Tag: compliance

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The Week That Was in Compliance – The ECCP: Part 4 – Final Thoughts

In addition to the speeches presented at the ABA’s 38th Annual National Institute on White Collar Crime, by Deputy Attorney General Lisa Monaco (2023 Monaco Speech) and Assistant Attorney General Kenneth A. Polite (Polite Speech); there was the release of the 2023 U.S. Department of Justice Criminal Division Evaluation of Corporate Compliance Programs (ECCP). Today we will conclude our multi-part review of this document by some of the other key changes and additions to the document and what it all means for the compliance professional going forward.

 Use of Monitors

In the introduction its states, “Moreover, Criminal Division policies on monitor selection instruct prosecutors to consider, at the time of the resolution, whether the corporation has made significant investments in, and improvements to, its corporate compliance program and internal controls systems and whether remedial improvements to the compliance program and internal controls have been tested to demonstrate that they would prevent or detect similar misconduct in the future to determine whether a monitor is appropriate.” This language is a firm reject of the Benzkowski Memo and the prior administration’s reticence to employ monitorships as a tool to ensure compliance with not only the settlement documents but also the creation and implementation of a compliance program.

Internal Compliance Controls

Under Section II, entitled “Is the Corporation’s Compliance Program Adequately Resourced and Empowered to Function Effectively?”, is the new language, “In this regard, prosecutors should evaluate a corporation’s method for assessing and addressing applicable risks and designing appropriate controls to manage these risks.” This simple sentence packs quite a wallop as it mandates a risk assessment, design and implementation of appropriate internal compliance controls and then monitoring of those controls to see if they are managing the risks identified in the risk assessment. Many of these concepts are fleshed out in the ECCP but it is clear this is a minimum expectation from the Department of Justice (DOJ).

Adequate Compensation and Salary/Bonus Review for Compliance

Under Section III, “Does Your Compliance Program Work in Practice”, is the following new language: “Independence and Empowerment – Is compensation for employees who are responsible for investigating and adjudicating misconduct structured in a way that ensures the compliance team is empowered to enforce the policies and ethical values of the company? Who determines the compensation, including bonuses, as well as discipline and promotion of compliance personnel or others within the organization that have a role in the disciplinary process generally?”

This is a significant new addition to the ECCP. It forces a company to adequately compensate those employees who investigate and pass judgment on misconduct. But it is more than simply adequate compensation as it also requires a company not to retaliate via low salaries or limited raises or other compensation for doing their jobs as compliance officers. In other words, if the Chief Executive Officer (CEO) is being investigated by compliance; that same CEO should not be setting or reviewing the salary of the Chief Compliance Officer (CCO) or those doing the investigation. This mandates that the DOJ will review the entire corporate organization on these issues.

Final Thoughts

This brings us to the end of a series of momentous announcements by the DOJ. While we have not discussed the changes in monitor selection announced by Polite as it largely deals with internal DOJ process, we would note that it will require a more lengthy and rigorous request process for those prosecutors’ seeking monitors, as well as a review process up to perhaps even the DAG. This alone could lengthen out an entire Foreign Corrupt Practices Act (FCPA) enforcement action.

The incentives language, both financial and non-financial, will require a much deeper analysis by a corporate compliance program in the areas of compensation, as well as promotion, than has even been mandated. The first thing I would do as a CCO is go down the hall to speak with the head of Human Resources (HR) to get an understanding of how compensation is based and what factors of doing business ethically and in compliance are reviewed for both salary and discretionary bonus amounts. The same would hold true for promotion into both middle and senior management. All of these will need to have metrics or other auditable frameworks around them so they can be reviewed, tested and data presented to the regulators if they come knocking.

The language around messaging apps needs to be taken to heart by not simply the compliance function but all senior level executives. While the Securities and Exchange Commission (SEC) has garnered the most publicity for its fines levied on regulated industries, the new language of the ECCP makes clear the DOJ is equally concerned about this issue. Woe be it to any company which finds itself in a FCPA investigation or enforcement action where said company does not meet these DOJ requirements. The DOJ will most probably assume a willful failure to meet the strictures of the 2023 ECCP.

