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Daily Compliance News

Daily Compliance News: March 8, 2024 – The DOJ Whistleblower Day 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 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.

In today’s edition of Daily Compliance News:

  • The DOJ announces a whistleblower program.  (WSJ)
  • More from DAG Monaco. Changes to ECCP regarding AI. (Compliance Week)
  • The NYT asks for Boeing whistleblowers. (NYT)
  • SEC prepares to be sued for pro- and con-climate reporting rules. (FT)

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

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FCPA Compliance Report

FCPA Compliance Report – Nick Gallo on The Ethics and Compliance Optimization System

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes back Nick Gallo, co-CEO at Ethico, to discuss its Ethics and Compliance Optimization System.

Nick Gallo, co-CEO of Ethico, is a seasoned professional with a robust background in ethics and compliance, and a key player in the development and promotion of Ethico’s ethics and compliance optimization system. Gallo’s perspective on the topic of ethics and compliance optimization systems is shaped by his belief in a comprehensive, integrated approach to managing compliance efforts. He sees this system as a next-generation tool that interacts with other data pools, generating more analytics and insights. His experience has led him to advocate for a centralized repository for various types of business information, which can be accessed by compliance teams for better visibility across all data silos within an organization. Gallo also stresses the importance of automation and integration to eliminate manual and repetitive tasks, allowing compliance professionals to focus on more strategic and value-added activities.

 

Key Highlight:

  • Creating a centralized system for streamlining ethics and compliance
  • Why compliance needs a centralized data system for compliance professionals
  • The prevalence of retaliation in organizations
  • Leveraging data for proactive risk mitigation

Resources:

Nick Gallo on LinkedIn

Ethico

Ethics and Compliance Optimization System

Tom Fox

Instagram

Facebook

YouTube

Twitter

LinkedIn

For more information on Ethico and a free White Paper on top compliance issues in 2024, click here.

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Blog

Pre-taliation Protection Extends to Third Parties

The Securities and Exchange Commission (SEC) has been cracking down on companies that engage in pre-taliation, imposing increasing fines. This was evident in the recent case of JP Morgan,  which faced an $18 million sanction for including a pre-taliation clause in their contracts. This enforcement action highlighted companies’ importance in addressing pre-taliation risk by implementing contract language that protects individuals’ rights to report misconduct. Matt Kelly and I recently had the chance to take a deep dive into the decision in a recent episode of Compliance into the Weeds.

Corey Schuster, co-chief of the Asset Management Unit in the SEC Division of Enforcement, said in an SEC Press Release, “Whether retail or otherwise, must be free to report complaints to the SEC without interference. Those drafting or using confidentiality agreements must ensure that they do not include provisions impeding potential whistleblowers.” Gurbir Grewal, Director of the SEC Enforcement Division, added,  “Whether in your employment contracts, settlement agreements or elsewhere, you simply cannot include provisions that prevent individuals from contacting the SEC with evidence of wrongdoing.” Matt noted in his blog post on the case, “SEC enforcement against pre-taliation is not exactly news, since the agency has been filing such cases since 2016 — but until now, those enforcement actions have always been about companies using pre-taliation clauses in contracts with employees. Now we have our first case over pre-taliation against customers — and it came with the biggest pre-taliation fine we’ve ever seen.”

Pre-taliation occurs when a company restricts individuals from speaking out about corporate misconduct to regulators. While previous pre-taliation cases primarily focused on restrictions placed on employees, the JP Morgan securities case marked a significant shift. For the first time, the SEC sanctioned a company for imposing a pre-taliation clause on customers. This expands the range of individuals who may fall victim to pre-taliation and underscores the need for companies to be vigilant in their compliance efforts.

Companies must understand that pre-taliation clauses are problematic, regardless of whether they are included in employment contracts, settlement agreements, or elsewhere. The SEC has clarified that provisions preventing individuals from contacting the SEC with evidence of wrongdoing are unacceptable. Compliance officers must conduct regulatory assessments to understand applicable laws and review contracts for problematic language.

The fines imposed by the SEC for pre-taliation cases have been increasing over time. In the case of JP Morgan securities, the $18 million sanction was the largest fine ever seen for a simple fix. The remediation action required in these cases is relatively straightforward: companies must delete the problematic language from their agreements and inform anyone who signed the old language that they are free to report misconduct to the SEC or any other regulator. While the mechanics of executing this remediation may be challenging for large organizations with contracts stored in different data warehouses, the basic idea remains the same.

