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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

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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Investigative Challenges

What are some of the top challenges you may face during an investigation? Beyond the basics, a company must consider the intake process as a starting point, which Jonathan Marks noted is one of the biggest challenges. Rather surprisingly, he noted there are still companies without a hotline or anonymous reporting system, stating “We still see organizations whereby there is no formal ethics hotline except for the fact that they might send an email to some member of management or some member of the Board.”
Planning your investigation, having the right team members involved, and meeting the challenges which inevitably arise during an investigation can be difficult. However, beginning with the DOJ’s 2015 Yates Memo, the 2016 FCPA Pilot Program, and the 2017 and 2019 versions of Evaluation of Corporate Compliance Programs, together with the 2020 Update, 2023 ECCP, and FCPA Corporate Enforcement Policy, the pressure on every CCO and company to get an investigation done quickly, efficiently and, most importantly, right is even greater now. Marks has laid out a concrete way for you to think through how to plan an investigation, staff it correctly, and meet the inevitable challenges.

Three key takeaways:

  1. The intake process may seem the most straightforward but many companies drop the ball at this initial step.
  2. You must never retaliate against employees who come forward in good faith.
  3. Always think several steps ahead.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations -The Investigative Team

Since 2015, DOJ has put even more pressure on every CCO, compliance practitioner, and indeed company, to get an investigation done quickly, efficiently, and, most importantly, right. This is even more true after the U.S. Supreme Court’s decisions in Digital Realty Trust v. Somers, which limited whistleblower protection and benefits to only those whistleblowers who go to the SEC, rather than initially report internally. What do all these documents tell who should be on your investigation team?

As data collection, retention and preservation are critical elements of any significant internal investigation you will need to have the involvement of your IT function. IT can help put a litigation hold on documents that can help with the preservation of data in other areas of the organization. Further, they can assist with certain other aspects as more facts and circumstances are known.

HR is often an underutilized function for an internal investigator. HR can provide context about employees’ work history. There may be notes in HR areas as diverse as training and exit interviews. HR can also give the investigator some insight regarding the credibility of the individual who might be making the allegation. For example, are they good and trusted employees? How long have they been there? What’s their general demeanor? What’s been the feedback on that particular individual?

Forensic accountants should be a part of your investigation team. Such a skilled set team member can bring an investigative mind that drives them to answer questions about what occurred, when and how it happened, and who was involved. However, most lawyers do not understand how forensic accounting is performed and how they can assist your compliance investigation going forward.

Obviously, the GC would be involved to help protect the attorney-client privilege if for no other reason. Further, an investigation needs to have compliance involved, to understand what compliance program was in place at the time of the incident in question, what procedures submission had, and understand if this truly was a gap in the compliance function or maybe there was an area within the compliance function that was not operating as prescribed, or maybe it was a little bit weak.

 Three key takeaways:

1. HR plays a key but often underused role in internal investigations.

2. The Board of Directors and senior management have different roles.

3. Use your legal department to protect the privilege.

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FCPA Compliance Report

FCPA Compliance Report – Maria D’Avanzo on the Intersection of AI, ChatGPT and Compliance

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In the latest episode of FCPA Compliance Report, Maria D’Avanzo from Traliant returns to discuss the intersection of AI, ChatGPT, and compliance. The recent Federal Trade Commission investigation into OpenAI serves as a reminder of the importance of staying up to date on the latest developments in the field of AI technology and the potential implications of such developments. With AI and Chat GPT being powerful tools that can automate processes and generate content, organizations must implement AI Policies and Training to ensure these technologies’ safe and responsible use. AI Compliance Training is necessary to educate employees on the risks posed by AI technology and to guarantee that their compliance program is robust and effective. Organizations must create a comprehensive policy and provide ongoing training to ensure AI’s safe and responsible use.

Key Highlights:

  • AI and Chat GPT Consequences
  • AI Policy and Training
  • Creating a Policy
  • AI Compliance Training
  • FTC OpenAI Investigation

Resources:

Maria D’Avanzo on LinkedIn

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Compliance Into the Weeds

Compliance into the Weeds: BOA Enforcement Action for Bogus Accounts

The award-winning, Compliance into the Weeds is the only weekly podcast that takes a deep dive into a compliance-related topic, literally going into the weeds to explore a subject and looking for some hard-hitting insights on sanctions compliance. Look no further than Compliance into the Weeds! In this episode, Tom and Matt take up the recent CFTC enforcement action involving Bank of America.

In yet another reminder of the importance of ethical practices within the banking industry, Bank of America recently faced civil charges for misconduct, including a junk fees scheme and opening credit cards for customers without their authorization. This follows in the footsteps of similar misconduct from Wells Fargo in the mid-2010s, which resulted in a hefty $185 million fine. To address the issue, Bank of America has agreed to discontinue its flawed incentive program and develop a compliance plan within 90 days. Banks must remain vigilant in their compliance efforts, capture customer consent and documentation, and have data analytics capabilities, or risk similar fines. Furthermore, this penalty emphasizes the need for banks to keep their practices updated with regulations.

