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FCPA Compliance Report

Tom Fox has practiced law in Houston for 30 years and now brings you the FCPA Compliance and Ethics Report. Learn the latest in anti-corruption and anti-bribery compliance and international transaction issues, as well as business solutions to compliance problems.
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Jul 16, 2018

Over this five part series I have been visiting with Caterina Bulgarella on the recently released white paper by SAI Global, entitled “Predicting Risk: A Strategic Culture Framework for the C-Suite” (the “white Paper”). Bulgarella is a cultural architect and ethics collaborator with SAI Global and the author of the white paper. In the paper, she introduced a strategic culture framework which compliance professionals and companies can use to not only help them assess their ethical culture but, equally important, a framework to map ethics to their business process in a manner which improves ethics and compliance and improves overall business processes leading to more robust efficiencies and greater profitability. In Part V, we conclude with a review of the ins and outs of ethical reasoning and take a veiled look into the future.

We began with a discussion of common biases that might influence employees to make the right ethical decision and how entities might able to manage this problem. Bulgarella noted the most common bias is that employees think they are much more ethical than their co-workers. This can work to give employees license to engage in unethical behavior, rationalizing that everyone else is doing it or even through some type of internal balance sheet analysis figuring the company may owe them something. This can also work to create a type of righteousness that, once again, allows employees to rationalize bad conduct.

Bulgarella says it starts with a re-architecture to get employees to do the right thing. It begins with the insights derived from seeking and providing feedback. This also speaks to the complexity of managing corporate values in a way that activates our moral identity without making us righteous and a complacent. Sometimes even feeling loyalty to the group can impinge ethical decision-making or ethical behavior so care must be taken around this bias as well.

Bulgarella believes that organizations developing loud and clear speak up cultures “experience high ethical efficacy”. They are a fundamental part of an ethical culture and both speaking up and silence communicate information to an organization. Bulgarella believes they are two sides of the same coin and that that speaking up and silence are properly viewed as a part of a process and not discrete acts. Employees will not simply begin to speak up unexpectedly. There must be training and, more importantly, trust by employees that their voices will be heard, and there will be no retaliation. This means senior leadership and middle managers must seek feedback on an ongoing basis to engender that trust and relationship. Bulgarella says if that trust is not present, there will be what she termed as “futility of voice” which she identified as one of the most disempowering factors employees face in determining whether to speak up or look the other way.

I asked Bulgarella on why silence is so powerful and what can be its significance. She said, “silence can speak a thousand words.” If a survey is conducted and nobody participates, that says quite a bit about your corporate culture. If employees are asked to provide feedback and everybody has only positive things to say about the topic or issue, that simply is a disconnect with “human nature, silence a disguised as voice.” This means that instead of being satisfied that 95% of respondents report that the things are great, you are compelled to go deeper and find out what is going on.

We then turned to the future and where the framework, could be going and how corporations can utilize the framework to improve not only their culture and values but their business performance as well. Bulgarella emphasized the framework is a tool help navigate complexity. She has seen organizations use the framework in variety of ways to manage risk and ethical performance. Moreover, the framework is a strategic tool that can be used to assess and measure culture, to recalibrate the key cultural determinance, to hold stakeholders accountable and to help executive teams and Boards take a comprehensive look at the risk profile of their organizations. The framework can deliver a very concise and powerful map of both risk and ethical performance because it cuts across different layers of culture as it provides actionable guidance for the reason that it highlights a key priority.

The framework is a tool to use to gauge the effectiveness and impact of ethics and compliance practices. It is well-known that effective compliance and ethics programs can reduce dilemmas and increase ethical capacity. If they cannot move the needle in those two directions, they are likely missing the mark when it comes to impact. To make progress on the practices we have considered though the framework clearly demonstrates a commitment to creating the internal pathways to a strong, vibrant and healthy listener culture.

Yet, as the white paper notes, in “its simplest implementation, the framework can be used to inform internal discussions on culture and risk. It can also be leveraged to orient the work of independent monitoring committees and create a scorecard of culture and risk for the board to review regularly.”

For a fully copy of “Predicting Risk: A Strategic Culture Framework for the C-Suite” click here. For more information on SAI Global, click here.

Jul 16, 2018

I am joined in this five-part series by Caterina Bulgarella. We are discussing the recently released white paper by SAI Global, entitled “Predicting Risk: A Strategic Culture Framework for the C-Suite” (the “White Paper”). Bulgarella is a cultural architect and ethics collaborator with SAI Global and the author of the white paper. In this white paper, she introduces a strategic cultural framework which compliance professionals and companies can use to not only help them assess their ethical culture but, equally important, a framework to map ethics to their business process in a manner which improves ethics and compliance and improves overall business processes leading to more robust efficiencies and greater profitability. In Part IV, we consider the Wells Fargo fraudulent accounts scandal within the structure of the framework.

Bulgarella began by noting that the culture determinants that created systemic risk were largely in the red zone, presaging Wells Fargo’s cultural and ethical failures. However, while the culture determinants that shape ‘Delegation of Ethical Dilemmas’ were solidly red, Wells Fargo did possess some degree of ethical capacity, as demonstrated by the fact that several employees tried to blow the whistle. In terms of culture maturity, Wells Fargo oscillated between the conditions of immature and ambivalent; the two culture types that expose an organization to high levels of risk.

When there is a discussion around tone at the top and middle, we are referring to the extent to which leaders and managers acknowledge ethical principles and behave in a way that is consistent with those principles. This leads to the manner in which leadership and power are exercised in an organization, which is a huge component of the culture of an organization and these two huge components of a determination of whether the organization is delegating ethical dilemmas or not as well as the nature of those dilemmas. The type of pressure that may arise from senior and middle are all very relevant.

The next step is to see how senior leaders and middle managers shape any ethical dilemmas. Bulgarella related that if a leader holds an ethical belief but provides a different set of signals in their leadership style, it may well create a set of competing priorities. This can lead to the types of pressure we discussed in prior posts that may lead to ethical lapses.

Saying something like “just get it done” may well blind a leader or manager to tradeoffs. Bulgarella characterized this as a “form of motivated blindness” which has an interesting way of manifesting and resolving itself. Finally, any form of abusive conduct when it comes to leaders and managers is likely to weaken ethical principles.

So how did a company whose corporate values included integrity, respect and principled performance fall into such disrepute? According to the white paper, it actually began in the 1990s when the then Chief Executive Officer (CEO), Dick Kovacevich, “told Fortune magazine that banks had to figure out how to sell money. He believed that financial instruments were consumer products, the same way “… Wal-Mart sells socks or Home Depot sells screwdrivers. Much like those businesses, financial services is huge ($1.9 trillion in assets) and fragmented.”” Unfortunately this innovation for the bank was not matched with its ethical capacity as regional and business unit autonomy led to not only increased sales pressure but almost slavish devotion to the internal sales theme “8 is great” which required salespersons to sell eight Wells Fargo financial products to every Wells Fargo customer; whether they needed or even wanted them. Finally, stakeholders began to engage in retaliatory behavior to those employees who raised ethical concerns that fraudulent accounts were being created. 

Utilizing the framework, the culture coordinate of delegation of ethical dilemmas has the following observations.  The determinant of Principals of Conduct noted, “Wells Fargo’s internal and external values were strongly at odds. On the one hand, the company proclaimed its commitment to the customer and fostering trust. On the other, it pushed employees to sell ‘customers as many products as possible.’” Under the determinant Leadership & Power, regional, local and business unit leaders used their influence to force overly ambitious sales goals on employees. Finally, under the determinant of Reward & Sanctions, “Incentives were tied to cross-selling: Salespeople received between 15% to 20% of bonus compensation if they met their sales goals. Though roughly 5,000 salespeople were let go between 2011 and 2016, these layoffs touched only 1% of the workforce.”

In the culture coordinate of Ethical Capacity the white paper noted the following observations. Under the determinant of Ethical Ownership, it stated, “The company’s official position was that the businesses owned ethics, yet senior leadership framed the scandal as a ‘compliance and operations’ problem.” Under the determinant of Ethical Reasoning, it stated, “The ethics program trained employees to spot conflicts of interest and provided them with a Code of Conduct—valuable but inadequate resources to help employees cope with the sales pressure they experienced daily.” Finally, under the determinant of Ethical Voice was the following, “Wells Fargo fostered a culture of threat, intimidation, and retaliation to discourage employees from speaking up. Five percent of the workforce eventually joined forces to file a petition that asked the company to discontinue its cutthroat culture.” Bulgarella concluded by relating, “What’s interesting, however, is that the Wells Fargo story is a cautionary tale for leaders in general because it demonstrates how they can be in a way victimized by their own ambitions, innovation and vision. This is something worth keeping in mind. The science tells us that it’s not always the case that unethical outcomes derive from malicious intent. You may give into an excessively ambitious yet very enticing vision.”

