Tag: internal investigations

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Compliance Tip of the Day

Compliance Tip of the Day: Preparing for An Investigation

Welcome to “Compliance Tip of the Day,” the podcast where we bring you daily insights and practical advice on navigating the ever-evolving landscape of compliance and regulatory requirements.

Whether you’re a seasoned compliance professional or just starting your journey, our aim is to provide you with bite-sized, actionable tips to help you stay on top of your compliance game.

Join us as we explore the latest industry trends, share best practices, and demystify complex compliance issues to keep your organization on the right side of the law. Tune in daily for your dose of compliance wisdom, and let’s make compliance a little less daunting, one tip at a time.

In this episode, we look at some of the key steps you should take in preparing for an internal investigation.

For more information on the Ethico ROI Calculator and a free White Paper on the ROI of Compliance, click here.

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Innovation in Compliance

Breaking the Silence: How Speaking Up Enhances Corporate Cultures – Meric Bloch on How a Speak Up Culture Improves Compliance

Welcome to a special five-part podcast series on enhancing corporate culture through a great speak-up regime. This podcast series is sponsored by Case IQ. Over this series, Tom Fox will visit with Sharlyn Lauby, Jakub Ficner, Kenneth McCarthy, and Meric Bloch on the different facets of a great speak-up regime and how each of those facets will improve your corporate culture. They will tackle such topics as the indicia of a great corporate culture, the importance of triage and internal investigations in improving corporate culture, non-retaliation and protections for those who speak up, tying your entire system of speaking up to improving culture, and conclude with some thoughts on how an entire system of speaking up drives corporate culture to be better run and, at the end of the day, more profitably. In Part 4, Tom Fox visits Meric Bloch on how a robust speak-up culture will improve your compliance program.

Meric Bloch is an expert in workplace investigations with a rich background in helping corporate clients establish effective investigation programs. He is currently serving as an adjunct professor at Fordham University Law School. Meric strongly emphasizes the importance of workplace investigations and fostering a culture of employee compliance. He believes that merely setting up a hotline and establishing policies is insufficient; companies must actively engage with employees to understand their motivations for speaking up or remaining silent. Meric also underscores the need for accountability and a critical evaluation of the effectiveness of compliance programs. His experiences with multinational companies have shaped his understanding of their challenges, particularly the fear of being perceived as incompetent and the difficulties in reporting. Join Tom Fox and Meric Bloch on this episode as they dive deep into improving your compliance program through a speak-up culture.

Key Highlights:

  • Enhancing Corporate Investigations for Compliance and Accountability
  • The Impact of Cooperation on Reporters
  • The Impact of Meaningful Speak Up Culture

Resources:

Meric Bloch on LinkedIn

Winter Investigations

Case IQ

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Innovation in Compliance

Breaking the Silence: How Speaking Up Enhances Corporate Cultures – Jakub Ficner on How Triage and Investigations Can Drive a Culture of Speak Up

Welcome to a special five-part podcast series on enhancing corporate culture through a great speak-up regime. This podcast series is sponsored by Case IQ. Over this series, Tom Fox will visit with Sharlyn Lauby, Jakub Ficner, Kenneth McCarthy, and Meric Bloch on the different facets of a great speak-up regime and how each of those facets will improve your corporate culture. They will tackle such topics as the indicia of a great corporate culture, the importance of triage and internal investigations in improving corporate culture, non-retaliation and protections for those who speak up, tying your entire system of speaking up to improving culture, and conclude with some thoughts on how an entire system of speaking up drives corporate culture to be better run and, at the end of the day, more profitably. In Part 3, Tom Fox visits with Jakub Ficner on the importance of your triage protocol and investigative process to foster a culture of speaking up.

Jakub Ficner has over 15 years of experience in the internal investigative space and is currently the Director of Partnership Development at Case IQ. He strongly advocates for the importance of the triage process and technology in organizational compliance. Jakub emphasizes the need for a rigorous reporting, triage, and investigation process, even before receiving a complaint or allegation. He believes that effective means of documenting and tracking investigative processes are crucial for establishing accountability and defensibility in compliance processes. Drawing from his extensive experience, Jakub highlights the significance of having a documented process, especially for multinational companies with compliance officers in various regions. He recommends using technology, such as a case management solution, to ensure accountability, defensibility, and easy information retrieval. Join Tom Fox and Jakub Ficner on this episode as they delve deeper into these topics of triage and investigations.

 Key Highlights:

  • The importance of effective triage
  • Improving Response Time and Setting Expectations
  • Effective Compliance Documentation and Tracking
  • Using Technology to Establish Accountability and Defensibility

Resources:

Jakub Ficner on LinkedIn

Case IQ

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FCPA Compliance Report

FCPA Compliance Report – Mike DeBernardis on the Cognizant Investigation Ruling

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes back fan favorite Mike DeBernardis, partner at Hughes Hubbard Reed. We take a deep dive into the trial court ruling in the Coburn and Schwartz claim that the Cognizant internal investigation which identified them was run by the DOJ and should be tossed for the lack of federal criminal procedural protections.

A recent district court decision on an FCPA case has significant implications for future investigations. The trial court emphasized the importance of a fully developed record and provided guidance for companies conducting internal investigations while cooperating with the government. The episode emphasizes the need for independent investigations, the distinction between government-directed investigations and cooperation with the DOJ, and the timeline of events that shows the importance of self-disclosure by the company. It also discusses the significance of independent decision-making in corporate investigations and the importance of documenting investigations to build a strong record. The restrictions placed on employee interviews during investigations are also addressed, with a suggestion for clear guidelines and procedures to ensure fair and effective interviews. Overall, the episode highlights the practical implications of the court decision and sets a standard for future investigations in FCPA cases.

