Tag: M&A

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Daily Compliance News

Daily Compliance News: October 6, 2023 – The Backdoor Man Edition

Welcome to the Daily Compliance News. Each day, Tom Fox, the Voice of Compliance, brings 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.

Stories we are following in today’s edition:

  • DOJ offers self-disclosure incentives in M&A. (WSJ)
  • SBF-Backdoor Man? (NYT)
  • A car wreck, death, and corruption? (Vanity Fair)
  • Alibaba accused of ‘possible espionage’. (FT)

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Report from IMPACT 2023

Report from IMPACT 2023: Nick Gallo on Generational Change in the Workplace and Importance of Culture

ECI’s IMPACT 2023 was one of the leading compliance events in 2023. At this conference, Tom Fox, the Voice of Compliance, was able to visit with several of the speakers, exhibitors, participants and one group of ethically minded Girl Scout Troop. In this limited podcast series, Report from IMPACT 2023, Tom explores many of the most cutting-edge topics in ethics and compliance through short podcast episodes. Check out the full series of interviews. You will be enlightened, informed and come away with a fuller and more thorough understanding of the most cutting-edge topics in ethics and compliance. In this episode, Tom visits with Nick Gallo, co-CEO at Ethico and Keynote speaker at Impact 2023. He and Tom talk about the themes from Nick’s Keynote.

Nick Gallo brings a wealth of experience from his background in private equity to the discussion of the changing landscape of work, ethics and culture. Gallo’s unique insights are shaped by his belief that traditional hierarchical structures in workplaces have been replaced with more flat and remote structures, presenting a significant opportunity for industry transformation. Drawing from his firsthand experience during his PE acquisitions and mergers career, he emphasizes the critical role of authentic culture in enhancing employee engagement and performance. Gallo also highlights the need for aligning personal values with the purpose of an organization, a concept he believes is lacking in today’s transactional economy. Join Tom Fox and Nick Gallo as they delve deeper into these insights on this episode of the Report from Impact podcast.

 Highlights Include 

·      The impact of culture in M&A

·      The role of ethics in the workplace

·      A new generation in the workforce

 Resources 

Nick Gallo on LinkedIn

Ethico

ECI

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Data Driven Compliance

Data Driven Compliance: Christian Perez-Font on Law, Compliance & Data

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, which is a podcast featuring an in-depth conversation around the uses of data and data analytics in compliance programs. Data Driven Compliance is back with another exciting episode. The intersection of law, compliance, and data is becoming increasingly important in cross-border transactions, mergers, and acquisitions.

In this episode, Tom welcomes Christian Perez-Font for the first of two parts on using performance bonds and data analytics to guarantee these transactions and the legal requirements and nuances of different jurisdictions when conducting due diligence. They also discussed how technology changes how companies manage Latin American operations, how practitioners need to understand Excel spreadsheets, and how to share data to benchmark and extract the correct information. Christian’s background in engineering and economics has helped him incorporate data analytics, compliance, and law into a unique package. Tune in to Data Driven Compliance and stay ahead of the curve in the compliance world!

Key Highlights:

  • Law Compliance & Data
  • Data as Fuel
  • Data Analytics in M&A
  • Data Analytics in Compliance

Resources:

Christian Perez-Font on LinkedIn 

Thinkeen Legal

 Tom Fox 

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GalloCast

GalloCast – Episode 9, Live at ECI

Welcome to the GalloCast. You have heard of the Manningcast in football. Now we have the GalloCast in compliance. The two top brothers in compliance, Nick and Gio Gallo, come together for a free-form exploration of compliance topics. It is a great insight into compliance brought to you by the co-CEOs of Ethico. Fun, witty, and insightful with a dash of the two brothers throughout. It’s like listening to the Brothers Gallo talk compliance at the Sunday dinner table. Hosted by Tom Fox, the Voice of Compliance.

