Tag: investigations

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31 Days to More Effective Compliance Programs

One Month to a More Effective Compliance Program Through Culture: Day 10 – Improving Culture Through Investigations

Meric Bloch 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. Bloch 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 the challenges they face, particularly the fear of being perceived as incompetent and the difficulties in reporting.

One of the key points raised by Bloch is the importance of making speaking meaningful and credible. He pointed out that companies often fail to communicate what should be reported, leading to confusion among employees. Bloch also highlights the lack of follow-up interviews and training for reporters as a problem. He stressed the need for organizations to engage with reporters and gather additional information to better understand the context and potential gaps in the initial report. Bloch also discussed the importance of addressing friction points within organizations. He mentioned that employees often hesitate to speak up due to concerns about the involvement of headquarters or fear of retaliation. Organizations must actively address these concerns and create an environment where employees feel safe and supported when reporting issues.

To create a culture of speaking up, organizations must move beyond passive measures such as hotlines and policies. They need to actively engage with employees, educate them about their role in the process, and provide clear guidance on what should be reported. By doing so, organizations can foster a culture of compliance where employees feel empowered to speak up and contribute to maintaining ethical standards.

Three key takeaways:

1. Your investigation process must go beyond simple policies and procedures.

2. Seeking additional information from a reporter will enhance the investigative process and your culture.

3. Remove friction points in the speak-up and investigative processes.

Do you want to improve your culture? How can you assess your culture and develop a strategy to improve it going forward? In this free webinar on the new tool, The Culture Audit with Tom Fox and Sam Silverstein, on Tuesday, November 28, 12 CT, For more information and registration, click here.

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Compliance Into the Weeds

Compliance into the Weeds – Remediation During an Enforcement Action

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 more fully explore a subject. Looking for some hard-hitting insights on compliance? Look no further than Compliance into the Weeds! In this episode, Tom and Matt take a deep dive into the issue of how and whether you should remediate during an enforcement action.

The importance of early and continuous remediation of compliance issues cannot be overstated. It is a critical aspect of maintaining a healthy relationship with regulators and ensuring effective strategies are in place to address any uncovered issues. Tom firmly believes in the necessity of initiating the remediation process as early as possible, even during the investigation phase. He emphasizes the importance of regular communication with regulators and the potential risks of delaying remediation.

Matt echoes Fox’s sentiments. He highlights the confidence that early remediation brings to compliance officers and the increased likelihood of successful resolution. Join Tom Fox and Matt Kelly as they delve deeper into this topic in this episode of the Compliance into the Weeds podcast.

 Key Highlights:

  • Proactive Remediation for Effective Compliance Management
  • Navigating Personnel Matters During Remediation
  • Logical and Consistent Employee Discipline Compliance
  • Remediation Strategies for Confident Compliance Officers

 Resources:

Matt on Radical Compliance

Tom 

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31 Days to More Effective Compliance Programs

One Month to a More Effective Compliance Program Through Innovation: Day 15 – Leveraging AI in Compliance Investigations

The 2023 ECCP provided clear-cut criteria regarding effective compliance investigations. Unfortunately, many compliance teams fail to promptly substantiate most of the reports they investigate, partly due to their inability to quickly and easily find the evidence they need, especially about harassment and misconduct cases. He stated, “This doesn’t just demonstrate a fundamental lack of effectiveness from the DOJ’s perspective, but a long-term organizational risk that goes well beyond any individual allegation of misconduct.” The reason is not simply legal but also operational. If substantive allegations are indeed violations, they could continue, exacerbating the problem(s) and lengthening the time of legal liability.

All of this is particularly significant in light of the industry research that shows many compliance investigations today are unsubstantiated and can take over 40 days from start to finish. The ability of AI to find and analyze data from the web and social media in this automated fashion will be able to overcome some of those challenges in terms of length of time and overall scope of the investigation. Finally, always remember data preservation. The regulators always want to know if you have the documents and data tied down. This allows a company to have confidence in its papers and, in turn, can make such representations to regulators and prosecutors that the documents are secure. In other words, Document, Document, and Document. 

Three key takeaways:

  1. AI is an appropriate tool for supplementing investigations.
  2. AI can look at large bodies of social media data.
  3. AI can help you decrease your investigation length.