 Key Highlights

·      FCPA Pretrial Work

·      Importance of Independent Decision-Making

·      Importance of Documenting Investigations

·      Restrictions on Employee Interviews

·      Investigation world cases

Resources

Mike DeBernardis

Hughes Hubbard Reed

Court Opinion in US v. Coburn

Tom Fox

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2 Gurus Talk Compliance

2 Gurus Talk Compliance – Episode 10 – Ethical Remote Workers Edition

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!

Tom and Kristy consider the possibility of an international anti-bribery court, challenges in enforcing judgments against countries without strong anti-corruption laws, and the United States’ unlikely participation. The European Commission issued an adequacy decision regarding data transfers between the US and EU, resolving a long-standing issue, but privacy advocate Max Schrems plans to challenge its validity. The importance of on-site due diligence, and the value of on-site audits and cybersecurity disclosure were also explored. The benefits of remote work, global anti-corruption efforts, AI safeguards, and the dangers of zero tolerance policies were covered as well. The conversation provided insights into various compliance-related topics.

Highlights Include

·      World ABC Court

·      No DOJ control on Cognizant investigation.

·      SEC adopts Cyber disclosure rules.

·      Fight against corruption in Ukraine.

·      Goldilocks Compliance.

·      Data Privacy Framework Program Launches New Website Enabling U.S. Companies to Participate in Cross-Border Data Transfers

·      Site Visits: Sometimes the Best Due Diligence is Done on Foot

·      New Data Reveals that Remote Workers are Likely More Ethical than their Office Counterparts.

·      White House Says Amazon, Google, Meta, Microsoft Agree to AI Safeguards

·      Man Steals Vehicle, Crashes it into Building during Search for WiFi Connection

 Resources 

  1. WSJ Risk and Compliance Journal
  2. FCPA Blog
  3. Radical Compliance
  4. Dept. Of Commerce Press Release
  5. WSJ
  6. Conflicts of Interest Blog
  7. GAB
  8. Fast Company
  9. Fox 35 Orlando

Connect with Kristy Grant-Hart on LinkedIn

Spark Consulting

Tom 

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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – The Parameters of Privileges

The concept of privilege in an internal investigation is critical. Two important privileges are the attorney-client privilege and the work product privilege. Unfortunately, both are often misunderstood, miss-applied and consequently lost. To determine whether you have a valid privilege claim, it is incumbent to understand the parameters of the attorney-client privilege. In presentation, entitled “Attorney-Client Privilege ”, David E. Keltner, Kelly Hart & Hallman LLP, Elizabeth Brummett and Adrienne Parham, both from University of Texas Law School, wrote that under U.S. federal law, the attorney-client privilege applies when the following are present:

  1.  A client is seeking legal advice or a lawyer’s services;
  2. The person to whom the communication is made is a lawyer or his or her representative;
  3. The communication relates to a fact disclosed from a client (a representative) to a lawyer (a representative);
  4. Strangers are not present;
  5. A client requires confidentiality.

In addition to the attorney-client privilege there is another privilege which can come into play around internal investigations. It is the attorney work-product doctrine. Keltner noted, “The attorney-client privilege and the attorney work-product doctrine are often asserted interchangeably. While there is some overlap between the two, the attorney-client privilege is significantly different than the attorney work-product doctrine.” Moreover as “codified in Fed R.Civ. P. 26(b)(3), [the attorney/work product] provides a qualified protection to materials prepared by party’s counsel or other representative in the anticipation of litigation.” The doctrine exists “because it permits lawyers to “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties . . .””

Three key takeaways:

  1. Note the differences in the attorney-client privilege and attorney work-product doctrine.
  2. Both can be waived intentionally or through inadvertent conduct.
  3. Take care on attorney work-product outside the U.S., where there may be no privilege at all.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Miranda Warnings for Employees?

Must an investigator warn an employee that concealing information from company lawyers conducting an internal FCPA investigation could be a federal crime? Even if the company attorneys provided the now standard corporate attorney Upjohn warning? Does a company attorney asking questions morph into a de facto federal agent during an internal company investigation regarding alleged FCPA violations and is the attorney thereby required to provide a Miranda warning to employees during said investigation?

Employees who are subject to being interviewed or otherwise required to cooperate in an internal investigation may find themselves on the sharp horns of a dilemma requiring either (1) cooperating with the internal investigation or (2) losing their jobs for failure to cooperate by providing documents, testimony or other evidence. Many U.S. businesses mandate full employee cooperation with internal investigations or those handled by outside counsel on behalf of a corporation. These requirements can exert a coercive force, “often inducing employees to act contrary to their personal legal interests in favor of candidly disclosing wrongdoing to corporate counsel.” Moreover, such a corporate policy may permit a company to claim to the government a spirit of cooperation in the hopes of avoiding prosecution in addition to increasing the chances of earning meaningful credit under the U.S. Sentencing Guidelines or the FCPA Corporate Enforcement Policy.

Three key takeaways:

  1. Make sure you provide an Upjohn warning.
  2. If an employee demands counsel to represent them during an internal investigation, who bears the cost?
  3. Always check state law requirements around internal investigations.
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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 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.