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31 Days to More Effective Compliance Programs Uncategorized

One Month to More Effective Reporting and Investigations – Board Investigations

In their article, “Successful Board Investigations”, David Bayless and Tammy Albarrán, offered seven considerations to facilitate a successful Board investigation.

  • Consider whether you need independent outside counsel.
  • Consider hiring an experienced investigator to lead the internal investigation.
  • Consider the need to retain outside experts.
  • Analyze potential conflicts of interest at the outset and during the investigation.
  • Carefully evaluate whistleblower allegations.
  • Request regular updates from outside counsel, without limiting the investigation.
  • Consider whether an oral report at the conclusion of the investigation is sufficient.

The authors conclude their piece by stating, “By keeping in mind the issues addressed above, the Board will be better prepared for the investigation and readily able to exercise good judgment throughout the review. A well-conducted investigation by the Board may spare the company further disruption and costs associated with follow-on investigations by the regulators, or at the very least minimize the company’s exposure.”

Three key takeaways:

  1. Retain the right counsel. Consider conflicts and appearance.
  2. Carefully evaluate all whistleblower allegations and reject retaliation.
  3. Consider receiving oral reports on an ongoing basis and one lengthy oral report at the end of the investigation.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Board Investigation Protocols

Many companies have an investigation protocol in place when a potential compliance violation or other legal issue arises. However, many Boards of Directors do not have the same rigor when it comes to an investigation, which should be conducted or led by the Board itself. The consequences of this lack of foresight can be problematic, because if a Board does handle an investigation right, the consequences to the company, its reputation and value can be quite severe. The SEC considers a variety of factors around corporate investigations including: Did management, the board or committees consisting solely of outside directors oversee the review? Did company employees or outside persons perform the review? If outside persons, have they done other work for the company?

Dan Chapman has said this is the time for a very frank conversation with your Board about what such an investigation will entail. Costs must be adequately discussed to set proper expectations. These include both direct costs and, what Chapman believes may be even more important, a discussion of indirect costs to the company. He noted, “the biggest cost to a company during an investigation is the diversion of management resources” and, as he further explained, “everything stops to focus on the investigation.” This indirect cost comes through largely the time commitment of senior management. He further explained, “if senior management has to commit 20% of their time to the investigation, that’s 20% that’s not going towards revenue generating, shareholder value protecting activities.”

Finally, Jonathan Marks has noted after notification of serious allegations, Boards should take the following steps:

• Consider creating a Special Committee to conduct the investigation;

• Establish a committee charter;

• Preserve the electronic and hardcopy documentation environment;

• Communicate with external auditors; and

• Plan potential communication with the SEC, DOJ, and the relevant stock exchange.

Marks also notes that while a special committee might be necessary in certain rare circumstances, the Board should try to avoid forming a special investigative committee to oversee the investigation if the Audit Committee is composed of independent and disinterested directors that are suited for the task. A special committee must be disbanded at some point (usually once the investigation is completed and before the restatement process begins), and the disbanding could become a complicated news item. Conversely, if the Audit Committee oversees the investigation, then, once the investigation is complete, they can pivot back to their normal role, which would include overseeing the actual restatement process. Investigations overseen by the Audit Committee also benefit from the positive relationship that the committee chair usually has with the audit partner of the company’s external auditor.

 Three key takeaways:

1. The Board should have a written protocol for investigations prepared in advance.

2. Any Board led investigation must be both credible and objective.

3. The investigation must be thorough but the Board can be cost effective.

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Daily Compliance News

Daily Compliance News: July 25, 2023 – The Ted Cruz Be Damned Edition

Welcome to the Daily Compliance News. Each day, Tom Fox, the Voice of Compliance brings to you compliance-related stories to start your day. Sit back, enjoy a cup of morning coffee, and listen in to the Daily Compliance News. All, from the Compliance Podcast Network. Each day we consider four stories from the business world, compliance, ethics, risk management, leadership, or general interest for the compliance professional.

  • Chinese fight seed corruption. (WSJ)
  • UM Law bans using ChatGPT in applications. (Reuters)
  • Another ex-con embraces compliance. (WSJ)
  • Barbie No. 1 movie for the weekend. (NYT)
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31 Days to More Effective Compliance Programs

One Month to Better Reporting and Investigations – How an Investigation Informs Remediation

There is nothing like an internal whistleblower report about a FCPA violation, the finding of such an issue or (even worse) a subpoena from the DOJ to trigger the Board of Directors and senior management attention to the compliance function and the company’s compliance program. Such an event can trigger much gnashing of teeth and expressions of outrage followed immediately by proclamations “We are an ethical company.” However, it may well be the time for a very serious reality check.
In addition to robust investigation, a company must engage in remediation of the offending conduct. The 2020 Update to the Evaluation of Corporate Compliance Programs mandated the additional significance of this by providing that this process must be considered “both at the time of the offense and at the time of the charging decision and resolution”. When you consider the strictures around continuous monitoring and continuous improvement in compliance programs it is clear why this analysis is so important. Obviously, a key test of any compliance program is when a deficiency is found and a violation occurs. The question then becomes, what did you do about it.
But from the DOJ (and Securities and Exchange Commission) perspective, the key is to use the information to both fix the problem so that it does not occur again but also improve your compliance regime.

