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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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Now displaying: 2016
Dec 29, 2016

In this episode Mike Volkov and myself take a deep dive into the Odebrecht/Braskem and Teva FCPA enforcement actions. We review the underlying facts, the conduct of the parties, the results obtained and what it all means for the compliance practitioner going forward.

Dec 23, 2016

Show Notes for Episode 33, week ending December 23, 2016-Holiday edition

  1. Odebrecht/Braskem FCPA enforcement action. Braskem InformationBraskem Plea AgreementOdebrecht InformationOdebrecht Plea AgreementSEC Civil Complaint.
  2. Goldman Sachs further ensnared in 1MDB scandal. Link to article in Wall Street Journal.
  3. Teva FCPA enforcement action. Teva InformationTeva Plea AgreementTeva DPA
  4. Pre-taliation enforcement heats up, on Radical Compliance.
  5. NFL Playoff update on Patriots, Cowboys and Texans.
Dec 21, 2016

In this episode SCCE CEO Roy Snell and I continue are exploration of issues of import to the compliance profession. We consider the penalty assessed by the NCAA on Notre Dame for it use of two ineligible football players and whether the punishment fit the crime; the forced transparency leading to hyper transparency for today's corporate scandals and the sanctions assessed against former Wells Fargo CEO John Stumpf; advise not send out stupid emails and consider how the safety industry evolved 20 years ago and what implications it might have for the compliance profession going forward. 

Dec 21, 2016

In this episode I visit with Juliet Lui as we discuss how to best handle small and medium investigations in an efficient and cost effective manner. We discuss how such matters often slip through the cracks as they are not perceived as high profile yet can cause significant problems if allowed to fester. We discuss methodology, costs and deliverables. Lui details two case studies to emphasize how important small and medium investigations can be as they often uncover larger and more critical problems and issues. 

Dec 15, 2016

In this episode SCCE CEO Roy Snell and I take a deep dive into corporate governance and compliance, the public skewering of former Wells Fargo CEO John Stumpf and ask if a CEO should be involved in the hiring of a CCO. 

Dec 14, 2016

In this episode Matt Kelly and I take deep dive into the United Airlines SEC enforcement action for violation of internal controls around its reinstitution of a route from Newark to South Carolina at the insistence of the then Chairman of the New York and New Jersey Port Authority David Sampson in exchange for a concession to expand its physical facilities at the Newark airport. We review the background facts, as set out in the SEC Cease and Desist Order and the Justice Department Non-prosecution. We take a look at the internal controls violation of the former UA CEO for violating the company's Code of Conduct, the finding of a lack of internal controls around its route reinstitution protocol and finally discuss the problem of senior management override of internal controls. 

For more information on this enforcement action, check out Matt's blog post on this matter, entitled, "This Weird United Airlines Case Just Happened and my blog post entitled, "The Chairman's Flight and the US Corrupt Practices Act". 

Dec 13, 2016

In this episode, I visit with Houston Chronicle business columnist Chris Tomlinson about his time working internationally for the Associated Press. He relates his first hand view of the invidiousness of corruption in African countries. He also talks about how a major FCPA corruption trial would be covered. He concludes with thoughts about the role of the Fourth Estate in the international fight against corruption. 

Dec 9, 2016

Show Notes for Episode 32, week ending December 9, 2016-the Fly the Not So Friendly Skies edition: 

  1. United Airlines SEC enforcement action for domestic; the Chairman’s Flight and the US Corrupt Practices Act, for a copy of the Justice Department NPA, click here and for a copy of the SEC Cease and Desist Order, click here.
  2. Monetary Authority of Singapore seeks to suspend former Goldman Sachs trader in 1MDB scandal. Link to Fox blog post on Compliance Week.
  3. FATF report that US weak on beneficial ownership issues, for a copy of the report, click here.
  4. Wal-Mart up to $820MM in pre-settlement FCPA settlement spend, on Radical Compliance.
  5. Release of eBook, Trump on Compliance.
  6. SEC Director of Enforcement, Andrew Ceresny announces he will leave the SEC. See NYT article, here.
  7. GibsonDunn briefing on The Road Ahead: DOJ and Federal Enforcement in the Trump Administration predicts a Southern California centered FCPA matter will be concluded by year end.
  8. 10th Annual SEC & DOJ HOT TOPICS 2017 -- Current Developments Materially Affecting Corporations, Financial Institutions, Individuals organized by Sandpiper Partners LLP and program developed by PwC, notes GibsonDunn partner Deb Yang listed as potential SEC Commissioner.
  9. Jay Rosen weekend report update.
Dec 8, 2016

We are back to our more rounded format for this episode on a variety of topics including anti-corruption enforcement across the globe, the new French anti-corruption law, Sapin II, the Agricultural Bank of China compliance enforcement action by the state of New York Department of Financial Services; how corruption influences as much as it pays money and individual accountability for corporate malfeasance is not a Democratic or GOP issue but a law enforcement issue. We end with a well-deserved one minute rant from the panel about what is in the front of their mind.

