Categories
FCPA Compliance Report

Scott Garland and Zach Hafer – Practice After the DOJ

Welcome to the award-winning FCPA Compliance Report, the most senior podcast in compliance. I have double trouble in this episode as I welcome Scott Garland and Zach Hafer. They worked together for many years at the US Attorney’s Office for the District of Massachusetts. Both are now in private practice, Garland as a Managing Director at Affiliated Monitors, Inc. and Hafer as a Partner at Cooley LLP in Boston.

Some of the highlights include:

In this podcast, we consider DOJ corporate enforcement through the mechanisms of DPAs and NPAs based upon Hafer’s tenure as the Criminal Chief. They discussed the need to balance approving prosecutions for general impact vs. based on the case’s merits. We also consider how, if at all, the Monaco Memo changes DOJ focus. Garland leads us through a discussion of compliance issues within a prosecutor’s office, why your compliance philosophy is so critical, and some of the biggest issues and situations they both confronted while in the US Attorney’s Office for the District of Massachusetts. We conclude this section with a discussion of receiving compliance advice: what worked and what did not.

We conclude with a discussion of transitioning from DOJ to private practice, and both Zach and Scott summarize some of the key questions they are getting from clients. Garland opines on key issues he sees for monitors after Monaco Memo, and we conclude with why proactive monitoring can be such a powerful tool.

 Resources

Scott Garland at Affiliated Monitors

Zach Hafer at  Cooley LLP

Categories
Daily Compliance News

November 10, 2022 the Binance Walks Edition

In today’s edition of Daily Compliance News:

  • French raid Rugby World Cup headquarters. (France24)
  • Trump monitor to move forward. (Reuters)
  • Corporations and consent to be sued. (NYT)
  • Binance walks away from buying FTX. (WSJ)
Categories
Great Women in Compliance

All Star Women Monitors, Part 2

Welcome to the Great Women in Compliance Podcast, co-hosted by Lisa Fine and Mary Shirley.

Today is the second part of a 2-part series that we have been planning for a while, and the timing turned out to be perfect.  Lisa is speaking with an all-star panel of Audrey Harris, Bethany Hengsbach and Dionne Lomax,  Managing Directors from Affiliated Monitors.  Audrey’s area is  Global Anticorruption, Compliance, Ethics & Non–Financial Risk, Bethany focuses on Global Corporate Compliance, with a focus on healthcare, and Dionne works in Antitrust and Trade Regulation, as well as being a professor at Boston University. The timing for this series turned out perfectly, as the group was able to get into an in-depth discussion about Lisa Monaco’s statements in September about the Monaco Doctrine and some of their key takeaways.

In Part 2, the group discusses the statements about compensation and clawbacks, and the importance of appropriate resources, among other topics. They also provide their individual perspectives on two other topics that many of us discuss.  One is the reporting line for CECOs, and the importance of a direct line to the Board or Audit Committees.  The other is the certification of Corporate Compliance programs by CEOs and CECOs. The entire discussion was extremely insightful, filled with practical ideas and good tips for everyone who is trying to build and/or maintain a program.

Listen to Part 1 here.

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.

Categories
Innovation in Compliance

The Many Marketing Uses of Podcasts with Jay Rosen

Jay Rosen is the Vice President of Business Development at Affiliated Monitors, Inc., a company that helps businesses face certain types of ethics and compliance challenges. Tom Fox and Jay talk about the power of podcasting as a new component of marketing for Affiliated Monitors in this week’s show. 

 

 

Getting The Message Out

Tom asks Jay to elaborate on how he’s been able to help people within his organization become more comfortable with having short and direct messages to send out about Affiliated Monitors. “My message – and our message internally to our folks – is that they are just so well versed and so talented, there’s nothing to be afraid of,” Jay says. He adds that they are removing barriers of entry and letting employees know that no matter what level of staff they’re at, they have a story to tell. “Personalize your experience at AMI, and that enthusiasm will come through to the people who want to watch.”

 

The Beauty of Evergreen

Jay talks about previous podcast series he’s had with Tom and explains that AMI was able to evolve its thinking around podcasts because the previous series was evergreen. The beauty of evergreen podcast content is that you’re able to repurpose it, repackage it, and use it in your target marketing. “It exists on the AMI website, and it’s still valuable content as well as an incredibly cost-effective tool for you because if you want to slice and dice something you did a couple of years ago in a different way, for a different reason, today, it doesn’t cost you anything but your time,” Tom adds. 

 

Podcasts As a Channel Tool

A podcast you make lives somewhere, such as your website or Apple Podcast. Your podcast connects you digitally to people you’ve never met in person and that’s a powerful networking tool. You’re connecting companies and services. 

