are not viewed by the DOJ as punitive and should not be viewed as such by the compliance community or wider corporate community. Here Caplan observed, it is not the job of a monitor “to be punitive, but rather to facilitate a successful compliance program and a successful settlement agreement, works with both the government and for the company.” Number two is a monitor can act as an early tripwire to prevent companies from sliding into a recidivous situation. Number three, monitors bring a level of skill and talent around compliance programs and corporate culture that can help companies create a best practices program so the monitor actually works with the companies under an enforcement action to help them create a program that will be sustainable far down the road. Caplan said, a monitor can bring an “appreciation for what government enforcers are looking for, what the goals of government regulators are, as well as some of the challenges and goals of companies, who want to be successful and to do so in a compliant and fair manner.”
We then turned to the evolution of thinking of state regulators around monitors. Caplan noted, “some of these state Attorney General’s (AG) offices have realized for a long-time monitors can really be a resource extend for government agencies and particularly enforcement agencies.” He pointed to the example of the “Massachusetts Attorney General’s office, particularly with their Medicaid fraud control.” He went on to say, “more and more state AGs are using monitors when they enter in settlement agreement with conditions.” Using an independent allows an extension of their resources, to “verify that the company is compliant with those settlement conditions.”
Perhaps most powerfully, independent monitors can be seen as “an honest broker, bridging between the company and the regulator. Moreover, monitors can actually facilitate, a successful transition and then termination of a monitorship.” Caplan said, “we can do that because we can have candid conversations with both the company and then separately with the government, so that we can better understand where there might be disconnect between the two, and then we can help connect compliance up so that there’s not misunderstandings. There may be different expectations that end up sometimes torpedoing a settlement agreement and by having those conversations, by serving as that bridge, we can help prevent problems address so that ultimately the monitorship is successful.”
Affiliated Monitors
Jesse Caplan
Welcome to the newest addition to the Compliance Podcast Network, Compliance and Coronavirus. This week, I visit with three Managing Directors from Affiliated Monitors about issues they are seeing around Covid-19 and the economy reopening, each from their professional perspective. In this episode I visit with Dionne Lomax on antitrust issues in mergers and acquisitions as the economy reopens and into Q3 & Q4.
Lomax is Managing Director of Antitrust and Trade Regulation at AMI. Ms. Lomax also teaches Business Law at Boston University’s Questrom School of Business and co-teaches a Health Care Competition seminar at the Boston University School of Law. Prior to joining AMI, Ms. Lomax dedicated her legal career to analyzing complex business transactions from an antitrust regulatory perspective. Prior to entering private practice, Ms. Lomax served as a Trial Attorney at the DOJ’s Antitrust Division’s Health Care Task Force where she analyzed the structure and operation of PHOs and IPAs, investigated health plan mergers, and other collaborative arrangements in the health care industry. She clerked for The Honorable Clifford Scott Green in the United States District Court for the Eastern District of Pennsylvania.
For more information on AMI, check out their website here.
In this special podcast, we discuss the U.S. Department of Justice Antitrust Division’s recently announced initiative to encourage corporations to develop and implement effective antitrust compliance programs. We consider the new guidance and special considerations during the COVID pandemic and provide practical tips for developing a comprehensive program, including tips on how to handle a federal and/or state antitrust investigations.
Moderator:
Dionne Lomax — Managing Director, Antitrust and Trade Regulation (Affiliated Monitors, Inc.)
Panelists:
Peter Mucchetti — Partner (Clifford Chance)
Vic Domen — Partner (Norton Rose Fulbright)
Jesse Caplan — Managing Director, Corporate Oversight (Affiliated Monitors, Inc.).
For more information on Affiliated Monitors, check out their website here.
In this episode I visit with Affiliated Monitor’s Managing Director Jesse Caplan on the recently released DOJ Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations. Highlights from the podcast include:
- How does this change the Antitrust Division Leniency Program?
- Does your compliance program have an antitrust focus?
- How should compliance professionals consider using this Evaluation?
- How does this Evaluation fit in with Evaluation of FCPA Compliance Programs?
For a copy of the DOJ Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations, click here.
In this episode I visit with Affiliated Monitor’s Managing Director Jesse Caplan on the recently released DOJ Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations. Highlights from the podcast include:
- How does this change the Antitrust Division Leniency Program?
- Does your compliance program have an antitrust focus?
- How should compliance professionals consider using this Evaluation?
- How does this Evaluation fit in with Evaluation of FCPA Compliance Programs?
For a copy of the DOJ Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations, click here.
Welcome to the only roundtable podcast in compliance. Today, we have the full quintet of Mike Volkov, Jay Rosen, Matt Kelly, Jonathan Armstrong and Sarah Hadden. Rants and shouts outs follow the commentary for this episode.
- Jay Rosen considers why governmental entities other than the federal government benefit from independent integrity monitors in their oversight capacity. This includes state AGs, state regulators, counties, cities and school districts. Jay reflects on the anniversary of his father’s death and shouts out to his memory for all the great advice he got from him.
- Jonathan Armstrong considers how the ICO has bared its teeth in two recently proposed enforcement actions for data breaches; British Airways and Marriott. Jonathan shouts out to the England team which won the recently concluded Cricket World Cup and to the graciousness in defeat of the New Zealand team which lost in heartbreaking fashion.
- Sarah Hadden reflects on her six-month ride as owner/publisher of Corporate Compliance Insights. Hadden shouts out to a team of a female filmmakers who have formed One Vote at a Time dedicated to the eradication of gun violence. Not only do they believe in a future free of gun violence but they deploy skills to elect legislators at all levels of government to fight for it.
- Matt Kelly considers the compliance lessons from the Trump Administration’s detention camps on the US/Mexico border. Kelly rants about the USOC which is hiring its very first CCO. He also notes that it took him six clicks to find the USOC Code of Conduct on the Commission’s website.
- Mike Volkov discusses the new DOJ Antitrust Division’s Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations. Volkov shouts out to the Greater Houston Business and Ethics Roundtable (GHBER) as a model for local business ethics groups.
- Tom joins in a shout out to the author Andrea Camilleri, at the age of 69, took up mystery novel writing and came up with the Inspector Montalbano detective books.
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 lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com
- Sarah Hadden–Publisher at Corporate Compliance Insights. Hadden can be reached at Sarah@corporatecomplianceinsights.com
The host and producer (and sometime panelist) of Everything Compliance is Tom Fox the Compliance Evangelist. Everything Compliance is a part of the Compliance Podcast Network.