Three key takeaways:

  1. How does your investigation inform your remediation plan?
  2. A compliance program failure offers a way to upgrade your regime.
  3. Your investigative team must inform your remediation team.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Issues in Cross Border Investigations

In an article, entitled “Internal Investigations, How to Conduct an Anti-Corruption Investigation: Developing and Implementing the Investigation Plan”, Mara Senn, now Director & Senior Counsel, Global Compliance Investigations at Zimmer Biomet  and Michelle K. Albert, former lawyer at Arnold & Porter discussed cross-border investigations. They considered the following issues.
Offer interview translations.
Avoid cultural pitfalls.
Observe data privacy restrictions.
Comply with labor requirements.
Be aware of other local requirements.
Put forms in native translations.
Preserve the attorney-client privilege.
Prepare for local enforcement actions.
Prepare for security risks.
Protect whistleblowers.

Three key takeaways:

  1. Use translators and translations of key documents in witness interviews.
  2. Use local counsel to facilitate the investigation and to help navigate any local anti-corruption investigation issues.
  3. Never, never, never retaliate. The SEC will pay whistleblower bounties for non-U.S. citizens.
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Blog

Farewell to Tony Bennett and Crafting Impactful Compliance Campaigns

Tony Bennett died last week. He was one of a handful of performers whose music filled my head, heart and ears my entire lifetime. For me, it all began with I Left My Heart in San Francisco  in the mid-1960s. By that time Bennett had at least one maybe two careers of a lifetime. But by the 1960s Bennett was just getting started. He was a crooner of the old school but he wanted to sing the classics, which he did. The thing about classics, is that they are classic for a reason. They are great songs  and in the hands of great singers the are wonderous.

The was never proved more so than in 1993 when MTV had Tony Bennett Unplugged. It was a musical event for the ages. It won a Grammy for Best Album. Here was a (then) 70-something crooning the classics to an entirely new generation of fan, GenXers. And they loved him, the songs and the music. That event led to Bennett going back on top for the rest of his life. It also led to collaborations and even duets with artists as diverse as Lady Gaga, KD Lange and Amy Winehouse. So farewell to Tony Bennett, forever singing the classics of the Great American Songbook.

Have you ever wondered how to make compliance training interesting and engaging? I thought about Tony Bennett after I recorded a recent podcast with Peter Grossman and Duane Stumpf, two experts in the field of compliance training, to discuss this very topic. Peter is the co-founder of Labyrinth Training, which creates interactive animated compliance trainings, and Dwayne is the global head of integrity and compliance and the chief compliance officer for Alcon Vision. Together, they discussed the challenge of incorporating a 1970s rock and roll music number into a compliance training, and how they created a training series that was interactive and required the user to make decisions that affected the narrative.

The conversation highlighted the importance of delivering lessons in a way that people will remember, enjoy, and take notice. Peter has a background in entertainment and publishing, having worked for US Weekly and Rolling Stone, and Dwayne is a “recovering sales rep” who spent the first decade of his life in sales and the next decade plus in consulting. Their combined experience and expertise made for a fascinating discussion.

The Lens policy is Alcon Vision’s policy on how they interact in the marketplace. It is a principles-based policy that helps guide and put context around being ethical in the marketplace with their products. Peter and his team helped Alcon Vision put real life scenarios into sticky, funny, and humorous content. The team then launched a compliance training program in a Netflix style, with five episodes each lasting seven to eleven minutes. The team hyped up the program with emails, internal social media posts, and movie posters.

The team was able to get an impressive 81% of people to complete the training within 60 days. They changed the narrative of compliance by creating something that had never been seen before. To make the training even more engaging, they incorporated a musical number into the training, with a 70s style rock song. They also created a catchy jingle for an awareness video about the importance of wearing masks.

The fourth episode of the training introduced the worst person, Dr. Louis. Dr. Louis is famous and is trying to take advantage of the salesperson by soliciting bribes. Dr. Louis is wearing a lab coat that looks like a NASCAR jacket, covered in ads for every product. He tries to convince the salesperson to sponsor his lab coat with the Q Four logo and even breaks into a song and dance to convince the salesperson to sponsor his lab coat. Martin, the salesperson, starts singing along with Dr. Louis at one point.

The CEO of the organization even sent a note of congratulations when the award was announced. They even created a fictional product called Q Four, a quadrifocal lens with a Siri-like voice command to change eye color. The purpose of the training was to get people to stop and think before they engage in activities. The team won two Telly Awards, one for the narrative and one for the interactive design.

The takeaway from this conversation is that compliance training should be engaging, interactive, and fun, and tailored to the needs of the organization. Using interactive elements, humorous content, and musical numbers, organizations can create effective and memorable compliance trainings that their employees will enjoy and take notice of and most importantly will become more engaged with your compliance function.

