In this podcast, I am joined by AMI Managing Director Donald K. Stern. In this episode, we look at some case studies. Case studies are something every lawyer and compliance practitioner responds to because it presents real facts and events that the corporate compliance discipline can learn from and, hopefully, incorporate these lessons learned into their organizations.
Stern believes, “it does lend some support. The organization under investigation not only has the right instincts, motivations and goals but it intends to fix the problem.” He believes they do “not expect you to assess every conceivable possibility and turn over every possible rock to interview every employee that might be involved. They want you to take a more risk based focused view on where you see the problems. The best way to do that is not by looking to people internally whose livelihood depends upon getting a paycheck every other week or every month from the company, but the people who were outside the company and who have some measure of independence.”
It is about the data and the metrics you use to reach your conclusions. This is because prosecutors are becoming much more sophisticated in their understanding of what constitutes a best practices compliance program. Stern noted that in areas as diverse as the FCPA or health care fraud not just the federal government, but state governments and now increasingly local governments, are really asking the right questions. They want to know, “what makes a good compliance program and what assurances do we have that if we give you a break in this case that you’re actually going to end up at the end?” The government wants corporations to be good corporate citizens and third-party independent monitors can help provide that assurance.
Tag: Don Stern
In this podcast I am joined by AMI Managing Director Don Stern. We consider how defense counsel can work proactively with independent monitors to help clients who may have sustained an ethical or compliance violation or are under government scrutiny for allegations of illegal misconduct in a wide variety of industries, disciplines and corporate settings. In this episode, take a deep dive into the nuts and bolts of defense counsel working with a third-part independent monitor.
We began by exploring some basic questions around the attorney/client privilege, which belongs to the client and not the lawyer. Further, if a third-party independent monitor is retained by corporate legal to perform an assessment or review, it can be done under attorney/client privilege. It designed to give the company maximum information and flexibility to not have people being concerned about the information flow. It puts company’s in a position to make a decision on the possible self-disclosure. Not every issue needs to be self-reported nor does the government want to hear about every issue.
Stern emphasized that the privilege provides a company with the ability to self-disclose and, in some cases, to protect that information at least initially without worrying about being sued by private parties or class actions are securities cases. It allows an organization to “get an unvarnished view of the facts by an outsider or it goes to the lawyer who can assess it and discuss it with the client and then make a decision.” It allows you to explore such questions as: Do we need to report it? Should we report it? How should it be reported?” It can be a very powerful tool.
The bottom line is that companies cannot simply bring in a third-party independent, get a report or findings and then put their head in the sand. Stern believes being proactive means not simply bringing in an independent third-party but also using the information developed in a proactive manner. He said, “It is being aggressively proactive in fixing your problems. It is being as transparent as possible within that particular company’s environment. Identifying and fixing the problems, not only builds confidence internally within but provides assurance to the outside world; to shareholders, the media and government regulators that you are identifying your problems and fixing them yourself. This is the way to go.”
In this episode, I am joined by AMI Managing Director Don Stern. We introduce the concept of defense counsel working with independent monitors. Stern began by noting that traditionally defense lawyers were very wary about getting compliance professionals engaged and involved in assessing a company’s compliance plan in the midst of an investigation. They tended to focus on such criteria when an investigation is active, the overall investigation. Moreover, initially the government wanted companies to wait until an investigation was over before a company would begin to fix things. However, those days have long since passed. Stern said, “at this point, the worst thing that a defense lawyer can do is to sit back, wait for the investigation to complete either their own internal investigation or the government’s investigation and then say to the government, well now we’re going to fix things. I think it’s important to get in there as quickly as possible.”
There are then multiple reasons for defense counsel, whose primary role is to defend an individual or organization. Stern ended by concluding, “the government has become much more sophisticated in assessing compliance programs. It used to be that you can simply present the policies, procedures and some metrics and the prosecutors or the regulators would nod their head and say you’ve got a very good program. But that is not anymore. They want an on the ground assessment as to whether it’s really working and whether people take it seriously.” The bottom line is that the “best way to do that in my view is having a third-party independent come in and do that work.”
Join us in next week where we dive into the weeds by looking at the nuts and bolts of working with a third-party independent monitor.
Find out more about Affiliated Monitors Inc. by checking out their website here.
Welcome to the newest addition to the Compliance Podcast Network, Compliance and Coronavirus. In this episode, I visit with Don Stern who is Managing Director of Corporate Monitoring & Consulting Services. In this role, Stern oversees the company’s corporate monitoring programs across a spectrum of industries: corporate, healthcare, financial services, environmental and others. Stern is the former United States Attorney for the District of Massachusetts. We discuss how the enforcement agencies such as the Department of Justice, Securities and Exchange Commission and US Attorneys are responding to the pandemic and in particular any crimes, fraud and financial abuses arising out of the crisis.