 

Resources

Jay Rosen | LinkedIn | Twitter 

Affiliated Monitors, Inc

Podcast for Business 

 

Categories
Great Women in Compliance

All Star Women Monitors

Welcome to the Great Women in Compliance Podcast, co-hosted by Lisa Fine and Mary Shirley.

Today is the first part of a 2-part series that we have been planning for a while, and the timing turned out to be perfect. Lisa is speaking with an all-star panel of Audrey Harris, Bethany Hengsbach and Dionne Lomax,  Managing Directors from Affiliated Monitors.  Audrey’s area is  Global Anticorruption, Compliance, Ethics & Non–Financial Risk, Bethany focuses on Global Corporate Compliance, with a focus on healthcare, and Dionne works in Antitrust and Trade Regulation, as well as being a professor at Boston University.

 In Part 1, we get to hear more about their backgrounds and the road to their current roles.  They also explain more about work as a monitor, including how they are appointed, what they do as monitors, and the field in general.  They also share their experiences in reviewing programs and what impresses them when they are assessing a program, and, conversely, what concerns them.

They also provide advice for women who want to get into the field, and some of the things they have learned.

 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.

Categories
Daily Compliance News

November 1, 2022 the Good Governance Edition

In today’s edition of Daily Compliance News:

  • Musk fires Twitter Board and makes himself sole director. (WSJ)
  • EU wants stronger anti-forced labor law. (WSJ)
  • Trump companies don’t want to monitor. (Reuters)
  • Companies under clawback pressures from SEC. (WSJ)
Categories
FCPA Compliance Report

The EC Gang on the Monaco Doctrine

In this special 5 part podcast series, I am deeply diving into the Monaco Memo and analyzing it from various angles. In this episode of the FCPA Compliance Report, we have the Award-Winning Everything Compliance quartet of Jonathan Marks, Jonathan Armstrong, Karen Woody, and Tom Fox on the Monaco Memo.

1. Tom Fox looks at the Monaco Memo through the monitorship language and answers a listener’s questions about compliance programs under the Monaco Memo.

2. Karen Woody reviews the Monaco Memo, the self-disclosure angle, and investigatory considerations and ponders the role of defense counsel going forward.

3. Jonathan Marks also looks at investigatory issues under the Monaco Memo, the role of the Board of Directors, and the role of the forensic auditor under the Monaco Memo.

4. Jonathan Armstrong’s self-disclosure from a UK angle joins Karen Woody in questioning how defense counsel should move forward.

Resources

Tom 5-Part blog post series in the FCPA Compliance and Ethics Blog

1.     A Jolt for Compliance

2.     Timely Self-Disclosure

3.     Corporate Compliance Programs

4.     Monitors

5.     The Heat is On

Monaco Memo

Categories
FCPA Compliance Report

Laura Perkins on the Monaco Memo

In this special 5 part podcast series, I am deeply diving into the Monaco Memo and analyzing it from various angles. In this episode of the FCPA Compliance Report, I am joined by Hughes Hubbard partner Laura Perkins to take a deep dive into the Monaco Memo. Some of the highlights include:

  1. Determination of Monitor Need.
  2. Roadmap to proa-active compliance.
  3. Timely self-disclosure as criteria for monitorship?
  4. Monitor selection criteria.
  5. Monitor review and oversight.

 Resources

Laura Perkins on HughesHubbard.com

Tom 5-Part blog post series in the FCPA Compliance and Ethics Blog

  1. A Jolt for Compliance
  2. Timely Self-Disclosure
  3. Corporate Compliance Programs
  4. Monitors
  5. Polite Speech

Monaco Memo

Categories
FCPA Compliance Report

Matt Kelly on the Monaco Memo

In this special 5 part podcast series, I am deeply diving into the Monaco Memo and analyzing it from various angles. In this episode of the FCPA Compliance Report, I am joined by my Compliance into the Weeds co-host Matt Kelly for a deep dive into the weeds of the Monaco Memo. Some of the highlights include:

  1. Corporate accountability.
  2. Timeliness in turning over evidence of wrongdoing.
  3. Baby Carrots in evaluating the corporate history of misconduct.
  4. Additions to Evaluation of Corporate Compliance Programs.
  5. Tweaks to the Yates Memo formulation.
  6. Monitors and Monitorships.

 Resources

Matt in Radical Compliance

Tom in the FCPA Compliance and Ethics Blog

  1. Introduction
  2. Self-Disclosure
  3. Corporate Compliance Programs
  4. Monitors
  5. What it all means

Monaco Memo

Categories
Blog

Monaco Memo – A Jolt for Compliance: Part 4 – New Factors in Selecting Monitors

Today, we continue our exploration of the Monaco Memo by considering the sections relating to the evaluation of cooperation during the pendency of the investigation and the evaluation of a company’s compliance program at the conclusion of the resolution. These portions of the Monaco Memo should be studied intently by every compliance professional as they lay out what the Department of Justice (DOJ) will require to grant discounts under the FCPA Corporate Enforcement Policy. Today, I want to look at the provisions regarding monitors and monitorships. In many ways, they are some of the most interesting parts of the Monaco Memo.