Tomorrow we conclude with a look at the ins and outs of ethical reasoning and then take a veiled look into the future.

For a fully copy of “Predicting Risk: A Strategic Culture Framework for the C-Suite” click here. For more information on SAI Global, click here.

Jul 16, 2018

Over this five part series I am visiting with Caterina Bulgarella on the recently released white paper by SAI Global, entitled “Predicting Risk: A Strategic Culture Framework for the C-Suite”(the “White Paper”). Bulgarella is a cultural architect and ethics collaborator with SAI Global and the author of the white paper. In the white paper, she introduces a strategic cultural framework which compliance professionals and companies can use to not only help them assess their ethical culture but, equally important, a framework to map ethics to their business process in a manner which improves ethics and compliance and improves overall business processes leading to more robust efficiencies and greater profitability. In Part III, we discuss the gap between an organization’s espoused ethics and its actual values, how this can lead to tension and the risks that arise from conflicting priorities and goals.

We began with a review of culture and how it can be viewed through the lens of the framework. Bulgarella emphasized that the architecture of culture is complex. It is not just about behaviors, not just about Codes of Conduct and/or policies and procedures. It is about key beliefs and the manner in which systems and processes are designed. Moreover, it also consists of the norms and expectations. In looking at each culture determinant, the framework addresses the specific systems addresses norms and mindsets that should be managed. The framework tells us that if we want to manage delegation of ethical dilemmas, we should look at principles of conduct. If we want to look into principles of conduct that we should not just stop at corporate values but also consider the implicit norms when it comes to leadership and power in an organization.

So in addition to making ethical factors a consideration in the hiring of and promotion to senior management, you need to consider senior leadership’s behavior and what they believe their power is based upon. When it comes to values, do companies put their money where the mouth is and financially reward employees who do business ethically and in compliance and not simply those who make their numbers every quarter? The framework allows you to consider not only whether employees receive training but also is it targeted training and is the training effective? The bottom line is that the framework helps an organization understand the contradictions that define culture. It highlights the different directions in which people are pulled, the gap between what is said and what is done. Finally, it addresses the way in which people are likely to respond to these inconsistencies.

The two cultural dimensions in the framework, ethical capacity and delegation of ethical dilemmas, are helpful in considering both the different types and different levels of risk. The more dilemmas present in an organization, the more pressure will be forced upon employees and the greater likelihood they will make poor ethical decisions. The key is to have both dilemmas working in concert so that when culture is mature in your organization, the company works hard to address and contain dilemmas, while creating ethical capacity. Conversely, if your organization has an immature culture, your dilemmas are widespread and the ethical capacity is a law between the two. In addition to being overly focused on profit, these organizations do not help people address the ethical tradeoffs they are likely to encounter.

In addition to the immature and ambivalent organizations, Bulgarella identified two other types of organizations, the righteous organizations and mature organizations. Righteous organizations avoid delegated dilemmas but lack ethical capacity, thereby experiencing lower risk than immature organizations. However, their risk is higher than mature organizations since people don’t have much ethical capacity. These organizations create high risk when they impose their ethical principles on people in a cult-like manner, disabling the muscle of independent reasoning.

Ambivalent organizations experience less risk than immature organizations due to their higher ethical capacity, but Bulgarella believes they can pose greater risk than mature organizations due to their tendency to delegate dilemmas. By forcing its employees to make difficult ethical choices, an ambivalent organization’s exposure to systemic risk is still high. Employees may blow the whistle or resist the internal pressure, but ethical dilemmas are so widespread that employees do not have the trust to feel their company will stand behind them when they make a difficult, yet ethically correct decision. This means that an ambivalent organization remains exposed to considerable risk and should be monitored closely.

Bulgarella concluded with some thoughts on how risk changes across these four types of organizations. In mature organizations, ethical dilemmas are addressed at the top and the ethical capacity is consistently matured. This makes its business model low risk and growth is ethical. In righteous companies, there are clear ethical standards but little is done to build ethical capacity. This creates moderate business risk and such inflexible principles may inhibit ethical capacity. In ambivalent organizations ethical trade-offs are pushed on employees, even as the company takes steps to build ethical capacity. This creates high business risk, as there is intense pressure, which, in turn, creates widespread misalignment between stated and actual goals. Finally, there is the immature organization where there is a high delegation of dilemmas combined with low ethical capacity. This makes for very high risk and the business’ growth is generally not sustainable.

Tomorrow we apply the culture framework to a real-life case study, Wells Fargo.

For a fully copy of “Predicting Risk: A Strategic Culture Framework for the C-Suite” click here. For more information on SAI Global, click here.

Jul 16, 2018

Over this five-part series I, visit with Caterina Bulgarella on the recently released white paper by SAI Global, entitled “Predicting Risk: A Strategic Culture Framework for the C-Suite” (the “White Paper”). Bulgarella is a cultural architect and ethics collaborator with SAI and the author of the white paper. In this white paper, she introduces a strategic culture framework which compliance professionals and companies can use to not only help them assess their ethical culture but provides a framework to map ethics to their business process in a manner which improves ethics and compliance and improves overall business processes leading to more robust efficiencies and greater profitability. In this Part II, we discuss what the Board of Directors and C-Suite needs to know about ethical risks.

Bulgarella began by noting that the strategic culture framework is really a model for maximum impact for organizations to manage risk and ethical performance practically. It is based on two dimensions of culture. The first is whether your organization is delegating dilemmas, so when the cultural dilemmas after left unaddressed, employees are more likely to face difficult tradeoffs and make poor decisions. This translates that delegation of ethical dilemmas creates unwanted risk. The second dimension is whether an organization is creating an ethical capacity, which are the resources, practices and built-in resilience that helps employees to deal with ethical challenges successfully.

Companies can use the strategic culture framework to create a realistic risk profile. It lays out six determinants, three each within the dimensions listed above. The framework forces organizations to look at the ethical tradeoffs people are dealing with day in and day out and the implications of those trade-offs. The framework evaluates the capacity that your organization has internally; as that will help you predict how people respond to ethical challenges. I asked Bulgarella if she could provide an example.

She responded with the following example. Assume we both work for Acme and one of our values is safety. Acme trains its employees on safety procedures and that tells us that safety matters now but Acme also puts a great deal of emphasis on cost effectiveness. This means Acme prides itself on running things lean and fast. Safety and cost effectiveness do not have to butt heads all the time, but if there is too much emphasis on cost effectiveness; safety will eventually suffer if Acme has never looked at the relationship between safety and cost effectiveness. If the company does not understand the norms and expectations around safety and cost effectiveness, it may well face a tangible risk, that people may downplay safety to save the company money. This is where the framework comes into play as it can be the lens through which Acme can garner all the insights it needs to fully understand these dynamics and to recalibrate them to mitigate risk and increase the organization’s ethical performance.

We then turned to the three determinants of each dimension. For the dimensions of delegation of ethical dilemmas the determinants are: (1) What are your organization’s Principals of conduct? Under this determinant you need to know if your Principals of Conduct are clearly set out, is there a conflict between these standards and your organization’s values and are potential conflicts being addressed? (2) What is your organization’s leadership behavior and how does management exercise power? Here you need to know what the criteria is for promotion to or hiring of senior management; are senior management both talking the talk and walking the walk and, finally, do senior leadership view their roles as one of responsibility or entitlement? (3) What are both the incentives and discipline within your company? Under this determinant, you need to assess what are both the rewards and sanctions used by your organization, how are top performers treated when they act unethically and are employees rewarded for doing business ethically and in compliance?

For the dimension of ethical capacity the determinants are: (1) What is the ethical ownership? Under this determinant, you assess if your ethics and compliance responsibility is shared with the business units or siloed in compliance, is your company leadership being held accountable through ethical goals and are ethics framed as a chore or opportunity within the company? (2) What is the ethical reasoning? Here you need to consider whether you provide effective, targeted training with follow up communications, what company factors or experiences may hamper ethical reasoning in your organization and whether managers promote an open dialogue around ethical issues. (3) What is the ethical voice? This determinant deals with the channels through which information on ethical lapses are raised in the company; do they exist, is there a cost to sharing bad news or being an internal whistleblower and how has the company used such employee feedback?

Tomorrow we consider the gap between an organization’s espoused ethics and its actual values.

For a fully copy of “Predicting Risk: A Strategic Culture Framework for the C-Suite” click here. For more information on SAI Global, click here.

Jul 16, 2018

Over a five-part series I will visit with Caterina Bulgarella on the recently released white paper by SAI Global, entitled “Predicting Risk: A Strategic Culture Framework for the C-Suite” (the “White Paper”). Bulgarella is a cultural architect and ethics collaborator with SAI and the author of the white paper. In this white paper, she introduces a strategic cultural framework which compliance professionals and companies can use to not only help them assess their ethical culture but provides a framework to map ethics to their business process in a manner which improves ethics and compliance and improves overall business processes leading to more robust efficiencies and greater profitability. Today we introduce the strategic cultural framework.