Obviously, the Biden Administration DOJ is stepping away from some of the initiatives of the Trump Administration DOJ. However, in other areas this DOJ is building on some of the steps of the prior administration. It is clear the DOJ is continuing to evolve in its thinking about what constitutes a best practices compliance program and will continue to do so. Compliance professionals will need to study these new initiatives and implement their requirements.

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Compliance Into the Weeds

Beneath the Bailout: The Collapse of Silicon Valley Bank

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. In this episode, Matt and I explore the collapse of Silicon Valley Bank (SBV) and its outcomes. We discuss the consequences if the Federal government fails to bail out Signature Bank in New York and Silicon Valley Bank. The Dodd-Frank Act is examined, and noting that the SBV Chief Risk Officer left 8 months ago and was never replaced is a huge red flag. Will this event cause the Federal Reserve will pause interest rate hikes? Why did Libertarians from the tech industry scream for bailouts? Tom and Matt expertly unpack the complex details within the industry and provide insight and analysis into this relevant and timely industry topic.

 Key Highlights

The Impact of Silicon Bank and SBV’s Failures on the Banking Industry [02:01]

Implications of Unsold Silicon Valley Bank Assets on Taxpayers [05:04]

Challenge of Businesses Dealing with Employee Benefits under Federal Government Regulations [09:04]

Effects of Changes to the Dodd-Frank Act on Midsized Banks [12:54]

The Impact of Regulatory Ease on Business Failures [16:47]

The Reasons Behind Silicon Valley Bank’s Chief Risk Officer Quitting [20:53]

The Impact of Social Media on Interest Rate Decisions by the Federal Reserve [24:52]

 Notable Quotes:

1.     “So those loans brought in maybe 2 or 3 percent interest, but SVP had to pay out interest rates that might be more at 4 percent. That difference undermined the capital structure and the balance sheet of SVB until people started getting skittish, and then they said, Maybe I should pull my money out, which made the bank even more weak, so people got even more skittish.”

2.     “The big issue, which is why the business customer angle is important, is that under FDIC rules, a bank’s deposits are insured up to 250,000 dollars per account.”

3.     “Is it a business if you can never fail? This was not too big to fail. This was we are not going to let anybody fail.”

4.    ” You may not know where your key suppliers, customers, or key third parties are banking. Maybe you have that information. But does that mean you’re going to have to assess the financial health of those financial institutions of your customers? And know if they can pay you for your vendors or third-party suppliers. They can meet their payroll to deliver their services.”

 Resources

Matt  on LinkedIn

Tom on LinkedIn

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31 Days to More Effective Compliance Programs

One Month to More Effective Compliance for business – Pre-acquisition Due Diligence in Mergers and Acquisitions

A company that does not perform adequate due diligence before a merger or acquisition may face legal and business risks. Perhaps most commonly, inadequate due diligence can allow a course of bribery to continue – with all the attendant harms to a business’s profitability and reputation and potential civil and criminal liability. While most compliance practitioners have been long aware of the requirement in the post-acquisition context, the FCPA Resource Guide, 2nd edition, focused many compliance practitioners on the need to engage in robust pre-acquisition due diligence.

The 2020 Update made the need for a robust compliance presence in the pre-acquisition phase even more apparent. It stated, “A well-designed compliance program should include comprehensive due diligence of any acquisition targets, as well as a process for timely and orderly integration of the acquired entity into existing compliance program structures and internal controls. Pre-M&A due diligence, where possible, enables the acquiring company to evaluate each target’s value and negotiate for the costs of any corruption or misconduct to be borne by the target. Flawed or incomplete pre- or post-acquisition due diligence and integration can allow misconduct to continue at the target company, causing harm to a business’s profitability and reputation and risking civil and criminal liability.”