In this episode of the GalloCast, the trio discusses some of the most challenging issues companies face regarding ethics and compliance. They start by diving into the recent $767 million fine slapped on British American Tobacco for colluding to sell cigarettes into North Korea, violating sanctions. They debate who should be held accountable for changing a company’s culture, how deep-rooted biases can affect decision-making, and the effectiveness of regulatory enforcement. The discussion covers the intricacies of ethics in different business models, including distributor and commissioned sales agent models. They also discuss the risks and benefits of a conservative approach and the adaptability of ethics and compliance programs.  The episode concludes by discussing cultural fit in mergers or acquisitions and how finding common ground and preserving distinctness can be accomplished. Don’t miss out on the wealth of insights and practical advice on navigating these challenging issues in the corporate world. Tune in to GalloCast now!

Key Highlights:

  • BAT’s illegal sales to North Korea
  • Determining Right and Wrong in Corporate Decisions
  • Balancing Values and Profit in Business
  • Balancing Compliance and Ethics Programs
  • Adapting Ethics & Compliance Programs
  • Ethics and Compliance Teams in Companies
  • Dangers of Groupthink in Decision-Making
  • Culture’s Role in Business Mergers and Acquisitions
  • Cultural Integration in Mergers & Acquisitions

Resources

Nick Gallo on LinkedIn

Gio Gallo on LinkedIn

Ethico

Tom Fox 

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31 Days to More Effective Compliance Programs

One Month to a More Effective Compliance Program in Training and Communications – Compliance and the Clash of Cultures

One of the more difficult things to predict in the mergers and acquisition context is how the cultures of the two entities will merge. Further, while many mergers claim to be a ‘merger of equals’ the reality is far different as there is always one corporate winner that continues to exist and one corporate loser that simply ceases to exist. This is true across industries and countries; witness the debacle of Daimler Chrysler, the disaster of the HP acquisition of Autonomy, or the slow downhill slide of United Airlines, Inc. after its merger with Continental Airlines.

In the compliance space this clash of cultures is often seen. One company may have a robust compliance program, with a commitment from top management to have a best practices compliance program. The other company may put profits before compliance. Whichever company comes out the winner in the merger, it can certainly mean not only conflict but if the winning entity is not seen as valuing compliance, it may mean investigations and possibly even violations going forward.
Learning how your employees in other countries will approach decision-making and leadership will give you, as the CCO, insight into how they will approach compliance. It will require you to get out into the field to talk with folks. If your company grows organically or through M&A or the JV route, it will need to understand how your new employees will not only think through issues but how they will relate to instructions from the home office in America.

Three key takeaways:

  1. Culture clash through a merger can be extremely negative for a company.
  2. What are the cultures of leadership in your organization?
  3. Learning how your employees approach decision making can provide insight into how the will approach compliance.
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31 Days to More Effective Compliance Programs

One Month to More Effective Compliance for Business Ventures – Post Acquisition Integration

Your company has just made its largest acquisition ever and your CEO says that he wants you to have a compliance post-acquisition integration plan on his desk in one week. Where do you begin? Of course, you think about the 2020 FCPA Resource Guide, 2nd edition but you also remember that the established time frames in the enforcement actions involving Johnson & Johnson (J&J), Pfizer Inc. and DS&S and the Halliburton Opinion Release.

While there are time frames listed in these DPAs, they are a guide of timeframes, not a ‘how to’ guide and many compliance professionals struggle with how to perform these post-acquisition compliance integrations. The 2020 Update to the Evaluation of Corporate Compliance Programs asked the following questions, What has been the company’s process for tracking and remediating misconduct or misconduct risks identified during the due diligence process? What has been the company’s process for implementing compliance policies and procedures, and conducting post- acquisition audits, at newly acquired entities?

Whatever compendium of steps you utilize for post-acquisition integration, they should be taken as soon as practicable.