 THE LENS

CALL DR LOUIS

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10 For 10

10 For 10: Top Compliance Stories For the Week Ending July 22, 2023

Welcome to 10 For 10, the podcast which brings you the week’s Top 10 compliance stories in one podcast each week. Tom Fox, the Voice of Compliance brings to you, the compliance professional, the compliance stories you need to be aware of to end your busy week. Sit back, and in 10 minutes hear about the stories every compliance professional should be aware of from the prior week. Every Saturday, 10 For 10 highlights the most important news, insights, and analysis for the compliance professional, all curated by the Voice of Compliance, Tom Fox. Get your weekly filling of compliance stories with 10 for 10, a podcast produced by the Compliance Podcast Network.

  • Head of DOJ Criminal Division, Kenneth Polite to step down. (WSJ)
  • Tesla Directors settle comp suit. (Reuters)
  • KPMG caught cheating for exams again, this time in The Netherlands. (Dutch News)
  • Does Singapore have a corruption problem? (FCPA Blog)
  • Lisa Osofsky issues her final SFO report. (WSJ)
  • Teens take on corruption in Nigeria. (Teen Vogue)
  • US issues new anti-trust guidance. (FT)
  • Panama ex-President sentenced for corruption. (Reuters)
  • Sri Lanka passes ABC bill. (AL Jazeera)
  • Deutsche Bank fined yet again for AML failures. (NYT)

You can check out the Daily Compliance News for four curated compliance and ethics related stories each day, here.

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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – The Witness Interview

What are the characteristics of a good interview in the context of an internal investigation? Is there one technique you can use which will provide you the results you want to achieve? How should you think through your questions and document review prior to the investigation? At this point in time, how do such issues play out in the time of Coronavirus?
There is no one right way to prepare for and conduct an interview. What is important is that you have a plan and execute on that plan. Begin by obtaining an understanding of what the various stakeholders want answers to. This could include the Board of Directors, C-Suite executives, the GC and legal department, the CCO and compliance function or up to government regulators such as the SEC or DOJ.

Three key takeaways:

  1. There is no one right way to prepare and do an interview.
  2. The interview should not be confrontational.
  3. The interview, like the entire investigation process, is a chess match.
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Sports and Compliance

Sports and Compliance – Kyle Brasseur on Outsourcing Sports Journalism

Welcome to the Sports and Compliance podcast. For the longest time, I have wanted to have a podcast on the intersection of Sports and the World of Compliance and Ethics, both for those stories as they play out on the Sports Page and for the lessons they provide to business executives and compliance professionals. In this podcast series, I am joined by one of the top compliance commentators around, Stephen Martin, CCO at Skillsoft. Together, we will use our love of sports and competition to discuss current ethical issues in sports, look at compliance through a sports lens, and determine how the world of sports and its stories can guide the compliance professional. In today’s episode, Tom takes a solo turn behind the microphone to visit with Kyle Brasseur, EIC at Compliance Week and recovering sports journalist. The New York Times recently announced that it was outsourcing its entire sports department to the Athletic.

As Boston sports fans passionately hold their journalists accountable, Tom and Kyle discussed the implications of this shift, the importance of beat writers, and the need for well-rounded journalism skills to transition between disciplines. They also highlighted the importance of handling layoff announcements with respect and sensitivity to show those affected the necessary dignity. This conversation provides insight into the controversy of outsourcing sports journalism and its potential effects on the quality of content readers receive.

Key Highlights

·       Beat Reporting Role

·       Boston Sports Fans

·       Outsourcing Sports Journalism

·       Sports Journalism Transitions

·       Layoff Announcements

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2 Gurus Talk Compliance

2 Gurus Talk Compliance – Florida Man Moves Outside of Florida

What happens when two top compliance commentators get together? They talk compliance of course. Join Tom Fox and Kristy Grant-Hart in 2 Gurus Talk Compliance as they discuss the latest compliance issues in this week’s episode! This week on the podcast, we discussed a variety of financial fraud and corruption cases that have recently come to light. From Bank of America’s creation of millions of fake accounts to KPMG getting caught cheating in the Netherlands, these cases serve as a reminder to the importance of strong compliance programs and the need for companies to be proactive in preventing fraud. Additionally, the DOJ is utilizing data analytics to enhance their ability to prosecute FCPA cases, while Women in Compliance work to empower and support female professionals in the industry. Finally, the Florida Man Scam highlights the need to be aware of the potential for scams and to exercise caution when giving out personal information.

Highlights Include

·      Bank of America Scandal

·      Navex Survey

·      Corruption in Singapore

·      KPMG Cheating Scandal

·      Kenneth Polite Reflects

·      Lisa Osofsky Reflects

·      Women in Compliance

·      Florida Man Should Stay in FL

·      Contracts and Emojis

 

Resources 

  1. WSJ Risk and Compliance Journal
  2. FCPA Blog
  3. Radical Compliance
  4. Dutch News
  5. WSJ Risk and Compliance Journal
  6. DOJ Press Release
  7. 2023 Navex Survey
  8. Reuters
  9. Compliance Week
  10. BBC

Connect with Kristy Grant-Hart on LinkedIn

Spark Consulting

Tom 

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