Multiple red flags could be raised in this process, which might warrant further investigation. They include if the target has ineffective compliance program elements in their compliance program or if there were frequent breaches of policies and procedures. A target that is in financial difficulty would bear closer scrutiny. Structurally, this could present issues if the company did not have a formal ethics and compliance committee at the senior management or Board of Directors’ level. From the CCO perspective, if the position did not have Board or CEO access or had no regular reports, it could present an issue for compliance. Conversely, if there were frequent requests to waive policies, management override of compliance controls, or no consistent consequence management for violations, it could present clear red flags for further investigation.

Three key takeaways: 

  1. Your pre-acquisition due diligence results will inform your post-acquisition integration and remediation going forward.
  2. Periodically review your M&A due diligence protocol.
  3. If red flags appear in pre-acquisition due diligence, they should be cleared.
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2 Gurus Talk Compliance

2 Gurus Talk Compliance – Episode 1

What happens when two top compliance commentators get together? They talk compliance, of course. Join Kristy Grant-Hart and Tom Fox for their new podcast, 2 Gurus Talk Compliance! But it is not simply Kristy and Tom talking about compliance. In this podcast series, Kristy and Tom also review other top commentators in compliance. In this podcast, we will consider all things compliance, corporate ethics, ESG, governance, and whatever else is on our minds and the minds of other experts in the field. Kristy and Tom explore all of these topics with expertise and wit.

In this inaugural episode, they discuss the latest compliance trends and news, including two Supreme Court cases that have implications for the compliance profession. They also cover the Department of Justice and whistleblower trends, taking a look at Miranda and Upjohn’s warnings and increasing numbers of whistleblower reports to the SEC. They also dive into an article from the Harvard Law School Forum on corporate governance and discuss the Illinois Biometric law. Join the conversation and discover the latest on compliance and regulations with 2 Gurus Talk Compliance.

Highlights Include

The Role of In-House Attorneys in Communication Between Outside Counsel and Businesses [00:05:17]

Supreme Court Decision on the Future of the CFPB [00:09:11]

Impact of the Colorado Draft Regulation on Artificial Intelligence Compliance Programs [00:13:23]

The Benefits of Automated Data Deletion [00:17:23]

A Miranda component to corporate Upjohn Warnings [00:21:25]

The Obligation of Society to Address Climate Change [00:25:33]

The Benefits of Self-Disclosure in the DOJ Justice System [00:29:18]

The Role of the Board in Overseeing Third Parties in High-Risk Countries [00:33:14]

The Impact of Whistleblowers on the SEC [00:40:54]

White Castle’s Violation of Illinois Biometric Law [00:45:05]

Notable Quotes

  1. The DOJ is urging a federal judge to sanction Google’s parent, Alphabet, for its practice of setting employee chats to auto delete despite promising to preserve records.”
  2. “It goes beyond the specifics of this law, something you and I have talked about for several years now, that the compliance function and the CCO is well perhaps the most well-suited corporate discipline to deal with these new initiatives because it’s the basic framework of compliance that you and I have worked with for 15 years.”
  3. “Most compliance programs just don’t have good frameworks for things like AI or for big data even though we’ve been using that word for a long time.”

Resources

  1. Boards and 3rd Party Risk Oversight
  2. CO Draft AI Rules for Insurance
  3. Miranda Warnings in Corp Investigation
  4. Current whistleblowing landscape
  5. Has the stature of the CCO changed? 
  6. Analysis of the DOJ’s update to the self-disclosure program
  7. Supreme Court considering defunding the CFTC
  8. Trends in state privacy law   
  9. Litigation holds and records retention/Google/DOJ  
  10. Individuals charged – first enforcement action 2023 

Connect with Kristy Grant-Hart on LinkedIn

Spark Consulting

Connect with Tom Fox on Linkedin

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31 Days to More Effective Compliance Programs

One Month to More Effective Compliance for Business Ventures – Auditing Joint Ventures

JVs provide many FCPA risks that other types of business relationships do not bring. For instance, the JV may interact with foreign government officials or employees of a state-owned enterprise; then leverage those relationships for an improper benefit relating to contracts, regulatory licenses, permits or customs approvals. It is difficult to regulate a JVs interaction with foreign government officials when your partner is a state-owned enterprise, or where your company is relying on the local company for its local contacts and expertise for business development and/or regulatory knowledge and experience.