It is worth noting that in most pre-taliation cases, companies rarely enforce the pre-taliation clauses. They often become an afterthought, and it is only years later that companies realize their mistake and attempt to rectify it. The SEC’s message is clear: companies must proactively identify and correct problematic language in their contracts to avoid facing significant fines.

The CBRE pre-taliation enforcement action serves as an example of effective remediation practices. CBRE swiftly identified and corrected problematic clauses, updated its code of conduct, and provided training on SEC rules to its compliance team. This proactive approach helped them avoid more severe penalties and garnered praise from the SEC. Here, Kelly noted,

  • Within one month of learning about the SEC investigation, revising all its U.S. severance agreement templates to assure compliance was followed by an audit of similar agreements worldwide, reviewing some 300 templates used by CBRE affiliates in 54 countries.
  • We are updating the CBRE Code of Conduct to add new language against pre-taliation.
  • Training more than 50 members of the compliance team globally on the Rule 21F-17 language added to all relevant templates;
  • They were undertaking a mandatory re-certification process, where more than 100,000 employees worldwide certified that they had reviewed the updated Code of Conduct and attested to their understanding that they were always free to bring concerns to regulators without any advanced notice to CBRE.

Compliance officers face the challenge of balancing various factors when addressing pre-taliation risk. They must consider the impact of state laws, federal whistleblower protection laws, and securities laws that may apply to their company. Conducting a regulatory assessment and thoroughly reviewing contracts can help identify potential areas of concern.

In conclusion, the SEC’s increasing fines for company pre-taliation highlight the importance of compliance and the need for companies to address pre-taliation risk. Companies must eliminate pre-taliation clauses from their contracts and ensure individuals can report misconduct to regulators. Companies can mitigate the risk of facing significant fines and reputational damage by taking proactive measures and conducting thorough assessments.

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Compliance Into the Weeds

Compliance Into The Weeds: Pre-Taliation is Illegal as to All

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 recent SEC enforcement action for pre-taliation against JPMorgan and what it means for whistleblower programs going forward.

The Securities and Exchange Commission (SEC) has been ramping up fines for companies found guilty of retaliation, as evidenced by the recent JP Morgan securities case, which resulted in an $18 million sanction. This development underscores the importance of compliance and the need for companies to protect individuals’ rights to report misconduct. Tom views this as a significant shift, expanding the range of individuals who may be affected by retaliation claims. He predicts a broader legal discussion and increased protection for those who bring claims related to misconduct. Matt emphasizes the need for companies to be proactive in preventing retaliation. He points out that enforcement has been increasing since 2016 and that companies should already be aware that they cannot restrict employees from reporting wrongdoing to the SEC. Join Tom Fox and Matt Kelly as they delve deeper into this topic on the Compliance into the Weeds podcast.

Key Highlights:

  • The underlying facts
  • Expanding Retaliation Risk in Corporate Settings
  • Retaliation Clauses and Whistleblower Protection
  • CBRE’s Swift Remediation Efforts and SEC Settlement

Resources:

Matt on Radical Compliance

 Tom 

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FCPA Compliance Report

Compliance Lessons from Venice – Into The Lion’s Mouth

In Part 3 of this special 3-episode series, we explore how Venice created the first modern hotline and whistleblower reporting system. Whistleblower and hotline reporting systems in compliance programs are crucial tools for organizations, providing a confidential platform for employees to report misconduct. Fox emphasizes the value of using an external hotline system, which offers an additional layer of anonymity and impartiality and can bring specialized expertise that may be difficult to match within an organization.

He also highlights the role of hotlines in collecting detailed information, which can provide greater insight into situations and help protect companies from accusations of negligence or wrongdoing. Fox underscores the need for hotlines to inspire employee confidence, offer on-demand support from subject matter experts, and provide in-built litigation support and avoidance tools. Join Tom Fox in this episode of the Compliance Lessons from Venice podcast to delve deeper into the significance of hotline reporting systems in compliance programs.