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

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Data Driven Compliance

Data Driven Compliance: The Transformative Potential of AI in Compliance Investigations

Are you struggling to keep up with the ever-changing compliance programs in your business? Look no further than the award-winning Data Driven Compliance podcast, hosted by Tom Fox. This podcast features an in-depth conversation about the uses of data and data analytics in compliance programs. Data Driven Compliance is back with another exciting episode. Today, Tom takes a solo turn to consider using AI to facilitate compliance investigations.

The advent of artificial intelligence (AI) is revolutionizing the landscape of legal and compliance investigations, enhancing substantiation rates, expediting case closure times, and preserving crucial evidence. Tom Fox, a seasoned expert in the field, firmly believes in the transformative potential of AI in this domain. He posits that AI can significantly improve regulatory compliance by enhancing substantiation rates, shortening case closure times, and preserving key evidence. Fox’s perspective is shaped by the current challenges initially posed by the COVID-19 pandemic, which made traditional methods of internal interviews and company data analysis less feasible, and those challenges coming out of the pandemic.

He advocates using AI technology to search unstructured web and social media data, leading to more efficient and conclusive investigations. Furthermore, he underscores the importance of data preservation and the ability of AI to analyze large volumes of social media data, thereby reducing investigation length and promoting fair institutional justice. Join Tom Fox in this episode as he delves deeper into this fascinating topic.

Highlights Include:

  • Leveraging AI for Efficient Compliance Investigations
  • The need for speed
  • Enhancing Compliance Investigations with AI-Based Data Preservation

 Resources: 

Tom Fox 

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Adventures in Compliance

The Memoirs of Sherlock Holmes – Silver Blaze

The world of compliance investigations can be complex and challenging, requiring investigators to navigate through a maze of information and uncover hidden truths. In the podcast episode “The Adventure of Silver Blaze” on Adventures in Compliance, host Tom Fox explores the valuable investigative lessons that can be learned from Sherlock Holmes’ approach to solving mysteries. This episode focuses on the story of Silver Blaze, where Holmes uses his attention to detail, deductive reasoning, and pattern recognition skills to solve the case.

One of the key lessons highlighted in the episode is the importance of attention to detail. Holmes emphasizes the need to observe even the smallest details, as seemingly insignificant clues can provide crucial insights. Compliance investigators can apply this lesson by paying attention to every detail, no matter how trivial it may appear. By doing so, they can uncover hidden connections and gather valuable evidence.

Contextual analysis is another important factor in Sherlock Holmes’ investigative approach. Holmes examines the circumstances surrounding the crime and seeks to understand the broader context. He considers various factors, such as the behavior of people involved, the nature of the crime scene, and the motivation of the subjects. This lesson emphasizes the significance of understanding the context and building a comprehensive understanding of any case or investigation.

Deductive reasoning is a skill that Holmes is renowned for. He draws logical conclusions based on the available evidence and eliminates improbable scenarios. Compliance investigators can learn from this approach by using logical thinking to eliminate false leads and narrow down possibilities. By applying deductive reasoning, investigators can focus their efforts on the most relevant areas and make informed decisions.

Sherlock Holmes also emphasizes the value of disguised or unexpected evidence. In the story of Silver Blaze, Holmes notices the absence of expected evidence, such as the dog not barking, and deduces that a certain action was taken. This teaches investigators to look for the presence or absence of evidence that may be disguised or unexpected, as it can provide valuable insights.

Information gathering is a critical aspect of the investigative process, and Holmes emphasizes the importance of gathering information from various sources. He interacts with different characters, collects testimonies from multiple sources, and examines forensic evidence and documents. Compliance investigators can benefit from this lesson by gathering information from diverse sources to obtain a comprehensive understanding of the situation.

Pattern recognition is another skill that Holmes excels at. He is adept at recognizing patterns and connecting seemingly unrelated pieces of information. This ability allows him to identify the truth and solve the case. Investigators should develop pattern recognition skills to identify connections and associations that may lead to crucial breakthroughs. Data analytics can also play a role in pattern recognition, helping investigators find patterns in large amounts of data.