The risks are compounded when the U.S. company does not exercise control of the JV. This is further compounded by the fact there is no minimum threshold for a FCPA enforcement action against a U.S. company for the actions of a JV in which it holds an interest. If a company holds something less than majority rights, it must to urge, beg and plead for the majority partner to adhere to anti-corruption compliance standards and controls. Often, these requirements are established in the JV agreement but the success in securing such contract protections depends on the importance of the global company to the JV itself.

Another set of issues comes from the JV when it seeks to retain third-party agents and/or distributors. Depending on the amount of control, the U.S. company usually can impose its set of standards for conducting due diligence of third-party agents and distributors. These risks become more difficult when the JV partner brings a proposed third-party agent or distributor and vouches for the agent or distributor. If the JV partner is a state-owned enterprise, the issues become even more complicated as such a referral creates an obvious red flag for a government-sponsored referral.

Three key takeaways: 

  1. JVs present unique FCPA risks and must be managed accordingly.
  2. Your final report needs to consider the final viewer of the document, potentially the DOJ or SEC.
  3. Be sure to follow up on any red flags raised but not cleared and action items for remediation or additional scrutiny.
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Great Women in Compliance

Krista Muszak – She’s Simply the Best

Welcome to the Great Women in Compliance Podcast, hosted by Mary Shirley and Lisa Fine. It’s fitting that for this International Women’s Day that we feature one of the brightest sparks in the Ethics and Compliance space, Krista Muszak.

It can be difficult to change industries in Compliance. Some organizations look for exact industry experience and pigeonhole individuals into one track of practice. Krista is someone who manages to transition between industries with ease and offers her tips for doing so.

 She shares a bit about what it’s like to focus on SOX Compliance, as she did in her previous role and now on Mergers and Acquisitions risk, which she is doing now. Congratulations to Krista on her new role!

Mary’s favorite part of this episode is when Krista talks about who she admires (spoiler alert, it’s one of the GWIC team), closely followed by a fabulous and innovative idea Krista shares to help sales folk look at Compliance from another angle that also serves the purpose of acting as a gap analysis for Compliance. You’ll want to listen to this episode to be inspired by and leverage from Krista’s creative brilliance.

 Lisa and Mary wish everyone an amazing International Women’s Day. We are pleased to recognize our peers for your fierce and formidable accomplishments. Keep shining!

The Great Women in Compliance Podcast is on the Compliance Podcast Network with a selection of other Compliance related offerings to listen in to.  If you are enjoying this episode, please rate it on your preferred podcast player to help other likeminded Ethics and Compliance professionals find it.  If you have a moment to leave a review at the same time, Mary and Lisa would be so grateful.  You can also find the GWIC podcast on Corporate Compliance Insights where Lisa and Mary have a landing page with additional information about them and the story of the podcast.  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).

If you enjoyed the book, the GWIC team would be very grateful if you would consider rating it on Goodreads and Amazon and leaving a short review.  Don’t forget to send the elevator back down by passing on your copy to someone who you think might enjoy reading it when you’re done, or if you can’t bear parting with your copy, consider it as a holiday or appreciation gift for someone in Compliance who deserves a treat.

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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SBR - Authors' Podcast

Keith Read – An Unconventional Compliance Officer

Welcome to the Sunday Book Review, the Authors Podcast! On this episode, Tom welcomes special guest Keith Read, former Chief Compliance Officer at British Telecom and author of The Unconventional Compliance Officer. Keith discusses how effective measures can be taken to improve compliance within a given company, even when it comes to hard issues like GDPR, conflicts of interest, and more. He emphasizes the importance of utilizing data in compliance and reminds companies to look at the outcomes and not just inputs. He claims his book to be a wealth of resources for better understanding compliance and explains that it can be found on multiple digital marketplaces. Join Tom Fox as he dives deep into the world of compliance with Keith Read and his groundbreaking book.