Bulgarella believes we are in a time of profound change and the speed at which things are changing. The fourth industrial revolution is happening now and bringing sweeping change. Over the next five years, 50 billion machines will be connected across the globe, on pace to revolutionize the way companies and people operate. This makes everything uncertain and ambiguous and that the changes are rewriting our value system faster than we can even realize. She provided a couple of examples. More generally, we know technology is changing how we act, operate, deliver and do many other things. More specifically, simply consider Artificial Intelligence (AI) and how this tool is going to cause a loss in privacy and confidentiality. Some of the questions it raises is whether these changes are ethical or not? Is the pace of change and the change itself a reasonable price to pay to or should we be more cautious?

When you overlay all this with the complexities of not only the modern world but also the current business environment, you can see the need for a more coherent framework for discussion and analysis of ethics and compliance. What may have been acceptable business practices can change literally overnight; here you can witness the number of companies that are scrambling to explain their contracts with ICE and that they were not involved with the child separation policies instituted by the Trump Administration. With so much at stake and with so many variables, companies need a more robust framework to help them make not only the right decision but ethical decisions as well.

The strategic cultural framework was created to help improve many of these corporate practices in tangible ways. It integrates a wealth of insights from behavioral science, as what we know about human behavior today is vastly more precise than what we knew even five years ago. Many of these insights have not been incorporated in organizational practices and that is where the strategic cultural framework comes in, to connects the dots. The strategic cultural framework explains how culture affects people’s ability to do the right thing and what risks an organization faces.

The framework is a model for maximum impact because it identifies the two culture dimensions that organizations should actively manage to reduce risk and increase ethical performance. The first dimension is delegation of ethical dilemmas. This is the extent to which the culture of an organization creates dilemmas and leaves these dilemmas un-addressed. The second dimension is distance to which the culture builds ethical capacity. This means that the culture must build resources, practices, and resilience that help people to deal with ethical challenges successfully.

Bulgarella noted that while there is really a broad and deep discourse around corporate values and around the idea of building business ethics around corporate values, she does not believe there is sufficient dialogue as to what organizations actually value. It is what the organization actually values that ultimately shapes how things are done and what is given priority within that organization. Company values shape the decision-making and execution and it is critical to understand them, together with the consequences they can create and risks they entail.

Bulgarella concluded with some thoughts on corporate culture, which she characterized as “the DNA of an organization which goes to the heart of an organization’s identity and purpose.” This is really what an organization believes and it is the “source of the substratum to all that is human, all the human endeavors in an organization.” However, she also cautioned that culture is a complex architecture. It is important to keep in mind the complexity of every corporate culture, when trying to implement any for best practices ethics and compliance program.

Bulgarella listed several different complexities of corporate culture and how corporate culture shows up in the way an organization’s systems and processes are designed; it shows up in the way people behave in their types of expectations and it can even show up in their mindset. This can make it difficult to simply find one formula or one definition for culture. I would encourage people to focus on what the organization beliefs and values and recognized the corporate values of an organization’s belief system. That distinction can be critical.

Tomorrow, what does senior management and a Boards of Directors and C-Suite need to know about ethical risk?

For a fully copy of “Predicting Risk: A Strategic Culture Framework for the C-Suite” click here. For more information on SAI Global, click here.

Jul 16, 2018

In the new FCPA Corporate Enforcement Policy, it stated that as one of the items required for a company to receive full credit for timely and appropriate remediation, “Appropriate retention of business records, and prohibiting the improper destruction or deletion of business records, including prohibiting employees from using software that generates but does not appropriately retain business records or communications”.

In this episode, I visit with  Brian Burke, partner at Shearman & Sterling and head of the firm’s Asia Litigation practice about the continued fallout since the release of the Justice Department’s new FCPA Corporate Enforcement Policy and its requirement instant messaging. We discuss the new Policy’s requirement and how companies can protect themselves. Brian can also speak to how companies can ensure the use of applications like WeChat and WhatsApp in business settings does not inadvertently threaten an employer’s subsequent ability to seek a declination or reduction in fines – and the practical measures companies can take in an effort to comply with the date retentions requirement under the Policy.

Some of the highlights include:

  • Document control and retention have been a requirement for some time, why did the DOJ feel the need to specifically address this issue?
  • Are there any enforcement actions we can look to for guidance?
  • Can you suggest any practical steps a company can take? Ban What’s App communications? Ban Instagram or any other messenger app?
  • In the era of BYOD, how does a company police this with its workforce, particularly oversees?
  • What must a company show to the DOJ to demonstrate compliance with this requirement?
  • What advice are you giving clients on this issue?
Jul 12, 2018

While dodging black cats, open ladders and broken mirrors, Jay Rosen and myself are back on this Friday the 13thto take a look at some of the top compliance stories from the past week.

  1. Want to take a deep dive into the Credit Suisse FCPA enforcement action? Check out Tom’s 3-blog post series (Part I, Part IIand Part III) and Mike Volkov’s two-part series (underlying factsand lessons learned).
  2. What’s the best way to use data to detect corruption? Enestor Dos Santos, principal economist at BBVA Research writes in Global Anti-Corruption Blog. For the full BBVA Research report clickhere.
  3. Did FCPA enforcement pick up in Q2? William Garrett explores this question in WSJ Risk and Compliance Journal.
  4. Romania's president removes chief anti-corruption prosecutor. Radu-Sorin Marinas reports in Reuters.
  5. Tony Hayward (yes, that Tony “I want my life back” Hayward) will lead Glencore’s corruption investigation. What could go wrong? Harry Cassin explores in the FCPA Blog. Is Glencore pushing the corruption risk envelope too far? David Pilling opines in the Financial Times. (sub req’d)
  6. Does AI create or simply expose ethical dilimmmas? (Hint-it’s all about the data). Vera Cherepanova explores this question in the FCPA Blog.
  7. The second half thebriberyact.com guys; Richard Kovalevsky QC leaves Chambers to move to Stewart’s. Waithera Junghae reports in GIR. (sub req’d)
  8. Is the administration’s moves against ZTE part of a larger all out trade war strategy against China and/or the rest of the world? Louise Lucas explores this question in the Financial Times. (sub req’d) New management says compliance is the top priority. See report in com.
  9. Tone at the top really does matter. PapaJohn Chairman (and former CEO) resigns from Board after using racial slur in con call with vendor. Vendor fires PapaJohn’s as client. See report in Wall Street Journal.
  10. Uber finally gets a CCO but loses its head of HR. Greg Bensinger and Sadie Gurman report in the WSJon the hire. Bensinger reports on the resignation of the head of HR in WSJas well.
  11. The Red Sox have the best record in baseball at the All-Star break. Can they avoid yet another collapse? Jay and Tom debate.

What do black cats and Friday the 13th have to do with compliance? Find out on This Week in FCPA.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 9, 2018

In this five part podcast series, I will be taking a deep dive into health care monitoring and how the pro-active use of a health care monitor can positively impact all stakeholders in the healthcare industry: the regulators, the health care industry and the consumers of health care services, the public. I am joined in this exploration with two individuals from Affiliated Monitors, Inc. (AMI), the sponsor of this series. The first is Catherine A. Keyes, Vice President of Operations and the second is Jesse Caplan is Managing Director of Corporate Oversight. In this first episode, I visit with Jesse Caplan to introduce the use of an independent integrity monitor in the healthcare sector and explain how such a monitor can increase value.

Independent integrity monitoring can be particularly valuable and important in the healthcare sector because in many way healthcare is the perfect storm for significant compliance risks, but also has a greater opportunity to mitigate those risks. Using an independent third-party compliance expert or monitor can be one strategy to help mitigate risks.

Healthcare occupies a unique space in the American business world. First of all is the size of the healthcare industry as it accounts for almost 20% of our economy. Moreover a very large portion and an ever growing portion of that money comes from the taxpayers, federal programs like Medicare, Medicaid, the VA and state funded programs. When you have lots of money being spent in a particular industry, there is always the potential for fraud, waste and abuse. Now overlay this with the public money involved, there is the potential for a False Claims Act or government action, civility or criminally. Finally, the healthcare industry is highly regulated, with most, if not, all healthcare providers, whether individuals or organizations, licensed by the state, either by a Board or state agency and some might even be licensed or certified by federal authorities.

Not every healthcare organization has a good handle on either the effectiveness of their compliance program or the compliance culture of their organization. Independent integrity monitoring can proactively assess compliance programs and culture, identify potential areas of compliance risk. Furthermore they can help mitigate or limit the adverse consequences of violations and help persuade regulators to look more favorably on an organization. 