Mike Volkov discusses the internationalization of anti-corruption enforcement. He refers to the comments from the ACI FCPA conference, by Kara Brockmeyer and Dan Kahn about the increasing international enforcement efforts against corruption. This extends far beyond cooperation but also to enforcement. Recent examples are VimpelCom and Embraer where other countries received proceeds from fines and penalties. How does a company begin to deal with this type of complexity? Who does it disclose to? Who does it pay? When will the US give credit for payments made to other countries and when does it not? Finally this year saw of the third joint DOJ/SEC week long training for foreign prosecutors put on in DC. How do such events assist enforcement efforts, particularly around cooperation and mutual assistance?

For Tom Fox’s blog post, “Anti-Corruption Enforcement Has Gone International?” click here

  • Matt Kelly leads a discussion dive into the AgBank enforcement/sanction action. He explains what does it all means and then pivots into a discussion of where he might see state regulators such as the state of New York Department of Financial Services or state banking regulators becoming more aggressive if the Trump administration pulls back? He discusses how these issues may have relevance for areas of compliance other than bribery and corruption and if so how. Finally, he ends with a reverse states’ rights discussion of Democratically aligned states fighting federal roll back of rights and privileges through litigation.

For Kelly’s posts, see post on the enforcement action involving the Agriculture Bank of China, click here

  • Jonathan Armstrong leads a discussion on the new French anti-corruption law, Sapin II. He discusses the genesis of the law and why prior French efforts at anti-corruption law and enforcement was so harshly criticized by the OECD. He articulates how Sapin II differs from the UKBA, FCPA, the Brazilian Clean Companies Act and other anti-corruption laws across the globe. He talks about where he envisions French enforcement efforts going and the whistleblower protections of the law. Finally he ends with the key piece(s) of advice for clients regarding this law Cordery is suggesting around this law.

For Cordery’s piece on the new law click here.

Jay Rosen takes us through a Paul Krugman NYT post on some of the invidiousness of corruption, focusing on the corrupting nature of compliance around undue influence. Rosen explains incentives more than anything else and how such incentives skew the marketplace. We consider whether Trump’s discussions with the Carrier Corp over jobs was unduly influenced recalling President Kennedy’s ‘jawboning’ of the US steel industry in the 1960s. He also discusses the remarks of Sally Yates at ACI national FCPA conference about individual accountability and how this is not a GOP or Democratic issue but a criminal enforcement issue. For a link Krugman post, click here. For a copy of the text of Yates remarks, click here.

For a copy of Jay blog post entitled, “The DOJ and SEC Share Patriots Mantra—Next Prosecutor Up” click here.

Rants this week include the new UK surveillance law, the SEC domestic corruption enforcement action involving United Airlines for the Chairman’s Flight and the Chicken Littles of the compliance world claiming the sky is falling.

Nov 29, 2016

Show Notes

  1. Introduction
    1. What is the FAR
    2. What’s the differences with DFARs
    3. What types of companies should be concerned
    4. What are some examples of covered with these regs (eg. Ozone depleting substances, child labor, sanctions/debarment)
  2. Reporting requirements
  3. What sort of resources are available to help demonstrate compliance

  What is the Federal Acquisition Regulation (FAR)

  • The purpose of the FAR is to provide uniform policies and procedures for acquisition of goods supplied to the US federal government. Among its guiding principles is to have an acquisition system that satisfies customer's needs in terms of cost, quality, and timeliness; minimize administrative operating costs; conduct business with integrity, fairness, and openness; and fulfill other public policy objectives
  • At over 1,800 pages in its entirety, is a substantial and complex set of rules governing the procurement of all goods and services required by the U.S. Government
  • When a federal government agency issues a contract, it will specify the applicable FAR provisions, which may be numerous. In order to be awarded a contract, a company must either comply with the provisions, demonstrate that it will be able to comply with them once awarded, or claim an exemption from them (eg. Small business exemption)
  • All government issued contracts include any number of the FAR and/or DFARS clauses either in full text or by reference requiring the company issued the contract to demonstrate compliance to the requirements
  • Failure to comply with the requirements of FAR and DFARS may result in loss of contract or monetary fines

 What’s the differences with DFARs?