Key Highlights Include

  • The Benefits of Applying Behavioral Psychology in Business [00:03:53]
  • Accessibility of Customer Hotlines [00:07:32]
  • EU Anti-Retaliation Policy for GDPR [00:11:15]
  • Shifting Focus from Inputs to Outcomes [00:15:12]
  • Exploring Positive Conflicts of Interest in the 21st Century [00:18:52]
  • Role of Data & Compliance in Modern Business Practices [00:22:49]
  • The Benefits of Data Analysis for Companies [00:26:32]

Notable Quotes

  1. “We had 99 percent of people trained on anti-corruption compliance.”
  2. “What I spend a lot of time doing is how can you turn that push into pull?”
  3. “Everybody sees conflicts of interest as negative. I mean, maybe that’s an overstatement, but if somebody suddenly sends you an email to say, we won’t report your, you know, any conflict of interest and so on. It’s, again, it’s another example of compliance push.”
  4. “What I call is the corporate shield. It was the exercises. It’s more than it’s the exercise I developed. Which was to say, you know, you could do a very quick and dirty analysis of how risk has changed.”

Resources

The Unconventional Compliance Officer

Keith Read on LinkedIn

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Blog

The Week That Was in Compliance – The Polite Speech: Part 1

We are in the midst of a multipart review of last week’s speeches from the Department of Justice (DOJ) at the recently concluded ABA’s 38th Annual National Institute on White Collar Crime, held in Miami. Compliance professionals, white collar defense lawyers and indeed corporate executives will be talking about the past week in Miami for many moons to come. The speeches were made by Deputy Attorney General Lisa Monaco (2023 Monaco Speech) and Assistant Attorney General Kenneth A. Polite (Polite Speech) and they previewed a number of initiatives by the DOJ which every compliance professional will need to study in some detail. These new initiatives included:

The Criminal Division’s Pilot Program Regarding Compensation Incentives and Clawbacks

Evaluation of Corporate Compliance Programs (Updated March 2023)

Revised Memorandum on Selection of Monitors in Criminal Division Matters

Over this series, I will be taking a deep dive into these speeches and new Evaluation of Corporate Compliance Program, Monitor Selection and Pilot Program on Incentives and Clawbacks. Today we continue with an initial review of the Polite Speech.

Polite began with a clear plea for the righteousness of being a prosecutor. Interestingly he began by describing what he saw at the ABA White Collar conference in San Francisco, “During a short afternoon walk between the hotel and the U.S. Attorney’s Office, we saw homelessness, and drug addiction, and food insecurity, and lack of hygiene, and violence.” He went on to add “Human suffering. We see it in every city where this conference gathers, be it the Tenderloin area of San Francisco, Liberty City here in Miami, or the Lower Ninth Ward in New Orleans. The same things could be found in nearly every town across this country. Across this globe. Right outside. Right around us. Right around you, if you decide to open your eyes and accept a broader definition of community.” From there he related being a DOJ prosecutor to a calling to help fix these problems but being “problem-solvers”.

He used these domestic urban ills to transition to what he called a ‘righteous’ prosecution of Claudia Patricia Diaz Guillen, the former National Treasurer of Venezuela and her husband. They were charged with accepting over $100 million “in bribes from a Venezuelan billionaire businessman for access to purchase bonds from the Venezuela National Treasury at a favorable exchange rate. All the while, millions of Venezuelans had to confront daily economic crisis, rampant inflation, and unimaginable poverty and hunger.” This is while “96% of Venezuelans lived in poverty.” He ended this section by noting the prosecution was “a virtuous case that spanned the globe to hold multiple corrupt actors accountable and remove corrupt leadership – this prosecution exemplifies what our prosecutors can do.”

Polite believes that there is a clear tie between poverty and corruption. (One reason the San Francisco remarks were so interesting.) This is why it is important to prosecute corrupt government officials such as Diaz because her actions keep the people of Venezuela in such dire economic straits. He stated, “Just as crime recognizes no borders, our efforts to combat it must be equally boundless. We need our partners – both domestic and international – to solve community problems. That is where the Criminal Division thrives.” In the Diaz case there was international cooperation at various levels. Think about that for a moment, the US and Venezuelan governments cooperating on anything, yet they apparently did cooperate on this matter. Polite added that several recent Foreign Corrupt Practices Act (FCPA) corporate enforcement matters, “Glencore, ABB, Danske, and Stericycle, among many others, underscore the successes that we’ve shared with our colleagues abroad.”