In addition to logical reasoning, Holmes also values intuition and creativity. He is open to unconventional ideas and thinks creatively to explore all possibilities. Compliance investigators can benefit from this lesson by being open-minded and thinking outside the box. Sometimes, unconventional or imaginative approaches uncover hidden insights and provide new perspectives.

Collaboration and consultation are also important aspects of Sherlock Holmes’ investigative approach. Holmes frequently collaborates with others, such as his trusted associate Dr. Watson, to exchange ideas and gain different perspectives. Investigators and compliance professionals can benefit from seeking advice or collaborating with colleagues to enhance their problem-solving skills and uncover new insights.

In conclusion, the episode “The Adventure of Silver Blaze” on Adventures in Compliance highlights the valuable investigative lessons that can be learned from Sherlock Holmes’ approach. Attention to detail, contextual analysis, deductive reasoning, information gathering, pattern recognition, intuition, creativity, collaboration, and consultation are all key factors that impact the effectiveness of applying Sherlock Holmes’ investigative lessons in compliance investigations. By incorporating these lessons into their investigative practices, compliance investigators can improve their ability to solve complex problems and uncover hidden truths.

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Blog

How Triage and Investigations Can Drive a Culture of Speak Up

I recently concluded a podcast series with Case IQ. Over this series, I visited 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. We tackled 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 will conclude with some thoughts on how an entire system of speaking up drives corporate culture to be better run and more profitably. This blog post series will expand on these topics. In Part 3, we consider why and how having an effective triage for reports and investigations can drive a culture of speaking up in your organization.

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. He is a passionate and determined team player with experience in prospecting and implementing complex global solutions in various industries. Experience working in cross-functional and multi-cultural teams in Canada, the United States, Germany, and India. His specialties include business strategy and development, international management, ethics and compliance, investigation management, and global implementation strategy.

Jakub emphasized the need for organizations to consider the assessment and triage process before receiving complaints or allegations. This proactive approach allows for increased response time and the ability to set realistic stakeholder expectations.

One of the key points highlighted by Jakub is the importance of setting service level agreements (SLAs) to determine response times based on the nature of the allegation. This concept, borrowed from customer service practices, ensures that employees who come forward with complaints or allegations are provided with a clear understanding of the expected timeline for response and communication. By setting these expectations, organizations can foster a culture of open communication and trust.

The triage process is particularly important for multinational companies that operate across different regions. With varying compliance programs and regulations in different countries, having a well-documented process becomes essential. It allows compliance departments to navigate the complexities of compliance programs and investigations, ensuring consistency and adherence to local laws.

Technology also plays a crucial role in establishing effective compliance processes. Jakub points out that many organizations still need efficient documentation and tracking processes. Implementing technology, such as a case management solution, can help establish accountability and defensibility. It allows for establishing clear procedures monitoring performance and provides documentation that can be used to assess the effectiveness of compliance programs.

There is an overriding need for organizations to build accountability and defensibility into their compliance processes. By having a documented triage process and utilizing technology, organizations can ensure that complaints and allegations are handled promptly and consistently. This fosters a culture of speaking up and provides employees with the confidence that their concerns will be taken seriously and addressed promptly.

However, it is important to recognize the tradeoffs in balancing different factors when implementing a triage process and technology in organizational compliance. While efficiency and speed are crucial, organizations must also consider the need for thorough investigations and the protection of employee rights. Striking the right balance requires careful consideration and ongoing evaluation of processes to ensure continuous improvement.

In conclusion, the triage process and technology are vital in promoting a speak-up culture and ensuring organizational compliance. By proactively assessing and triaging complaints and allegations, organizations can increase response time and set realistic expectations for stakeholders. Implementing technology, such as a case management solution, helps establish accountability and defensibility. However, it is important to consider the impact on employee rights and the need for thorough investigations when making decisions about the importance of the triage process and technology in organizational compliance.

Join us tomorrow when we discuss closing the loop by improving your compliance program through a culture of speaking up.

Listen to Jakub Ficner on Innovation in Compliance here.

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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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Daily Compliance News

Daily Compliance News: July 28, 2023 – The New Cyber Disclosure Rules 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.

  • Zelensky warns about corruption. (FT)
  • New cyber disclosure rules go into effect. (AP)
  • Najib deposed in 1MDB case. (Bloomberg)
  • Cognizant investigation not outsourced. (WSJ)
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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.