  • Updated in July of this year the DFARS is one of the best-known examples of an agency supplement to the FAR addressing further reporting requirements put forth by the Department of Defense
  • This supplement covers contracts with the office of the secretary of defense, branches of the military, and other defense agencies
  • In order to be in the running for one of these highly lucrative defense contracts, companies need to stay on top of the latest changes to DFARS and ensure their contracts, systems and processes reflect these requirements

 What types of companies should be concerned?

  • Companies that conduct their business with agencies of the US govt including defense contractors
  • Additionally those companies selling to organizations which conduct business with agencies of the US govt. will likely be asked to supply certain documentation to support their customer’s ability to demonstrate compliance
  • Winning a federal or defense contract means complying with laws and regulations unique to those doing business with the government. Many new contractors as well as their suppliers, are often unprepared for the rules and regulations they must follow and demonstrate, which can lead to costly errors and potential legal problems

 Why should they be concerned? 

  • Depending on the type of end product provided to government agencies, different types of concerns or risk becomes a focus in such situations

Reporting Requirements

  • In many cases sufficient screening, policy reviews and certification collection and validation will allow reporting companies to demonstrate compliance. But the issue isn’t necessarily what you have to collect to demonstrate compliance to meet FAR requirements (or report to customers which are obligated to) it’s how you do it.  Having a platform which can automate the data collection process as well as act as a repository is where most struggle…
  • What sort of resources are available to help me demonstrate compliance with these regs
    • We’ve created workflows to meet 48 of the specific FARs/DFARS supplier reviews and data collection processes
Nov 21, 2016

This episode is dedicated exclusively to where FCPA enforcement, SEC enforcement, the compliance profession and compliance programs may be headed under the Trump administration, with a dash of anti-trust enforcement and EU Privacy Shield.

  • Mike Volkov about where FCPA enforcement may be headed. We explore how FCPA cases are largely self-funded through company internal investigations which are turned over to the Justice Department. Volkov discusses funding and resources for the Department’s FCPA unit. He also touches on potential (or the lack thereof) of anti-trust enforcement going forward.

For Volkov’s post, “A New Administration: A New FCPA Enforcement Regime?” click here.

  • Matt Kelly leads a discussion on how the new administration may view the SEC going forward. He considers the announced resignation of SEC Chairman Mary Jo White and the appointment (and dismissal) of Kevin O’Connor from Trump’s transition team. Matt explains how Trump’s attacks on Dodd-Frank focus on easing rules for capital formation not on the whistleblower provisions or other sections more applicable to the compliance profession.

For Kelly’s posts, see the following:

  1. Five Post-Election Points for CCOs to Ponder;
  2. It’s Starting: Disclosure of ‘Trump Risk’;
  3. Compliance in the Trump Era, Part I: The SEC;
  4. A CCO Voice Emerges in Trump World; and
  5. Well That Didn’t Last Long
  • Jonathan Armstrong leads a discussion of the view from across the pond on where anti-corruption compliance enforcement may be headed after the election. He considers what the effects might be on the UK Serious Fraud Office (SFO)? He also considers what the effect of the Trump election might mean for EU and UK privacy advocates, privacy protections and privacy legislation going forward. He also discusses issues surrounding Privacy Shield. Privacy Shield faces a number of challenges from regulators, courts and possibly from the European Parliament.  A new Trump administration is likely to make Privacy Shield’s future even more uncertain.  Jonathan’s thoughts on Privacy Shield are here - http://www.corderycompliance.com/privacy-shield-faqs/

For Armstrong’s blog post, “What does the election of President Trump mean for compliance?” click here.

  • Jay Rosen takes us through how all of this may well be much ado about nothing. He points out that the compliance profession will continue to thrive as it becomes more as a part of business processes. From his role as ‘Mr. Translations’ he explains that companies have been moving compliance into the fabric of organizations and that by doing so, companies become better run, more efficient and more profitable.

For Rosen’s blog post (and great riff off of The Clash) “Should I Stay or Should I Go?”, click here.