To be truly effective community problem-solvers, we have to broaden our sense of community by literally ‘spanning the globe’ to fight crime, including bribery and corruption. Polite stated, “Crime does not limit itself by country or region. Corruption’s corrosive effects are global, with the world’s poor often bearing the brunt. Bribery threatens our collective security by undermining the rule of law and providing a breeding ground for other crime and authoritarian rule.”

He pointed to this level of international cooperation which “has also been critical to MLARS’s work on the Kleptocracy Asset Recovery Initiative, which has targeted and restrained more than $3.6 billion relating to foreign official corruption and associated money laundering affecting the U.S. financial system.” As the US financial systems plays the central role in the world’s financial community and international banking system, the US MLARS Bank Integrity Unit (BIU) has worked to bring to justice “actors around the world seek to exploit the U.S. financial system, in some instances working with global financial institutions that facilitate their crimes.” Hence why the US and not Danske Bank’s home country of Denmark brought the criminal charges against the Banks for its role in a years-long money laundering operation out of its Estonia branch.

To demonstrate this commitment for the DOJ Polite stated, “since 2010, the BIU – with just 12 attorneys – has imposed more than $13 billion in financial penalties in 10 corporate criminal resolutions with global financial institutions for sanctions violations.” But more commitment is on the way as Polite pointed to “our Deputy Attorney General’s announcement yesterday of additional resources for the BIU and her focus on the intersection of national security and corporate prosecution. I know our BIU prosecutors will build upon their outstanding track record while continuing to work shoulder to shoulder with our partners in the National Security Division to achieve our united mission.”

Finally, in a most welcomed development, Polite stated “there’s no better way to broaden community than to speak your partners’ language – literally.” He announced the Criminal Division’s Office of Prosecutorial Development, Assistance, and Training – or OPDAT – will re-issue the FCPA Resource Guide in Spanish later this month. Kudos to the DOJ for taking this step.

Join me tomorrow where I take a deep dive into clawbacks and other new components of a compliance program.

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Blog

The Week That Was in Compliance – The Monaco Speech

In the ‘60s there was a television show called That Was the Week That Was. As with many great US television shows, it started in the UK on the BBC. It ran on NBC and introduced an American audience to David Frost, from the original British cast. It brought weekly and topical satire to US television and some of the contributors were among the greatest comedians of their generation. They included Henry Morgan, Phyllis Newman, Pat Englund, Buck Henry, Bob Dishy, Doro Merande, Alan Alda, Sandy Baron, Tom Bosley, Jerry Damon, Stanley Grover, Burr Tillstrom’s Puppets and The Norman Paris Orchestra. I still remember the theme song as it was sung by Nancy Ames in addition to her participating in the show.

I thought of that TV show when I looked back at the two days of speeches from the Department of Justice (DOJ) at the recent ABA 38th Annual National Institute on White Collar Crime, held in Miami. Compliance professionals, white collar defense lawyers and indeed corporate executives will be talking about the past week for many moons to come. The speeches were made by Deputy Attorney General (DAG) Lisa Monaco (2023 Monaco Speech) and Assistant Attorney General Kenneth A. Polite, Jr. (Polite Speech) and they previewed a number of initiatives by the DOJ which every compliance professional needs to study in some detail. These new initiatives included:

The Criminal Division’s Pilot Program Regarding Compensation Incentives and Clawbacks

Evaluation of Corporate Compliance Programs (Updated March 2023)

Revised Memorandum on Selection of Monitors in Criminal Division Matters

Over the next several blog posts, I will be taking a deep dive into these speeches and the new Evaluation of Corporate Compliance Program, Monitor Selection and Pilot Program on Incentives and Clawbacks. Today we begin with a review of the 2023 Monaco Speech.