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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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Innovation in Compliance

Breaking the Silence: How Speaking Up Enhances Corporate Cultures – Kenneth McCarthy on Non-Retaliation and Protections for Those 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 2, Tom Fox visits with Kenneth McCarthy on the importance of non-retaliation and protections for those who speak up.

Kenneth McCarthy is a seasoned professional with a diverse background in government and entrepreneurship and a wealth of experience in handling whistleblowers, including sexual harassment cases. Kenneth’s perspective on addressing sexual harassment retaliation and encouraging reporting in workplaces is rooted in his belief in the importance of non-retaliation protocols and processes. He emphasizes the need to create a safe and supportive environment for individuals to report concerns, particularly in cases of sexual harassment. Drawing from personal experiences, he has seen the damaging effects of retaliation on individuals’ willingness to speak up and the potential legal and reputational implications for employers who fail to protect whistleblowers. Join Tom Fox and Kenneth McCarthy as they delve deeper into this topic in this episode.

 Key Highlights:

  • Systemic Retaliation in Sexual Harassment Cases
  • Creating a Safe Reporting Environment
  • The Crucial Role of Empowered Bystanders
  • Encouraging Bystanders: Protecting and Supporting Witnesses

Resources:

Kenneth McCarthy on LinkedIn

Integrity by McCarthy

Case IQ

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FCPA Compliance Report

FCPA Compliance Report: Adam Pollock – Mission Driven Law: Serving the Greater Public Good

Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. In this episode, Tom Fox welcomes Adam Pollock, co-founder of PollockCohen and Qui Tam/FCA expert.

 Adam Pollock is an experienced lawyer with a unique blend of expertise in computer science and law. Having studied computer science at the University of Michigan before transitioning into law at the University of Pennsylvania, Pollock has spent over 15 years in the legal field, specializing in white-collar defense, Qui Tam cases, False Claims Act cases, whistleblower suits and public advocacy. His law firm’s impactful public advocacy cases is rooted in a mission-driven approach, focusing on cases that serve a greater public good. He cites examples such as challenging the government over the regulation of menthol cigarettes, which disproportionately affect the African American community, and fighting for the rights of New York City retirees. Pollock’s work is driven by a desire to create positive change and make a difference. Join Tom Fox and Adam Pollock as they take a deep dive into these topics and more on this episode of the FCPA Compliance Report podcast.

 Key Highlights

·      How far back Qui Tam case go in history

·      The intersection of Qui Tam, FCA and whistleblower cases

·      Mission Driven Litigation

·      Private Attorney Generals?

·      The FCA at the Supreme Court

Resources

Adam Pollock on LinkedIn

PollockCohenLLP

Tom Fox

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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Internal Reporting and Whistleblowers During Layoffs

In Houston, we have experienced energy companies laying off upwards of 30% of their workforce in the US and abroad. Employment separations can be one of the trickiest maneuvers to manage in the spectrum of the employment relationship. Even when an employee is aware layoffs are coming, it can still be quite a shock when Human Resources (HR) shows up at their door and says, “Come with me.” However, layoffs, massive or otherwise, can present some unique challenges for the FCPA compliance practitioner. Employees can use layoffs to claim that they were retaliated against for various complaints, including those for concerns that impact the compliance practitioner. Yet there are several actions you can take to protect your company as much as possible.

These actions allow you to demonstrate that any laid-off employee was not separated because of a hotline or whistleblower allegation but due to your overall layoff scheme. However, it could be that you may need this person to provide your compliance department additional information, to be a resource to you going forward, or even a witness that you can reasonably anticipate the government may want to interview. If any of these situations exist, if you do not plan for their eventuality before you lay off the employee, said (now) ex-employee may not be inclined to cooperate with you going forward. Also, demonstrating that you are sincerely interested in a meritorious hotline complaint may keep this person from becoming an SEC whistleblower.

Three Key Takeaways:

  1. An employment separation is critical if an internal report has been made.
  2. Have appropriate language in your separation agreement.
  3. Treat terminated employees with dignity and respect.
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Daily Compliance News

Daily Compliance News: July 5, 2023 – The Too Big to Manage 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.

  • More on CA Supreme Court expansion of whistleblower protection. (Law360)
  • Are banks too big to manage? (WSJ)
  • SEC charges window maker and its ex-CFO over accounting violations. (Reuters)
  • Corruption still bedevils Lebanon. (PBS)