  • For my blogs posts on these topics see the following:
  1. FCPA Enforcement Going Forward in the Trump Administration;
  2. Compliance Isn’t Going Away (and neither should you), Part I;
  3. Compliance Isn’t Going Away (and neither should you), Part II;
  4. Compliance Isn’t Going Away (and neither should you), Part III; and
  5. Why FCPA Compliance Makes America Great.

The members of the Everything Compliance panel include:

  • Jay Rosen (Mr. Translations) – Jay is Vice President of Legal & Corporate Language Solutions at United Language Group. Rosen can be reached at rosen@ulgroup.com.
  • Mike Volkov – One of the top FCPA commentators and practitioners around and is the Chief Executive Officer (CEO) and owner of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.
  • Matt Kelly – Founder and CEO of Radical Compliance, is the former Editor of the noted Compliance Week Kelly can be reached at mkelly@radicalcompliance.com
  • Jonathan Armstrong – Rounding out is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com.

For additional reading check out some of the following posts:

  1. Over at the Global Anti-Corruption Blog, Matt Stephenson talks about his nightmare version of a Trump administration for the global fight against anti-corruption.
  2. NYT Times DealB%K- on what DOJ and SEC enforcement may look like going forward.
  3. Sam Rubenfeld at the WSJ Corruptions Currents online site,a collection of some thoughts on what a Trump administration may mean for compliance.
  4. SCCE CEO Roy Snell tells us how he has seen it all before and advises everyone to wait a year and see what happens.
  5. Finally, in an uncharacteristically restrained post, the FCPA Professor advises everyone to take a deep breath, when it comes to FCPA enforcement under a Trump administration.
  6. Mike Scher advises President-Elect Trump to consider compliance officers.
Nov 10, 2016

Show Notes for Episode 1

At the SCCE 2016 Compliance and Ethics Institute, I sat down with four of the top compliance commentators in the field for my first roundtable-style podcast. It was so successful that I persuaded the gang to come back together every couple of weeks for a formal podcast, which is entitled Everything Compliance. The premier episode is available for your listening pleasure today. I will post a new episode every two weeks.

I host these four well-known compliance practitioners and commentators:

  • Jay Rosen (Mr. Translations) - Jay is Vice President of Legal & Corporate Language Solutions at United Language Group. Rosen can be reached at rosen@ulgroup.com.
  • Mike Volkov - One of the top FCPA commentators and practitioners around and is the Chief Executive Officer (CEO) and owner of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.
  • Matt Kelly - Founder and CEO of Radical Compliance, is the former Editor of the noted Compliance Week Kelly can be reached at mkelly@radicalcompliance.com
  • Jonathan Armstrong - Rounding out is our UK colleague, who is an experienced lawyer with Cordery Compliance Limited in London. Armstrong can be reached at armstrong@corderycompliance.com.

The format is a roundtable discussion where I throw out a question to one commentator to lead the discussion. From that starting point we will all join in. I also include an “On My Mind” segment where each participant discusses what is on the forefront of their mind. This podcast is longer than my others, coming in at around 60 minutes, which allows us to explore the week’s issues in depth.

In the inaugural episode we discuss the following subjects:

  1. Mike Volkov leads a discussion of the unintended consequences of the Yates Memo/Pilot Program for internal investigations. We explore the issue of “de-confliction” where the government asks a company to halt its own internal investigation for the government to be the first to interview witnesses. We explore de-confliction in the context of a requirement of cooperation to gain the benefits of the pilot program and how such a request from the Department of Justice (DOJ) could lead companies to be unable to disclose to other agencies or to shareholders and keep a Board in the dark about the alleged wrongdoing. What does this mean for the company and the internal investigator?

For Volkov’s post on conflicts of interest (COI) in internal investigations after the Yates Memo, click here.

  1. Matt Kelly leads a discussion on compliance and corporate governance. We explore the issue of compliance being involved in issues around pricing and sales in companies like Valeant and Wells Fargo. We discuss the role of compliance in areas outside of strict legal compliance but may move towards reputational risk, going into such areas as the new revenue recognition standards and executive compensation.

For Kelly’s blog post on the intersection of CEO pay and Chief Compliance Officers (CCOs), click here.

  1. Jonathan Armstrong leads a discussion of funding and the UK Serious Fraud Office (SFO), in the context of the recent announcement that the SFO has received additional or supplemental funding to investigate Unaoil. Why does the SFO need supplemental funding and how does it obtain it? What does all of this mean for the continued existence of the SFO in light of a former critic now being PM? Finally, Armstrong ties all of this into Brexit, his recent interview of Max Schrems and issues surrounding Privacy Shield.