By using an independent compliance expert to do a proactive assessment of a compliance and ethics program and culture, a healthcare organization can get a lot of value by assessing not just whether the organization has a compliance program that appears to meet all the elements of an effective compliance program but the monitor can come in and actually assess whether that program truly is effective. The assessment can identify the ethical culture of the organization, detect gaps, make recommendations to remediate those gaps and provide the organization with a particular level of comfort that the structure of the program is truly effective and that the culture of the organization is such that compliance has been embraced by the workforce throughout the organization from the top to the bottom.

In the second instance, where there is a compliance issue and the organization has the government looking at it, bringing in an independent compliance monitor can help demonstrate to the government that any compliance violations are not indicative of a systematic problem with the compliance program or the ethical culture of the company. It can show the problems have been remediated. Through monitoring, the government can feel comfortable that the organization is going to be a compliant organization going forward. Using an independent integrity monitor can help an organization avoid more severe sanctions, such as license suspension or even exclusion from a government healthcare program.

There is also value to the government of approving a monitoring relationship in a matter they are involved in. Governments and healthcare regulators want to ensure, above all, that patients and healthcare consumers receive high quality and safe care, that taxpayer money is efficiently and well spent, and that there is a healthcare industry environment and culture of compliance, transparency, and quality. An independent monitor can help the company meet these objectives and provide assurance to the government that the compliance risks have been addressed.

An independent integrity monitor can work with the government to ensure compliance with an oversight requirement, such as a Corporate Integrity Agreement (CIA) or other resolution agreement. Yet an independent compliance monitor typically is going to be an expert in compliance and ethics. The healthcare industry is incredibly complex. Hospitals have many different regulations with which they must comply, which are different from regulators under which a health insurance company must comply, which, again, are different from a medical device company. These are but some of the challenges that an independent compliance monitor needs to have expertise on. The independent monitor can come in and do a proactive assessment, identify gaps in particular areas, such as HIPPA (Health Insurance Portability and Accountability Act of 1996) privacy, data security, compliance program and internal controls.

Next up, how proactive assessments can enhance healthcare ethics and compliance programs and culture.

For more information on how an independent monitor can help improve your healthcare entity's ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 9, 2018

Over this five-part podcast series, I have been taking a deep dive into healthcare monitoring and how the pro-active use of a healthcare monitor can positively impact all stakeholders in the healthcare industry: the regulators, the healthcare industry and the consumers of healthcare services, the public. I have been joined in this exploration by two individuals at Affiliated Monitors, Inc. (AMI), the sponsor of this series. They were Jesse Caplan, Managing Director of Corporate Oversight, and Catherine Keyes, Vice President of Operations. Today, I conclude the series with Caplan on using independent integrity assessment and monitoring to limit adverse consequences.

Many compliance practitioners in the healthcare space (and those in commercial space) often ask if an independent integrity review and monitoring be helpful where an organization may have reason to believe it has an actual or potential compliance problem but has not yet been subject to an enforcement action or a Corporate Integrity Agreement (CIA)  imposed by the government. There are several reasons this is particularly true in the healthcare space. He noted that the government expects, in fact demands, that healthcare organizations self-report certain types of compliance violations. He provided some examples such as overpayments healthcare providers may have received from the government, or false or fraudulent claims that they have billed the government and certain types of privacy breaches.

Caplan believes that using an independent compliance expert can be useful in dealing with the government enforcement agency and convincing that agency to look more favorably where severe sanctions might otherwise be imposed. An independent integrity monitor can be helpful to a healthcare organization where they may have compliance violations. It can even be true with current healthcare issues such as the opioid crisis and excessive opioid prescribing.

Moreover, this is where an independent integrity monitor can be very useful when the organization thinks they have a problem. A monitor can be brought in to assess the compliance program, make recommendations for improvements and then be available to monitor the remedial recommendations as they are implemented. If an organization makes a self-disclosure or if the government comes and investigates the company, they can use the fact that they have used an independent integrity monitor to assess the compliance program and, equally importantly, themselves and they will continue to use the monitor to ensure continued compliance.

By using an independent integrity assessment, an organization can demonstrate to the government entity that the problems with the company’s compliance regime are not endemic or structural but more of an isolated incident. This can help to provide confidence to the public that they can continue to operate safely and in compliance and provide assurance to the government and regulators that it can continue to participate in the government programs with little fear of having those violations reoccur. This can have a very large impact on what types of action the government or regulator will take.

The bottom line in healthcare regulation is that government enforcement and regulatory agencies would prefer not to exclude important healthcare providers who have compliance issues. Their goal to ensure access to sufficient quality providers is a constant challenge for healthcare policymakers. Regulators generally agree that the best solution is to have providers with compliance issues remediate their problems and implement a sustainable and effective ethical compliance program. By engaging an independent compliance expert and monitor can provide the government with confidence that organization has remediated and will be an effective, compliant participant.

We conclude this episode with a few of Caplan’s thoughts on how an independent integrity monitor could have impacted two matters widely in the public eye. They are the matter of Theranos, Inc. and the opioid crisis. With regards to Theranos, a wide variety of stakeholders could have requested a truly independent come in and assess compliance at the company. It could have been the Board of Directors, the Securities and Exchange Commission (SEC), state or federal healthcare regulators or even third parties who were looking to do joint ventures with the company. Such an assessment might have saved many jobs, investments, careers and reputations.

In the opioid crisis, an independent monitor could have done the assessment around large numbers of drugs being prescribed by one doctor or prescribed to be delivered through one pharmacy. But the analysis could have gone much deeper by focusing on the corporate compliance programs, their implementation and training. It could have also looked at those who spoke up by using the hotline or other internal reporting mechanisms.

All of this means that an independent integrity monitor in the healthcare space can be used in a variety of ways and through a variety of mechanisms.

For more information on how an independent monitor can help improve your healthcare entity's ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 9, 2018

In this five-part podcast series, I am taking a deep dive into healthcare monitoring and how the pro-active use of a healthcare monitor can positively impact all stakeholders in the healthcare industry: the regulators, the healthcare industry and the consumers of health care services, the public. I am joined in this exploration with two individuals at Affiliated Monitors, Inc. (AMI), the sponsor of this series, Catherine A. Keyes, Vice President of Operations, and Jesse Caplan, Managing Director of Corporate Oversight. In this episode, I visit with Keyes to discuss how an independent integrity monitor can be used in non-disciplinary administrative proceedings.

The first scenario is around hospital conversions. Many states have laws in place to protect the public’s interest when a not-for-profit hospital is sold to a for-profit entity. The state’s Attorney General or Department of Health may impose conditions on the new entity, in some cases to prevent it from simply “flipping” the hospital and extracting the dollar value of the goodwill that was invested by the state when it was not-for-profit.

Hospitals started by charitable or religious organizations may have been acquired or approached by for-profit entities who might be interested in acquiring them. States are concerned that they simply want these healthcare institutions snapped up, so the states want to make sure that the interest of the public are really protected. There are multiple interests that the public has when a not-for-profit entity is bought by a for-profit entity; including things like making sure that the for-profit entity will exist as a healthcare provider for a reasonable period of time, they are good neighbors, that they pay taxes and if there were charities that were in place, those charities continue.

When such a conversion occurs, the purchaser may agree to a wide variety of conditions, such maintaining certain services, making capital improvements, expanding in certain areas, meeting certain public health standards (for immunizations, treatment standards, coordination of care) and addressing certain public health priorities, such as opioid overdose risks or area-specific issues like Lyme disease. An independent integrity monitor may engage in some or all of the following: review of money to be sure it is spent according to conditions; review of policies, procedures, contracts, training materials; review of assignment of assets,  e.g. donations that were earmarked for a purpose that is no longer possible; visits to the hospital to see if certain programs are functioning, to see if services are being offered as agreed-upon; interviews with staff to see how medical requirements are being met; and review of charts to see whether processes are being followed. In short there are wide variety of conditions which be in place or which the state or regulators want visibility into and a monitor can provide that visibility.

A monitor can also consider other factors, which may seem to less healthcare related but could impact a conversion. There might be an agreement for capital improvements, for example, there might be total dollar amounts to be invested, dollar amounts per year or there might be dollar amounts over a span of time. It could all depend on what the long-term plans are for the acquirer. As an acquirer typically does not make a lot of capital improvements in the first year, a regulator would need a monitor in place for some period of time to make sure the investments are made and  the money spent is actually going on capital improvements. There could be ancillary agreements such as participation in and sponsoring of community activities or education, all of which need to be monitored.

A monitor can drill down into whether the healthcare provider put out advertisements about those kinds of things and see if the public and the person or persons involved actually attended them. Another area often seen is around charitable assets, where a donor may have made a bequeath to a hospital for a specific purpose. If the specific purpose is no longer available; for instance, if it was for a hospital wing that is getting closed down and not being used for the kind of care that it was set up for, those assets might be reassigned.