Three key takeaways: 

  1. Planning is critical in the post-acquisition phase.
  2. Build upon what you learned in pre-acquisition due diligence.
  3. You need to be ready to hit the ground running when a transaction closes.
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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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31 Days to More Effective Compliance Programs

One Month to More Effective Compliance for Business Ventures – Safe Harbor in M&A

White collar defense practitioners have long called for a specific safe harbor for companies in the mergers and acquisition context where they meet the criteria set out by the DOJ. This clarion call was answered in the summer, 2018 when in July 2018, the DOJ announced a revision to the FCPA Corporation Enforcement Policy, specifically around mergers and acquisitions. The new language read:
M&A Due Diligence and Remediation: The Department recognizes the potential benefits of corporate mergers and acquisitions, particularly when the acquiring entity has a robust compliance program in place and implements that program as quickly as practicable at the merged or acquired entity. Accordingly, where a company undertakes a merger or acquisition, uncovers misconduct through thorough and timely due diligence or, in appropriate instances, through post-acquisition audits or compliance integration efforts, and voluntarily self-discloses the misconduct and otherwise takes action consistent with this Policy (including, among other requirements, the timely implementation of an effective compliance program at the merged or acquired entity), there will be a presumption of a declination in accordance with and subject to the other requirements of this Policy.

In announcing the change, then Deputy Assistant Attorney General Matthew Miner, that while the FCPA Resource Guide did provide some guidance on what may constitute a safe harbor; that word ‘may’ was a “sticking point for corporate management when deciding whether and how to proceed with a potential merger or acquisition. There is a big difference between a theoretical outcome and one that is concrete and presumptively available.”
Three Key Takeaways

  1. The FCPA Corporate Enforcement Policy was amended in 2018 to provide a safe harbor in the M&A context.
  2. Pre and post-acquisition compliance work must be equally robust.
  3. If you find misconduct, report and remediate.
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31 Days to More Effective Compliance Programs

Day 29 – Post-acquisition Integration Plan

Your company has just made its largest acquisition, and your CEO says they want you to have a compliance post-acquisition integration plan on their desk in one week. Where do you begin? An excellent place to start would be the 2020 FCPA Resource Guide, 2nd edition language:
Pre-acquisition due diligence is usually only a portion of the compliance process for mergers and acquisitions. DOJ and SEC evaluate whether the acquiring company promptly incorporated the acquired company into its internal controls, including its compliance program. Companies should consider training new employees, reevaluating third parties under company standards, and, where appropriate, conducting audits on new business units.

The bottom line is that you must train the newly acquired employees, reevaluate third parties under your company standards, and conduct compliance audits on new business units. This process should be based on your pre-acquisition due diligence and risk assessment. Moreover, the DOJ and SEC view both the pre-and post-acquisition phases of M&A as tied together in a unidimensional continuum. If pre-acquisition due diligence is impossible, you should review the requirements and time frames laid out in Opinion Release 08-02 or the 2020 FCPA Resource Guide, which noted, “pursuant to which companies can nevertheless be rewarded if they choose to conduct thorough post-acquisition FCPA due diligence.” Whatever compendium of steps you utilize for post-acquisition integration, they should be taken as soon as is practicable.

The earlier you can deploy these steps, the better off your company will be at the end of the day. An acquisition that fails for compliance reasons is a preventable disaster of the first order. One need only consider the Latin Node Inc. FCPA enforcement actions where the acquiring company had to write off its entire investment because it had failed to engage in appropriate pre-acquisition due diligence.

Three key takeaways:

  1. Planning is critical in the post-acquisition phase.
  2. Build upon what you learned in pre-acquisition due diligence.
  3. You literally need to be ready to hit the ground running when a transaction closes.
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Daily Compliance News

December 19, 2022 – The Qatar Threatens The EU Edition

Welcome to the Daily Compliance News. Each day, Tom Fox, the Voice of Compliance, brings you four compliance-related stories to start your day. Sit back, enjoy a cup of morning coffee and listen to the Daily Compliance News. All from the Compliance Podcast Network.

 

Stories we are following in today’s edition of Daily Compliance News:

  • Qatar threatens EU over bribery allegations. (WSJ)
  • The UK takes a stand against corruption. (Forbes)
  • Washington SCt blocks Albertson’s distribution. (Reuters)
  • SBF expected to agree to extradition. (NYT)