Monaco began by referencing her October 2012 speech to the Fall White Collar Crime conference, noting she “directed some immediate policy changes to invigorate corporate criminal enforcement, and I did so based on a few fundamental principles: preventing misconduct before it happens; holding individual wrongdoers accountable; and deterring and punishing recidivism.”

Around that time Monaco announced the “Corporate Crime Advisory Group to recommend more advances, based on input, and this is important, input from outside as well as inside the department.” This led to the September 2022 announcement of the Monaco Doctrine as laid out in the Monaco Memo where the DOJ changed its focus to “promoting cultures of corporate compliance, while also ensuring consistency and predictability in the way the government treats corporate crime.” Her goal was to “empower companies to do the right thing, by investing in compliance, in culture and in good corporate citizenship — while at the same time empowering our prosecutors to hold accountable those who don’t follow the law.”

At the end of the day, perhaps the most significant pronouncement from Monaco was the following “in today’s complex and uncertain geopolitical – very uncertain quite frankly – geopolitical environment, corporate crime and national security are overlapping to a degree never seen before, and the department is retooling to meet that challenge.” This fits with the Biden Administration’s Strategy on Combatting Corruption, which elevated the fight against bribery and corruption through enforcement of laws such as the Foreign Corrupt Practices Act (FCPA) to a National Security Issue. Of course, the Biden DOJ has said several times in the past that “Sanctions are the new FCPA” and Monaco reiterated that in her speech last week.

Monaco set the tone for the week by identifying five general areas of DOJ focus. (1) Inspiring a Culture of Compliance; (2) Voluntary Self-Disclosure Programs; (3) Promoting Compliance through Compensation and Clawback Programs; (4) Resource Commitments to Corporate Criminal Enforcement; and (5 ) Individual Accountability.

  1. A Culture of Compliance

The Monaco Memo “emphasized the department’s commitment to finding the right incentives to promote and support a culture of corporate compliance.” Monaco hoped to do so by creating two new areas of focus in addition to those laid out in the FCPA Resource Guide,  the 2017 Evaluation of Corporate Compliance Program and its 2020 Update and Chief Compliance Officer (CCO) certification requirement. In the 2023 Monaco Speech, she stated, “I noted two new areas of particular focus: a cross-department approach to promoting voluntary self-disclosure and how compensation structures can foster responsible corporate behavior. We want companies to step up and own up when they discover misconduct and to use compensation systems to align their executives’ financial interests with the company’s interest in good corporate citizenship.”

What is interesting about these two components is that they previously existed but were made more important in the Monaco Memo. Clear rewards for self-disclosure have been a part of FCPA enforcement since 2016 with the initiation of the Pilot Program around self-disclosure. Financial incentives and penalties (carrots and sticks) have been a part of best practices compliance programs since at least 2004 and were included in the original 2012 FCPA Resource Guide. But now a company must engage in both actions to demonstrate a “culture of compliance” to obtain the presumption of a declination under the Corporate Enforcement Policy.

  1. Voluntary Self-Disclosure

Seemingly buried in the speech is perhaps the most significant statement about white collar criminal enforcement. Monaco said, “Now, with respect to voluntary self-disclosure, I am pleased to report that, for the first time, every U.S. Attorney’s Office now has, and every component I should say, that prosecutes corporate crime, now has in place an operative, predictable and transparent voluntary self-disclosure program. These policies share a common principle: absent aggravating factors, no department component will seek a guilty plea where a company has voluntarily self-disclosed, cooperated and remediated the misconduct.” She went on to add, “Let me be very very clear. I want every general counsel, every executive and board member to take this message to heart: where your company discovers criminal misconduct, the pathway to the best resolution will involve prompt voluntary self-disclosure to the Department of Justice.” Her example was an excellent one: the ABB FCPA enforcement action.

  1. Compensation and Clawbacks

Once again Monaco emphasized a part of every best practices compliance program over the past 20 years, financial incentives for doing business ethically and in compliance. However, in her 2023 Speech, she emphasized the disincentives or clawbacks. She stated, “First, every corporate resolution involving the Criminal Division will now include a requirement that the resolving company develop compliance-promoting criteria within its compensation and bonus system…Second, under the pilot program, the Criminal Division will provide fine reductions to companies who seek to claw back compensation from corporate wrongdoers.”