A second area could be granting of licenses or Certificate of Need and the conditions that a state may impose. This could be for a new hospital, a renewal or some other healthcare facility where the state really wants to have some continued oversight. Keyes explained that while it is not substantively different than the acquisition realm, it is more quantitatively different. There may be a smaller set of conditions, that have been agreed upon. An example might be a Certificate of Need associated with the purchase of a large piece of equipment which might change the dynamics around a facility.

An independent integrity monitor extends the capability of the state agencies and regulators, it allows them to confirm that the entities are meeting the conditions. A monitor can review the paper trail indicating that the agreed-upon processes are in place and can help to keep a healthcare provider’s compliance program on a schedule, so that it does not slip too far down the list of company priorities.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 9, 2018

In this five-part podcast series, I am taking a deep dive into healthcare monitoring and how the pro-active use of a healthcare monitor can positively impact all stakeholders in the healthcare industry: the regulators, the healthcare industry and the consumers of healthcare services, the public. I am joined in this exploration with two individuals at Affiliated Monitors, Inc. (AMI), the sponsor of this series, Catherine A. Keyes, Vice President of Operations, and Jesse Caplan, Managing Director of Corporate Oversight. In this third episode, I visit with Keyes to discuss how an independent integrity monitor can be used in healthcare licensing and disciplinary proceedings.

I started off by asking Keyes about the situation where a state Medicaid Fraud Control Unit finds a provider billing for an unusually high number of patients or procedures per day. Through an investigation, the state unit finds poor documentation that looks like fraud. How can an independent integrity monitor serve as an overall part of a resolution? Keyes noted that initially such a settlement will allow the provider or clinic to continue to practice, which is important for Medicaid providers. Keeping a Medicaid practice open is often very important in some areas, where there are very few Medicaid providers, so having a Medicaid provider remain open is important, not just for the person whose business it is, but also in the community. Keeping or bringing up such a healthcare provider to professional standards is also important. Finally, it is critical all the way around to keeping pressure on the provider to make the promised changes to fix the system and it protects the public by bringing the provider in line with professional standards.

We next discussed the scenario where someone makes a complaint to a licensing board, the complaint is investigated, and the licensing board finds, among other things, that the practitioner’s patient records lack basic elements: for example, adequate notes about treatments. Keyes noted that oftentimes a complaint is made to a state regulatory agency, a licensing board, for example. It might be a dental board, it might be a medical board, it might be a chiropractic board. Most of these licensing boards have regulations that say what minimally should be included in patient records. And this is the standard you would hope that any kind of a medical provider is recording in writing. This is critical  for a patient’s medical care going forward.

Here Keyes believes that an independent integrity monitor can be an excellent option as it allows the healthcare provider to continue to practice while providing prompt feedback to the agency about whether the healthcare provider is making promised changes. This is because a straight suspension may hit the pocketbook without helping the provider make meaningful change.

Yet there is an equal if not greater benefit to the healthcare provider as the independent integrity monitor can provide tailored advice about how to bring the practice up to professional standards. Keyes provided a simple yet straight-forward example, “I once saw the difference between having a chiropractor’s friend act as a monitor and write an overly simplistic report – “the charts look fine” – and the in-depth feedback given by professional monitors: “the history of present illness needs to be more complete, including info about the effectiveness of other treatments received”.”

I asked Keyes about using an approach of an independent integrity monitor in a current situation such as the opioid crisis. She said that such use could allow an independent integrity monitor to track prescriptions and prescribers of opioids and other drugs. She said that as part of a multi-pronged approach to the opioid abuse issue, many states are looking to see who their high prescribers are and whether these are legitimate practices or just pill mills. A monitor can help a provider to put policies and procedures in place to (a) assess the underlying need for pain medication; (b) determine whether someone is actually taking the medications; (c) refer to other specialists for supplemental care: physical therapy, acupuncture, pain clinics; and (d) appropriately terminate care of patients who appear to be getting prescriptions primarily to re-sell the pills.

Yet the benefits do not end there as monitoring, as part of settlement agreement, could require the provider to reduce the number of pain patients and the quantity of pills prescribed over a certain period. An independent integrity monitor can keep the regulators informed as most state agencies do not have the staff available to track compliance with the details of such an agreement. Independent monitoring is paid for by the licensee. Such use of a monitor also works to protect the public by bringing the professional in line with national standards for assessment, treatment and follow-up of pain patients. Finally, using a monitor can allow the provider to remain open and demonstrate their commitment to improved practice. Healthcare providers are quick learners and, in some cases, putting a structured program in place is a relief.

Next up, using monitors in administrative proceedings not related to discipline and licensing issues.

For more information on how an independent monitor can help improve your healthcare entity's ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 9, 2018

In this five-part podcast series, I am taking a deep dive into healthcare monitoring and how the pro-active use of a healthcare monitor can positively impact all stakeholders in the healthcare industry: the regulators, the healthcare industry and the consumers of health care services, the public. I am joined in this exploration with two individuals at Affiliated Monitors, Inc. (AMI), the series sponsor, Catherine A. Keyes, Vice President of Operations, and Jesse Caplan, Managing Director of Corporate Oversight. In this Episode 2, I visit with Caplan on the significance of proactive assessment in healthcare ethics and compliance program in determining culture.

Caplan noted that not every healthcare participant has a good handle on how effective their compliance program is and whether the culture of the organization is such that compliance risks are likely to be timely identified, mitigated and remediated.  However an independent integrity monitor can help healthcare participants to do a thorough pro-active assessment of a healthcare organization’s ethics and compliance program and culture.

An independent compliance expert can bring a fresh set of eyes to any organization or entity. Such an expert can provide several valuable inputs to any organization including: demonstrating to the Board organization’s ethical culture and effective compliance program; identify gaps or weaknesses in the compliance program when a healthcare organization has a problem, for instance, a compliance problem where the government gets involved; provide recommendations for remediations demonstrate to government regulators the seriousness and effectiveness of the organizations compliance program; educating an organization’s workforce; and, finally, sending a strong positive message throughout the entire organization that they take compliance very seriously and expects the workforce to take it seriously as well.

There are multiple ways to conduct a pro-active assessment of an organization’s ethics and compliance program and AMI selects the style and techniques which best fit the situation. Caplan noted some of these techniques can include areview of applicable policies and procedures, whether the organization has a hotline which is use and compliance training.However, Caplan emphasized such techniques can only get you so far.

This means you need to also perform an assessment of compliance program effectiveness by a variety of mechanisms such as determining if the compliance policies and procedures are effectively implemented, whether staff are familiar with and truly understand their compliance obligations and even whether they feel they can communicate compliance and ethical concerns or questions without fear of adverse consequences.   

We next turned to how to make such an assessment. Here Caplan noted there are several ways to do so. It can include interviews with individual employees, focus groups with larger numbers of employees, visits to not only the corporate headquarters but also remote company locations and, of course, the analysis of all relevant data. He provided an example where AMI would test a hotline and how, when complaints come in, they are actually handled. Such testing would use all these techniques including employee interviews, focus groups meetings and review of data on hotline complaints and case closure rates and data.  

A proactive assessment can be used in times simply beyond when an organization may have a reason to believe that it has an ethics or compliance problem. It can be used when there is a change in leadership and the new leadership team wants to see more precisely where they may be on the ethics and compliance scale. It can also be used when there is a major acquisition or a healthcare provider establishes new business units or even goes into new markets.

In some situations an independent evaluation team may be called to work collaboratively with others such as outside counsel. It all starts with the value of the pro-active assessment that they are independent and unbiased which gives them  greater credibility with stakeholders.  However, the organization and evaluation team can and should work collaboratively to develop the work plan and target potential risk areas. There should also be collaboration in deciding findings and recommendations of the assessment to be communicated. All of this helps to provide an independent, unbiased proactive assessment of a compliance and ethics programs and can make the organization stronger and the workforce more engaged in compliance.

One of the key differences in healthcare as opposed to perhaps the energy or tech sector or another commercial enterprise, is that the government and the regulators would prefer not to exclude healthcare providers from the healthcare industry. This means even if a healthcare provider has a compliance issue, the government and regulators may be loathed to deliver an ultimate sanction and put a healthcare provider out of business. Access to quality healthcare providers is a continuing issue within the industry and particularly for government programs like Medicaid. One of the reasons is that not every healthcare provider is willing to participate in Medicaid programs and, particularly for vulnerable populations, there can be an inadequate number of healthcare providers available to treat those populations. This means from a public policy perspective, whether it is the federal government or state government departments of public health, they all want to have as many quality providers as possible so people and the patients have adequate access to those services.