 Key Highlights 

·      Facts of enforcement action

·      BOA penalty

·      BOA remediation

·      Comparisons to Wells Fargo

·      Banks behaving badly

 Resources:

Matt Kelly

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31 Days to More Effective Compliance Programs

One Month to Better Reporting and Investigations – Selection of Investigative Counsel

Dan Dunne, in a Compliance and Ethics Professional article, entitled “Foxes and henhouses: The importance of independent counsel”, discussed what he termed a “critical element” in any investigation, which he denominated as “fair and objective evaluation.” Dunne wrote that a key component of this fair and objective evaluation is the Who question: who should supervise the investigation and who should handle the study? Dunne’s clear conclusion is that independent counsel should handle any serious investigation.

There are three reasons for a company to retain independent counsel for internal investigations of severe whistleblower complaints. First, André Agassi was right, perception is reality. Secondly, if regular outside counsel investigates their own prior legal work or legal advice, a very large and potentially messy number of loyalty and privilege issues can arise in the internal investigation. The third reason is the relationship of the regular outside counsel or law firm with regulatory authorities. If a company’s regular outside counsel performs the internal investigation and the results turn out favorably for the company, the regulators may ask if the investigation was a whitewash or at the very least, less than robust. If the SEC or DOJ cannot rely on a company’s own internal investigation, it may perform the investigation all over again with its own personnel. Further, these regulators may believe that the company, and its law firm, have engaged in a cover-up. This is certainly not the way to buy credibility.
Three key takeaways:

  1. Serious allegations demand a serious response, with seriously good lawyers leading the investigation.
  2. Credibility is the biggest thing that any person or company brings to the table when sitting across from the DOJ or SEC.
  3. The use of regular corporate counsel can negatively impact your investigation because of the issues of loyalty and privilege.

For more information, check out The Compliance Handbook, 4th edition.

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Blog

Miranda Zolot on the Distributed Workforce

As companies across the globe look to expand their workforce, many are turning to a distributed remote work model. This model has become even more popular due to the pandemic, and many companies are now more comfortable with remote work. But with this shift to a distributed workforce comes new challenges, such as how to convey culture and expectations to a worker across the globe.

Tom Fox and Miranda Zolot of Oyster, an EOR company, recently discussed this issue. Tom, an employment lawyer, and Oyster’s first employee, believes that culture is key to worker engagement and worker engagement is key to efficiency and effectiveness. He suggests that companies should be purposeful about creating a culture in a distributed environment, and Oyster has a culture of radical transparency, encouraging employees to ask hard questions publicly of the leadership. Oyster is mission-driven, with people joining the company to be part of the change, and the company works with customers to help them share information internally and add social activities and affinity groups into their work environments.

Oyster is a platform that helps customers hire talent from around the world. Customers go through their normal process for hiring and then log onto the Oyster platform to put the information for the individual in the platform and press Go. Oyster provides a contract for the individual to sign, gets them signed up for benefits, and automates the process in the bulk of countries where they operate. The company also offers HR consulting to help customers understand what they’re looking for and suggest where they might look for that talent. Oyster’s website provides information on labor laws, salary ranges, and leaves required in different countries. In the US, employers have to deal with about 60 to 70 jurisdictions, while in the international arena, things are different with worker’s protections, works councils, guaranteed bonuses, and benefits.

Zolot, an employment lawyer who has worked in law firms and in-house for clients from the hospitality industry, steel manufacturers, potato chip manufacturers, and retail, as noted, is the General Counsel. She and Tom translate complex employment laws into a common language. Oyster’s mission is to bring meaningful work to people in different geographies, and the website offers resources for people looking for remote work and companies looking to hire remotely. Oyster Academy offers remote best practices and helps people present themselves to the market as ready for remote work, and the company also offers a misclassification analyzer, salary information, country guides, and open policies and handbooks. Oyster’s website and LinkedIn page have resources and information about remote work.

Cross-border hiring is becoming more popular due to market forces. Companies are looking for ways to hire workers at a lower cost than in the US or UK, and workers are excited to work for a higher salary than they would make in their local market. With Oyster, companies can navigate country labor laws by providing information on law changes and benefits. This helps companies save money while still finding quality talent.

In conclusion, the current distributed model of remote work is becoming more popular, and companies need to be aware of the challenges that come with it. Tom and Miranda believe that culture is key to worker engagement, and companies should be purposeful about creating a culture in a distributed environment. Oyster offers resources to people looking for remote work and companies looking to hire remotely, and the company helps customers navigate country labor laws by providing information on law changes and benefits. With the help of Oyster, companies can find the right workers for their particular job in a compliant and cost-effective way.

For the compliance professional, the critical element will be conveying your corporate culture to those who may live and work in countries outside your home base of operations. Moreover, you must both write policies and procedures for such employees and then train and monitor their compliance with those said policies and procedures. The distributed workforce is here to stay. Are you ready now for it? If not, how, when, and where will you get ready? The clock is ticking.