Monaco said the goal is “to shift the burden of corporate wrongdoing away from shareholders, who frequently play no role in the misconduct, onto those directly responsible.” The DOJ will incentivize such behavior in the following manner. “At the outset of a criminal resolution, the resolving company will pay the applicable fine, minus a reserved credit equaling the amount of compensation the company is attempting to claw back from culpable executives and employees. If the company succeeds and recoups compensation from a responsible employee, the company gets to keep that clawback money — and also doesn’t have to pay the amount it recovered.  And because we heard from stakeholders about how challenging and how expensive the pursuit of clawbacks can be, the pilot program will also ensure that those who pursue clawbacks in good faith but are unsuccessful are still eligible to receive a fine reduction.”

  1. Resource Commitments

This section of the speech deals with DOJ resource commitments but it is still significant. Here Monaco emphasized the intersection of corruption, money-laundering, sanctions and National Security. This continues the Biden Administration trend on this score. There are new and additional resources the DOJ is bringing to bear in all of these areas. This includes the international arena as well. But a huge part of this commitment is that companies are now seen in many ways as the front line of criminal enforcement through self-disclosure of illegal conduct. If the DOJ continues down this path, both the incentives for self-disclosure and cooperation as well as the pain the DOJ will bring for companies which do self-disclose will be significant.  Monaco closed her speech with the following, “Investing now in a robust compliance program is good for business, and it is good for our collective economic and national security.”

  1. Individual Accountability

As far back as 2015, in the Yates Memo, the DOJ has said they will emphasize individual accountability, through individual, as opposed to corporate, enforcement actions. In her speech, Monaco pointed to charges brought against two of the current most prominent alleged fraudsters, Sam Bankman-Fried and Carlos Watson and the convictions out of Theranos; Elizabeth Homes and Sunny Balwani. She also stated, “The Criminal Division’s Fraud Section, for example, secured more individual convictions at trial last year than in any of the previous five years.  So, our message is clear: the department will zealously pursue corporate crime in any industry, and we will hold wrongdoers accountable, no matter how prominent or powerful they are.” While this has yet not been seen in FCPA enforcement, perhaps it will be this year and beyond.

Join me tomorrow where I look at the Polite Speech.

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FCPA Compliance Report

Egle Karalyte on Creating a Brand for the World

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, I am joined by Egle Karalyte, founder and CEO of Karalyte. Tom and Egle discussed branding in the corporate world. Egle explained that a brand is an expression and system that encapsulates services, products, and values that customers will resonate with going forward. A successful UX strategy can keep customers coming back for more. The conversation then shifted toward discussing how different branding rules apply to products and services. Egle discusses how the Metaverse is taking UX to new heights and why this benefits companies and customers.

Key Highlights

·      Developing a Brand: A Systematic Approach [00:05:01]

·      Branding Services vs. Products in Adobe [00:09:37]

·      The Benefits of an Improved User Experience (UX) [00:14:04]

·      The Benefits of Virtual Reality Gaming with Karalyte[00:18:55]

Notable Quotes

1. “For me, a brand is really kind of a certain belief system that is packaged into a certain package that also kind of incorporates a product, reach of service, and really consolidates everything that the customer would resonate with.”

2. “I’ve developed a system where I go through every client, a methodology where we look into the branch world from all possible angles.”

3. “It’s like falling in love. Like, you have to have certain elements in place that would then trigger the spark. So it’s the same thing with a brand. Like, the brand needs to get its foundational elements in place so that people, when they discover it, they really kind of fall in love with the brand and with the product, and then the advocacy, you know, becomes natural because when we find what we like, we simply just naturally want to share it with people.”

4. “Good UX definitely helps to make people interested in what we have to offer. When we discover a brand online and come to the website, how we experience the website will determine whether the brand will hook us in or not.”

 Episode Links

Karalyte

Connect with Egle Karalyte on LinkedIn

Connect with Tom Fox on LinkedIn