This can sometimes run up against the tension of healthcare providers in those areas of medical services who have run into difficulties that could pose a threat to patients and the public or could pose a threat to the public financing by misusing or abusing the funds that are being paid. This means that the government or regulators must be comfortable that the problems an organization has have been remediated and will be addressed so that those issues will not arise going forward. If using an independent integrity monitor can help the government by meeting these two objectives of both quality providers and providing sufficient access for its citizens, it is a win for all involved.

Next up, using independent integrity monitoring in licensing and disciplinary proceeding.

For more information on how an independent monitor can help improve your healthcare entity's ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 9, 2018

In this episode I podcast favorite James Koukios returns to discuss some of the highlights from the Morriston and Foerster newsletter on Top Ten International Anti-Corruption Developments for April 2018. Some of the highlights include:

  • D&B Declination for FCPA violation-how did the company get such a great result?
  • IMF “Steps Up” Engagement on Governance and Corruption. On April 22, 2018, the IMF announced that its Executive Board had endorsed a new framework for “stepping up” engagement on governance and corruption in its member countries. What does this mean for companies?
  • Individual prosecutions continue related to PDVSA. What does this mean, together with the tightening sanctions against Venezuela for US companies still trying to do business in that country or stuck it out hoping for regime change.
  • Aruban Official and Florida-based Telecom Executive Plead Guilty in Connection with Bribery Scheme. Use these guilty pleas to discuss the bookends of corruption; bribe payor and bribe receiver. How does the DOJ look at this problem and what tools are available to prosecutors?
  • Areas of the globe in which companies currently doing business need to take a close look at their operations. I have suggested South African and Malaysia. Are there others the DOJ might be looking at?.
  • As an added feature we move to a current event, the news of a Subpoena issued to Glencore by the Justice Department, in part related to a FCPA investigation. We consider what delivery of a Subpoena means from the DOJ and company perspective.
Jul 6, 2018

As we begin the post-holiday portion of our 4thof July week, Jay Rosen and myself are back in the saddle again to take a look at some of the top compliance stories from the past week.

  1. Credit Suisse settles with DOJ and SEC for its illegal hiring of family members of Chinese government officials, in violation of the FCPA. See Justice Department NPA here. Dick Cassin reports ion the SEC settlement in the FCPA Blog. See SEC Administrative Order here.
  2. What is Homeland Security Investigations and how does it help in FCPA Investigations. Clara Hudson reports in Just Anti-Corruption.
  3. ZTE starts its come back by changing its senior management. Sam Rubenfeld reports in WSJ Risk and Compliance Journal.
  4. Jim Beam goes down harshly with a FCPA violation in India. Henry Cutter reports in the WSJ Risk & Compliance Journal. See SEC Adminstrative Orderhere.
  5. The former Prime Minister of Malaysia is arrested for corruption around the 1MDB scandal. Hannah Beech and Austin Razmy report in the New York Times.
  6. Matt Kelly explores two parts of compliance in a discussion of Michigan State and Larry Nassar. The first is escalation and tone at the top. The second is institutional repair through procedure and transparency. See his article in Radical Compliance.
  7. Should there be a difference reimbursement/remediation program in the Och-Ziff matter. Africo Resources says yes and makes their case to the DOJ. Kelly Swanson reports in GIR. (sub Req’d)
  8. Why should investigators prepare for Artificial Intelligence? Peter Humphreys explores in Global Investigation Review(sub req’d)
  9. Two great compliance events in Houston next week and both events are free. First the Greater Houston Business and Ethics Roundtable holds in members’ only summer workshop Thursday July 12. For information and registration, click here. Second Jonathan Marks will present to the Houston Compliance Roundtable on Friday July 13 at 8-9 AM. For more information, contact Tom Fox.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jul 5, 2018

Compliance into the Weeds is the only weekly podcast which takes a deep dive into a compliance related topic, literally going into the weeds to more fully explore a subject. In this episode, Matt Kelly and I take a deep dive back into the proposed changes to the SEC Whistleblower program in light of Digital Realty Trust and the new administration.

The major proposed changes include the following:

  1. More bounty payments for smaller settlements;
  2. A cap on the top end awards of $30 million, no matter how great the settlement;
  3. Requirement that for the purposes of Dodd-Frank Whistleblower anti-retaliation protection, any information must be submitted in writing; and
  4. A widening of the SEC’s discretion to award whistleblower claims based on public information using independent evaluation and analysis.

We unpack of all these points and consider the implications for corporate compliance programs.

For more reading: see Matt’s piece On SEC Whistleblower Reforms

Jul 2, 2018

In this episode I visit with Shawn Rogers, Lead Counsel, Compliance Training and Communications at General Motors. Rogers was brought in to beef up the company’s compliance training after the ignition switch scandal. He talks about his design, creation and implementation of a tailored and focused compliance training program. Some of the highlights include:

  • The guiding principles for GM compliance training: trust and respect.
  • The differences between risk-based training versus check-the-box training.
  • Demonstrating how a risk-based training program benefits GM.
  • The legacy challenges for GM in compliance training and how this new approach responded to these challenges.
  • The influencing factors for GM compliance training.
  • The Risk-Based Training Program Architecture at GM.
  • The GM Compliance Training Strategy.
  • An explanation of where compliance training fit into the overall GM compliance training culture.
  • How GM tailors its training for high-risk employees.
  • How GM demonstrates compliance training effectiveness.

For more interview with Shawn Rogers see the article in Compliance Week, click here.

Jun 29, 2018

As get ready for a holiday week, Jay Rosen and myself are back in the saddle again to take a look at some of the top compliance stories from the past week.

  1. What happens when you lose your ethical way and its splashed across the front page of the NYT? See article in the New York Timesby By Walt Bogdanich and Michael Forsythe on McKinsey and its ill in South Africa.  
  2. Walt Pavlow asks if business schools should stop teaching ethics and substitute the US Sentencing Guidelines. Check it out in Forbes.com.
  3. What is the real world role of a CCO? Kelly Swanson explores in Just Anti-Corruption(sub req’d)
  4. Why using independent monitors is forward thinking in the compliance realm. Bart Schwartz explore in the FCPA Blog.
  5. The SFO charges Unaoil for bribery and corruption. Dick Cassin reports in the FCPA Blog. Sam Rubenfeld reports in the WSJ Risk & Compliance Journal.
  6. Did the leopard change its spots or did something real change? Delaware supports an overhaul of benficial ownwership requirements. See article by Henry Cutter in the WSJ Risk & Compliance Journal.
  7. An AML sentencing bookend a FCPA sentencing. Tom explains why this is important in the FCPA Compliance and Ethics Blog.
  8. After the announcement of the new FCPA Corporate Enforcement Policy in November 2017, what should we call the new type of declination? Maddie McMahon explores in the Global Anti-Corruption Blog.
  9. SEC votes to limit whistleblower awards. Will it impact the SEC whistleblower program? Francine McKenna explores in MarketWatch.com.
  10. Tom’s new book The Complete Compliance Handbookremains a hot seller. It is available oncom. Purchase an autographed copy here. It is reviewed in the FCPA Blog, Radical Complianceand Corruption, Crime and Compliance.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Jun 28, 2018

Compliance into the Weeds is the only weekly podcast which takes a deep dive into a compliance related topic, literally going into the weeds to more fully explore a subject. In this episode, Matt Kelly and I take a deep dive back into the impact of the Trump Administration’s attack on friend and foe alike with tariffs, trade wars, embargoes and sanctions.  This is also our first live podcast from Matt’s stomping grounds in Cambridge, MA.

What does all this mean for the compliance practitioner? Obviously, your job just became a lot harder. The scrutiny both public and private will be much greater. You will need much greater visibility into what business your organization is into going forward.

For more reading: see Matt’s piece on “Corporate Ethics & Politics: It’s Gonna Get Worse” and “Trade War! Trade War! Man the Barricades!”,both on Radical Compliance. See Tom’s piece, “Condos, Corruption and Compliance” in Compliance Week. 

Jun 27, 2018

How does a company transfer data from the European Union (EU) to the US under the General Data Protection Regulation (GDPR) which went live on May 25, 2018? I recently had the opportunity to visit Jonathan Armstrong, partner at Cordery Compliance in London and an internationally renowned data privacy/data protection expert on this topic. Armstrong noted there have been some changes which may significantly impact this issue going forward. There are basically four ways to affect such a transfer. 

However, there is a method that many people may not realize is a data transfer as it involves reviewing data which sits on a server in the EU. This means that even if the data does not move out of the EU but you can access it from the US that counts as a data transfer as well. A fairly typical corporate example might be where your organization has a system for your employees that does that payroll and that payroll information is on a server in Belgium. Your Human Resources (HR) Department from the US can get into that server and extract data from it. This is a data transfer under GDPR. 