For Armstrong’s interview with Max Schrems, click here and Cordery’s FAQs on Privacy Shield, click here.

  1. Jay Rosen takes us through the compliance conference scene. For those of you who are avid attenders of the various conferences, he discusses some of the key differences in the types observed, such as the nuts and bolts types (SCCE) and others which focus more on commentary (FCPA Blog NYC Conference). He discusses the relative strengths of each and how a compliance professional should think about selecting one or more to attend. He ends with his thoughts on why compliance certification is a plus (or minus).

For Rosen’s blog post Designing Your 2017 Ethics, Compliance & FCPA Conference Schedule, click here.

This new podcast Everything Compliance joins the four other podcasts I have on different aspects of compliance. The original FCPA Compliance and Ethics Report focuses on the nuts and bolts of compliance. Unfair and Unbalanced - is a podcast I do with SCCE CEO Roy Snell. In it we focus on wide ranging issues for the compliance profession. Compliance into the Weeds - is a podcast I do with Matt Kelly where we take a deep dive into the weeds of a compliance issue, typically technology, internal controls or GRC. We both indulge our inner geekiness in this podcast. Jay Rosen and I wrap up each week in FCPA, compliance and ethics with This Week in FCPA. All of these podcasts are available to you on my site, FCPAcompliancereport.comand are available on iTunes under the same name.

Oct 2, 2016

In this episode, I sit down with 4 top compliance commentators to discuss the SCCE 2016 Compliance and Ethics Institute conference. The panelists include Jay Rosen, Jonathan Armstrong, Mike Volkov and Matt Kelly. We discuss our presentations and observations on the  attendees.

Sep 10, 2016

In this episode I welcome back Red Flag Group CEO Scott Lane. We discuss the evolution of regulator thinking around what constitutes a best practices compliance program. 

Sep 10, 2016

In this episode, I take a deep dive into the Key Energy FCPA enforcement action.

Sep 10, 2016

In this episode, Red Flag Group CEO Scott Lane and myself discuss the evolution of regulators when evaluating compliance programs for effectiveness.

Sep 10, 2016

In this episode I review Hallmark 10-Mergers and Acquisitions: Pre-Acquisition Due Diligence and Post-Acquisition Integration under the FCPA.

To read more, check out my blog post series on Hallmark 10.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicking here.

Sep 10, 2016

In this episode I review Hallmark 9 - Continuous Improvement: Periodic Testing and Review. This podcast series is produced in a 10 article series.

To read more, check out my blog post series on Hallmark 9.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicking here.

 

Sep 9, 2016

In this episode I review Hallmark 8-onfidential reporting and investigations. This podcast series is produced in conjunction with a 10 article series.

To read more, check out my blog post series on Hallmark 8.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicking here.

Sep 9, 2016

In this episode I review Hallmark 7-third parties. This podcast series is produced in conjunction with a 10 article series. 

To read more, check out my blog post series on Hallmark 7.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicking here.

Sep 9, 2016

In this episode I review Hallmark 6-incenitives and dicipline. This podcast series is produced in conjunction with a 10 article series.

To read more, check out my blog post series on Hallmark 6.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicking here.

Sep 9, 2016

In this episode I review Hallmark 5 --communications and training. This podcast series is produced in conjunction with a 10 article series.

To read more, check out my blog post series on Hallmark 5.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicking here.

Sep 9, 2016

In this 10-episode podcast series I take a look at all ten hallmarks of an effective compliance program as set out in the FCPA Guidance. In this episode I review Hallmark 4-risk assessments.

To read more, check out my blog post series on Hallmark 4.

For more information on this Hallmark, check out my book Doing Compliance: Design, Create and Implement an Effective Anti-Corruption Compliance Program, which is available through Compliance Week by clicki

Sep 9, 2016

In this 10-episode podcast series I take a look at all ten hallmarks of an effective compliance program as set out in the FCPA Guidance. In this episode I review Hallmark 3 - Oversight, Autonomy and Resources. This podcast series is produced in conjunction with a more comprehensive 10 article blog post series at the FCPA Compliance Report. To review Hallmark 3, click here.

Sep 9, 2016

In this 10-episode podcast series I take a look at all ten hallmarks of an effective compliance program as set out in the FCPA Guidance. In this episode I review Hallmark 2-Code of Conduct and Compliance Policies and Procedures.To read more, check out my blog post series on Hallmark 2.

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