The section on monitors and monitorships is broken down into three parts; (1) criteria for determining if a monitor is warranted; (2) criteria for selection of a monitor; and (3) monitor oversight. I am going to focus on the first prong, the criteria for determining if a monitor is warranted. You may recall the prior test to determine whether a monitor was warranted was last

articulated in the Benczkowski Memo. The test basically had an organization implement an effective compliance program and then test it. However, now there is a 10-factor test, which as Washington & Lee University, School of Law Professor Karen Woody says, greatly increases the temperature on corporations. The 10 factors are:

  1. Whether the corporation voluntarily self-disclosed the underlying misconduct in a manner that satisfies the particular DOJ component’s self-disclosure policy;
  2. Whether, at the time of the resolution and after a thorough risk assessment, the corporation has implemented an effective compliance program and sufficient internal controls to detect and prevent similar misconduct in the future;
  3. Whether, at the time of the resolution, the corporation has adequately tested its compliance program and internal controls to demonstrate that they would likely detect and prevent similar misconduct in the future;
  4. Whether the underlying criminal conduct was long-lasting or pervasive across the business organization or was approved, facilitated, or ignored by senior management, executives, or directors (including by means of a corporate culture that tolerated risky behavior or misconduct, or did not encourage open discussion and reporting of possible risks and concerns);
  5. Whether the underlying criminal conduct involved the exploitation of an inadequate compliance program or system of internal controls;
  6. Whether the underlying criminal conduct involved active participation of compliance personnel or the failure of compliance personnel to appropriately escalate or respond to red flags;
  7. Whether the corporation took adequate investigative or remedial measures to address the underlying criminal conduct, including, where appropriate, the termination of business relationships and practices that contributed to the criminal conduct, and discipline or termination of personnel involved, including with respect to those with supervisory, management, or oversight responsibilities for the misconduct;
  8. Whether, at the time of the resolution, the corporation’s risk profile has substantially changed, such that the risk of recurrence of the misconduct is minimal or nonexistent;
  9. Whether the corporation faces any unique risks or compliance challenges, including with respect to the particular region or business sector in which the corporation operates or the nature of the corporation’s customers; and
  10. Whether and to what extent the corporation is subject to oversight from industry regulators, or a monitor imposed by another domestic or foreign enforcement authority or regulator.

The old Benczkowski Memo test is found in factors 2 and 3. However, factor 1 is whether or not the company self-disclosed the incident(s) at issue. Moreover, factors 4-6 all related to conduct and actions when the illegal activity occurred, not after discovery and self-disclosure. Factor 4 relates to the length or pervasiveness of the conduct and whether senior management was involved. Factor 5 reviews “the exploitation of an inadequate compliance program or system of internal controls.” Factor 6, asks if compliance personnel were involved or were basically negligent in failing to “appropriately escalate or respond to red flags.” Factors 7-10 refine company actions post-reporting and do relate to actions after a company became aware such as investigations and remedial actions (factor 7), a reduction in the company’s risk profile (factor 8), or unique regulatory or business challenges (factors 9 and 10).

The Monaco Memo states, “prosecutors will not apply any general presumption against requiring an independent compliance monitor (“monitor”) as part of a corporate criminal resolution, nor will they apply any presumption in favor of imposing one.” The Monaco Memo also states, “Prosecutors should analyze and carefully assess the need for a monitor on a case­ by-case basis, using the following non-exhaustive list off actors when evaluating the necessity and potential benefits of a monitor.” Finally, the DOJ believes “compliance monitors can be an effective means of reducing the risk of further corporate misconduct and rectifying compliance lapses identified during a corporate criminal investigation.” This statement leads me to believe the DOJ is very concerned about corporate recidivism. Whatever the ultimate reasons are it does appear that, as Professor Woody noted, the heat is definitely turned up.

One thing did strike me about this list is that provides a clear roadmap for compliance professionals to use in proactive manner. You now know the precise factors the DOJ will review so you can look at them on an ongoing basis to (1) determine if your organization has issues which need to be addressed; (2) allows you to remediate before the government comes knocking or you have to self-disclose; and (3) if you use an independent third-party as a part of this proactive process, you can document compliance if you need to do so going forward if the government comes knocking independently of your self-reporting.

I hope you will join me for my next post to wrap up with some final thoughts.