  1. Consent.The first method to safely and legally transfer data is through consent. While this may work more easily in a B2B context, it is much more challenging in the employment context. Under GDPR an employer cannot require consent as a condition of employment. Moreover, this is carried over after the creation of the employment relationship in that an employee cannot give a valid consent. The reason is the EU holds the employer has undue influence over the employee and therefore no consent can be freely given. 
  1. Standard Contractual Clauses or Model Clauses.Armstrong noted he expects to see new form clauses at some point from EU data regulators. However, he tempered this with caution that there is currently a court challenge at the European Court of Justice (ECJ), referred from the Irish Data Protection Commissioner. Once again, these standard contractual clauses in their current form are likely to face a number of legal challenges going forward, so they may well be less safe post-GDPR go live than there were before. 
  1. Privacy Shield.Readers will recall that Privacy Shield was the regime put in place after the legal actions, led by Max Schrems, invalidated Safe Harbor. Armstrong believes that while “Privacy Shield is not dead yet, it's certainly unwell.” One reason is that there are many Europeans who do not believe that the current US administration is respecting privacy as well as it might. Even this past week, US Secretary of Commerce Wilbur Ross, criticized GDPR in an op-ed piece in the Financial Timesarguing the law was unclear, no guidance has been provided by regulators, it favored privacy rights over security and would likely cause job losses in the US. 

Not that the Trump Administration is any friend of the EU (or data privacy for that matter) but if the European Commission is minded to retaliate, one easy way to do so would be to withdraw the Privacy Shield scheme. From the European legal perspective, Privacy Shield currently faces two faces challenges before the ECJ. These are likely to be heard in 12 to 18 months. Finally, the European Parliament and the several European data protection regulators are not fans of Privacy Shield and this has hampered progress since it was brought into force. Armstrong concluded by stating, “my gut feel would, would be the privacy shield will die. It is a question of when and not on privacy shield. Certainly, in a worse position now than it was on May 25th.” 

  1. Binding Corporate Rules.Armstrong believes this is the one area for data transfer which has benefited from GDPR go-live. Under this scenario, an organization can go to any one of the EU data regulators ask it to be a group of companies lead regulator. From this point, the companies would put in place that system that is somewhat akin to Privacy Shield; including a series of commitments from all the other the entities which make up this the corporate network. These commitments are to each other. From there the lead regulator then reviews and assess then approve the entire network’s data privacy/data protection commitments. Finally, the lead regulator goes to such other regulators in the EU, supporting these Binding Corporate Rules. It is more streamlined approach for dealing with the plethora of regulators in the EU. 

Armstrong emphasized this is not a rubber stamp process but one which takes time and concerted effort. He estimated that it is an 18 month or so process. However, under GDPR there was the creation of a European Data Protection Board (EDPB) and one of its function is to help the process of getting Binding Corporate Rules approved more quickly. 

Armstrong concluded by cautioning there is still much fluidity in the mechanisms for data transfer. There still may be many changes from both the regulatory perspective and the legal perspectives through court challenges. He concluded by stating “vigilance is the watch word here.”

Jun 25, 2018

In this episode, I visit with John Warren, Vice President and General Counsel at Association of Certified Fraud Examiners and Andi McNeal, Director of Research at ACFE. In this podcast we discuss:

  • What is the Report to the Nations?
  • How long has ACFE been releasing it?
  • Have the trends been consistent over the past 10 years?
  • Owners/execs account for small percentage of losses but have a median loss of $850K;
  • Corruption was the most common scheme in every global region;
  • Median losses are far greater when fraudsters collude;
  • Data monitoring/analysis and surprise audits were correlated with the largest reduction in fraud loss, what does that mean for detection and prevention?
  • Considerations from the Corruption Section in the Report;
  • What were the top red flags in corruption cases? Do these differ from other types of fraud?
  • What are the industries or business sectors with highest proportion of corruption cases?
  • One of the most significant set of findings seems to be the behavioral aspects of fraud. Do those same aspects appear in corruption cases? If so, can more traditional behavioral risk detection or prevention techniques be brought to the structural solutions used to fight corruption?

The ACFE report to the Nations is an excellent reference tool for all compliance practitioner to show where fraudsters explode weak points.  It also has important data around corruption and from this information you can make your compliance program more robust around these areas which can be exploited.

To download a copy of the Report to the Nations, click here.

Jun 23, 2018

Before we head to Boston for an event at AMI on Monday, Jay Rosen and myself are back in the saddle again to take a look at some of the top compliance stories from the past week.

  1. Inside the Fall of Mossack Fonseca, reviewed by Dick Cassin in the FCPA Blog.
  2. Where will your next crisis come from? Today’s news or 10 years ago? Sam Rubenfeld reports on the reputational hit companies which helped separate children from their parents at the border in the Wall Street Journal Risk & Compliance Journal. Ben DiPietro considers the trial in France of the fallout from a 10 year old corporate restructuring, also in the Risk & Compliance Journal.
  3. The OECD is looking at anti-corruption enforcement and finds it lacking in Germany and in trouble in Norway. Henry Cutter reports on Germanyand Sam Rubenfeld on Norway, both in the WSJ Risk and Compliance Journal.
  4. Brazil is a model for international enforcement, investigations and cooperation, believes Kees Thompson, writing in the Global Anti-Corruption Blog.
  5. How do you classify your third parties? Mike Volkov explains it in the Navex blog, Ethics and Compliance Matters. On his blog Corruption, Crime and ComplianceMike discusses how to build a business case for a third party risk management system.
  6. Auditors behaving badly. Tammy Whitehouse reports on a negative report from U.K. Financial Reporting Council in Compliance Week. (sub req’d)Francine McKenna, writing in MarketWatch reports on the continuing KPMG
  7. SEC Chief Jay Clayton talks corporate culture. Matt Kelly, writing in Radical Compliance, finds it lacking.
  8. How does Sherlock Holmes inform your compliance program? Tom explored in a 5-day series. Part I-Communication; Part II-Institutional Justice; Part III-Criminality; Part IV-Mentoring; and Part V-Imagination.
  9. Support your local book sellers! River Oaks Bookstore, 3270 Westheimer, in Houston is now stockingThe Complete Compliance Handbook. Tom will be on hand for a book signing on Thursday, June 28 from 5:30 to 7.
  10. Tom’s new book The Complete Compliance Handbookremains a hot seller. It is available oncom. Purchase an autographed copy here. It is reviewed in the FCPA Blog, Radical Complianceand Corruption, Crime and Compliance.
  11. Serving up some Breakfast and Compliance. Join Tom in Boston on June 25 at the offices of Affiliated Monitors to learn here about show the story of compliance is the story of innovation. For more information and registration, click here.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

Before we head to Boston for bagels, coffee and compliance at the offices of AMI, Jay Rosen and I review the week's top ethics and compliance stories on This Week in FCPA.

Jun 21, 2018

You will note the new title for this episode, Life With GDPR. When Jonathan Armstrong and I began this series in early 2018, we had intended to give listeners a grounding in the new law in the lead up to its go-live date of May 25. However, the response was so overwhelming and Jonathan and I had so much fun putting on the podcasts that we decided to make Countdown to GDPRa permanent part of the Compliance Podcast Network, albeit with a more appropriate name. So welcome to the re-monikered Life With GDPR, which I hope you will enjoy as much as you enjoyed its predecessor. Today Jonathan and I take up the issue of non-monetary penalties.

While most practitioners focused on the heavy fines and penalties available under the General Data Protection Regulation (GDPR) of up to 4% of total global revenues or other very large fines, there are other remedies that each EU and UK data regulator can levy or put into place that may require considerable corporate cost and effort. Moreover, these lessor penalties and sanctions can be the precursor to larger monetary fines and penalties. Armstrong emphasized that each EU country has its own regulator and they will have varying degrees of aggressiveness.

Armstrong pointed to three areas the regulators can order companies to engage in activities. First, it can order a GDPR audit to determine if it has previously assessed its data protection/data privacy issues correctly. Here he pointed to an example of a healthcare organization that was ordered to perform a Data Protection Impact Assessment (DPIA) and report back to the regulators within one month.

Next, Armstrong pointed to the joint areas of date controllers and data processors. Regulators can require a company Data Protection Officer (DPO) to comply with data requests, even Subject Access Requests (SARs). He referenced to a recent example from the UK involving Cambridge Analytica, which was ordered to comply with a US academic’s SAR. Further, a regulator can order a company to bring its data protection program in line with GDPR. Additionally, regulators can maintain investigations in the form of data protection audits and have the right to obtain access to any premises of the controller and the processor, including any data processing equipment by obtaining a warrant. This may prove to be a significant tool in the data protection regulators’ toolkit.

Regulators can also order companies to stop certain activities. Here Armstrong provided the example of a US based company with operations in Europe who is not GDPR compliant around its internal reporting structures. An EU regulator could order the company to suspend its hotline in Europe until there is compliance. Under such a scenario, the US Company would be out of compliance with US securities law and it may be at risk under best practices compliance programs under the Foreign Corrupt Practices Act (FCPA), Anti-Money Laundering (AML) regulations, export control regulations or even US anti-trust law.