Some of the highlights include:
- What are some of the key government initiatives during Covid-19?
- What will be the cadence of enforcement during the summer of 2020 and through the rest of the year?
- Has self-reporting become even more important during Covid-19?
For me information check out the Affiliated Monitors website here.
In this episode, I visit with Don Stern, Managing Director of Corporate Monitoring & Consulting Services. We explore how to go about assessing ethics and compliance in the mergers and acquisition (M&A) context and the impact that M&A has on both the acquired entity and the acquirer. Stern began by noting the inherent risk in the entire M&A process. Yet, the culture perspective is not often considered in the pre-acquisition phase. Stern believes companies are making a big mistake in doing so. Companies spend huge amounts of resources to hire lawyers, investment bankers, accountants for the pre-acquisition phase. They scrub the financials, look at income and look at revenues and expenses. Yet they often spend almost no time in looking at issues like the ethical culture of the company to be acquired. Stern stated, “I’ve never quite understood that everyone understands the risk of any acquisition. That the company picture may not work out quite as rosy as was expected. They may be some synergies that were expected from an expense point of view that don’t quite work out.”
The lack of knowledge on each parties culture can lead to many problems in the post-acquisition phase. Stern emphasized that the key is to not only come in with a plan but to listen and be attentive while implementing the plan. This can lead to a standoff in accomplishing the integration steps required under the Foreign Corrupt Practices Act (FCPA) or similar legislation. However, this is the situation where an independent monitor can assist both parties. Even after closing, an independent integrity monitor can come in and help to smooth out the process. An independent third party comes in with credibility and experience which allows employees at the acquired entity to communicate their concerns in a way that really is very helpful to the acquiring company. Employees can communicate such basic issues as they do not understand the new training they are required to go through, how things do not seem to fit together or the most basic question of why they are now required to do something. Employees can explain why risk areas may exist in other places but not exist in some others. Someone who is truly independent, with no stake in the game, can help make those explanations in a non-threatening way. The key is that independent third-party expert.
In this five-part podcast series, sponsored by Affiliated Monitors, Inc. (AMI); I have been joined by AMI Managing Director Stern. We have considered how defense counsel can work proactively with independent monitors to help clients who may have sustained an ethical or compliance violation or are under government scrutiny for allegations of illegal misconduct in a wide variety of industries, disciplines and corporate settings. In this concluding episode, we look at a third-party independent in non-profit setting and how it could help universities survive Varsity Blues. Find out more about Affiliated Monitors Inc. by checking out their website here.
In this five-part podcast series, sponsored by Affiliated Monitors, Inc. (AMI); I am joined by AMI Managing Director Stern. We consider how defense counsel can work proactively with independent monitors to help clients who may have sustained an ethical or compliance violation or are under government scrutiny for allegations of illegal misconduct in a wide variety of industries, disciplines and corporate settings. In this third episode, we look at some case studies. Case studies are something every lawyer and compliance practitioner responds to because it presents real facts and events that the corporate compliance discipline can learn from and hopefully incorporate these lessons learned into their organizations. Join us in our next episode in which we consider working with independent third-party monitor in the health care setting.Find out more about Affiliated Monitors Inc. by checking out their website here.
In this five-part podcast series, sponsored by Affiliated Monitors, Inc. (AMI); I am joined by AMI Managing Director Stern. We consider how defense counsel can work proactively with independent monitors to help clients who may have sustained an ethical or compliance violation or are under government scrutiny for allegations of illegal misconduct in a wide variety of industries, disciplines and corporate settings. In this second episode, take a deep dive into the nuts and bolts of defense counsel working with a third-part independent monitor. Join us in our next episode in which we consider case studies where an independent third-party monitor was used successfully by defense counsel. Find out more about Affiliated Monitors Inc. by checking out their website here.
In this five-part podcast series, sponsored by Affiliated Monitors, Inc. (AMI); I am joined by AMI Managing Director Stern. We consider how defense counsel can work proactively with independent monitors to help clients who may have sustained an ethical or compliance violation or are under government scrutiny for allegations of illegal misconduct in a wide variety of industries, disciplines and corporate settings. In this first episode, we introduce the concept of defense counsel working with independent monitors. Join us in our next episode where we dive into the weeds by looking at the nuts and bolts of working with a third-party independent monitor. Find out more about Affiliated Monitors Inc. by checking out their website here.