Armstrong emphasized that it is not simply the regulators who have powers under GDPR, individuals do as well. SARs of course are well-known but there are other individual rights Armstrong emphasized. If an individual files some type of GDPR complaint with a statutory regulator, who does not take up the complaint within 30, days that individual can appeal against both the regulator to get the complaint moving forward. This means that individuals can file SAR actions against companies that do not respond in a timely manner to SARs. Moreover, such individuals can then band together in a class action lawsuit over such failures. There is also a mechanism for equitable reallocation of damages between parties. If a data processor has to pay damages properly attributable to a data controller, GDPR Article 82 provides a procedure for claiming these damages back. Finally, recall that any person who has suffered “material or non-material damage” due to an infringement of the new rules has a right to compensation from the data controller or processor concerned for the damage suffered and you begin to realize the powers that individuals hold under GDPR.

Interestingly, Armstrong believes that the number of regulatory and individual remedies will mandate that if companies have an incident, they should investigate and remediate quickly. From there, the entity should prepare their investigative results, remedies and internal sanctions they may have put in place on those employees involved. These steps will all go towards mitigating any proposed financial penalty the regulators may be considering. Basically, businesses need to have their ducks in a row, as it can lead to not only reduced costs for corporations, but also could well lead to greater compliance if tied to a root cause analysis.

Jun 20, 2018

Compliance into the Weeds is the only weekly podcast which takes a deep dive into a compliance related topic, literally going into the weeds to more fully explore a subject. In this episode, Matt Kelly and I take a deep dive back into the issue of the ZTE monitorship announced recently as a part of the settlement with the Department of Commerce on the death penalty sanctions levied on the company in April.  

That sanction was an export denial which barred American companies from selling components to ZTE and its subsidiary. American companies, such as the San Diego-based chipmaker Qualcomm supplied critical parts for ZTE’s its networking gear and smartphones. This sanction came on the heels of a $891 million fine and penalty the company agreed to in March 2017 for its first round of export control violations. The second sanction was for failing to live up to the terms of the DPA the company agreed to in 2017.

In the 2017, the company agreed to a monitor, who was appointed by the District Court which accepted the company’s guilty plea. Under the May 2018 supplemental sanction, ZTE agreed to pay an additional $1 billion in penalties, put $400 million in escrow, and accept a U.S.-appointed compliance department. According to the Department of Commerce Press Release, the new agreement requires ZTE "to retain a team of special compliance coordinators selected by and answerable to" the Commerce Department for ten years. This new compliance function will essentially serve as the Department of Commerce’s monitor at ZTE as the Press Release noted, "Their function will be to monitor on a real-time basis ZTE’s compliance with U.S. export control laws.”

Matt and I take a deep dive into the DOC resolution, the monitorship and how it might work and the use of a sanctions regime by the administration as a tool to brow beat other countries. We discuss in detail on this bizarro arrangement of U.S. regulators appointing an in-house compliance executive to act as a monitor to the Chinese telecom firm. The concept is intriguing, and the job could be the professional challenge of a lifetime — except for all those pesky details, including the ones this settlement still leaves unaddressed.

For more reading: see Matt’s piece on “FAQs on ZTE’s Compliance Settlement” and “Trade War! Trade War! Man the Barricades!”,both on Radical Compliance. See Tom’s piece, “The ZTE Department of Commerce Monitor: unchartered waters” in Compliance Week.  

Jun 18, 2018

In this episode, I visit with Kristy Grant-Hart, founder of Spark Compliance Consulting and author of now three books in the compliance arena. We discuss her most recent book “How to Have a Wildly Successful Career in Compliance", which will be released on Amazon.com on June 19. For those of you who have seen Kristy speak you know she is high energy and very passionate about compliance and the compliance profession. She channels that energy and passion into her latest book. In this podcast we discuss:

  • Why she wrote this book?
  • Why the winding career of a compliance professional so important?
  • Why it more important for women to “Ask for it?” around salary/comp/promotions?
  • Why moving up the corporate ladder more like climbing a jungle gym?
  • Why understanding the numbers and business plan so important to a compliance professional?
  • How does one raise their profile in the compliance profession?
  • Why is collaboration so important for a compliance professional and a corporate compliance function?

Kristy is the author of two prior books on compliance, How to Be a Wildly Effective Compliance Officerand Wildly Strategic Compliance Officer Workbook. Both are must reads for compliance professionals. Her latest entry gives solid tips and point-by-point steps on how to have a successful career in the compliance field. But it is more than simply Kristy’s thoughts as she interviewed compliance professionals from literally across the globe on how they have become wildly successful.

Yet there is one thing about the book that I think makes it most useful for every compliance practitioner out there. It is that the book works on multiple levels and for multiple stakeholders. Obviously, it is targeted and works for the compliance practitioner but it also works for a CCO who is thinking about working with senior management and a Board of Directors. Further it works on a compliance program level, with many of Kristy’s tips translating into compliance program best practices.

Finally Kristy tackles head on the issue of women succeeding in the compliance profession. She writes this chapter with clear-eyed focus; not ranting or raving but giving women the tools, they need to succeed in the compliance profession and in the greater corporate world. I found this chapter so powerful I bought a copy for my 21-year-old daughter to help prepare her for your professional career after she graduates from college.

To purchase a copy of How to Have a Wildly Successful Career in Complianceon Amazon.com, click here.

For more information on Kristy’s books, check out her site, Compliance Kristy by clicking here.

Finally for more information on Kristy’s consulting company, Spark Compliance Consulting, click here.

Jun 15, 2018

With both VW and ZTE having very bad weeks, Jay Rosen and myself are back in the saddle  again to take a look at some of the top compliance stories from the past week.

  1. Having a bad week-Part 1, Volkswagen. First the head of its Audi unit is announced to be under investigation (here). Then Germany fines the company €1 bn for the emissions-testing fraud (here). Finally German prosecutors rejct the myth of “rogue engineers” in the scandal, saying the company is responsible as a whole (here). All reported in the New York Times.
  2. Having a bad week-Part 2, ZTE. After having reached a settlement between ZTE and the Department of Commerce, Congress moves to block the settlement. Michael C. Bender,  Siobhan Hughes and  Kate O’Keeffe report on the political perspective in the Wall Street Journal. From the compliance angle, many questions abound. Gerry Zack, writing in the FCPA Blog, says don't call the persons reporting to the DOC mandated compliance officers as they are monitors. Matt Kelly offers up informative FAQs on the monitorship in Radical Compliance. Tom considers the uncharted waters of the settlement in Compliance Week(sub req’d)
  3. The court evisserates the DOJ’s argument against the AT&T purchase of Time Warner. Henry Cutter uses the merger go-ahead from Judge Leon to explore the compliance challenges in mega-mergers (and small ones too). In the WSJ Risk & Compliance Journal.
  4. Bill Steinmann says (yet again) that FCPA enforcement is not dead. It’s not that he’s tired of saying it, he just wishes the nay-sayers would unplug their ears and start to listen. On the FCPA Blog.
  5. Goldman Sachs made $600 peddling 1MDB bonds. The new Malaysian government wants some of that money back. Alexandra Stephenson and Hannah Beech report in the New York Times.
  6. CCO’s behaving badly. The Standard Chartered CCO has left the bank for inappropriate behavior. Sam Rubenfeld reports in the WSJ Risk & Compliance Journal.
  7. Looking to do business with Trump’s newest buddy North Korea? Dick Cassin says be careful, be very careful in the FCPA Blog.
  8. Anti-piling on is a two-way street, as it requires responsible actions by companies as well. Michael Griffiths reports in GIRon remarks by Justice Department FCPA Unit Chief Dan Kahn.
  9. Need some CLE or Compliance know-how? Join Tom’s Compliance Master Class, which next week Houston on June 21 & 22. Just a couple of seats left. Information and registration is available here. Learn about compliance from the guy who wrote the book on compliance.
  10. Support your local book sellers! River Oaks Bookstore, 3270 Westheimer, in Houston is now stockingThe Complete Compliance Handbook. Tom will be on hand for a book signing on Thursday, June 28 from 5:30 to 7.
  11. Tom’s new book The Complete Compliance Handbookremains a hot seller. It is available oncom. Purchase an autographed copy here. It is reviewed in the FCPA Blog, Radical Complianceand Corruption, Crime and Compliance.
  12. Serving up some Breakfast and Compliance. Join Tom in Boston on June 25 at the offices of Affiliated Monitors to learn here about show the story of compliance is the story of innovation. For more information and registration, click here.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit our sponsor Affiliated Monitors at www.affiliatedmonitors.com.

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