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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: Category: compliance commentary
Aug 24, 2018

Jay has returned from an Alaskan Disney cruise with the family. As OSU suspends its head coach and added a new phrase to our compliance and ethics lexicon significant memory issues; Tom and Jay are back with a look at some of the week’s top compliance and ethics stories.

  1. OSU head coach Urban Meyer suspended for three games by the OSU Board. The Board stated in part, “We also learned during the investigation that Coach Meyer has sometimes had significant memory issues in other situations where he had prior extensive knowledge of events. He has also periodically taken medicine that can negatively impair his memory, concentration, and focus." See articles in Sports Illustrated here, here and here. In ESPN here and here. On The Ringer here.
  2. Corruption and PdVSA: another one bites the dust as former Swiss banker pleads guilty to money-laundering. Harry Cassin reports in the FCPA Blog. Sam Rubenfeld weighs in on the WSJ Risk and Compliance Journal.
  3. Should sports officials have a Code of Conduct? David Dodge says aye, writing in the SCCE Blog.
  4. Mike Volkov takes a look at CIFUS and what it means for compliance. Part 1 on the increasing risk in cross border M&A and Part 2 on CIFUS expanding authority.
  5. Former head of Brazilian soccer is sentenced to 4 years in jail for role in FIFA bribery scandal. Sam Rubenfeld rerports in the WSJ Risk and Compliance Journal.
  6. The paper chase: no it’s the paper trail. Francine McKenna considers the Cohen guilty plea from the paper trail perspective in MarketWatch.
  7. How did the tipping point in personal misconduct actually tip? Matt Kelly explores in the Navex blog Ethics and Compliance Matters.
  8. Would a no-deal Brexit be a disaster for compliance? Paul Hodgson reports in Compliance Week. (sub req’d)
  9. How did the CCO move from Hall Monitor to Strategic Partner? Maurice Gilbert Gan Integrity’s Valarie Charles on CCI’s, Connected
  10. Tom considers compliance and the movies. Matt Kelly considers compliance on television. Tom says Film Noir informs better compliance, with an assist from Ethisphere on the FCPA Compliance and Ethics Blog. Matt lists his favorite TV shows featuring compliance, on Radical Compliance.
  11. Tom and Jay review their Top 5 film noir
  12. On this week’s featured podcast series, I interviewed Vin DiCianni and Eric Feldman on ethical culture. Check out these podcasts: Part 1-What is an ethical Culture? Part 2-What factors influence culture?;Part 3-The role of a CCO in an ethical culture; Part 4-How does a company assess its culture? And Part 5-Ethical Culture as part of an E&C program assessment.

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.

Aug 18, 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 very deep dive the implications from President Trump’s tweet on Friday, August 17th about quarterly financial reporting by public companies.

Some of the highlights from this podcast are:

  1. What was the reason behind the tweet?
  2. Is this simply an attempt to require less transparency in financial reporting?
  3. Would a longer financial reporting cycle allow companies to plan to the longer term?
  4. Would this negatively impact short-sellers?

We unpack of all these points and consider the SEC’s response going forward.

For more reading: see Wall Street Journal Article, “The End of Quarterly Reporting? Not Much to Cheer About”.

See NYT Dealbook article, “Trump Asks S.E.C. to Study Quarterly Earnings Requirements for Public Firms”.

Aug 17, 2018

Jay is on an Alaskan Disney cruise with the family. Through the prism of Trump’s attacks on the US free press and their robust response, Tom takes a solo look at some of the top compliance stories from the past week. Jay returns next week.

  1. What is the role of a free press in the fight against bribery and corruption? I explore in an article for Compliance Week (Sub req’d)
  2. In his final column at the Wall Street Journal, Ben DiPietro, writes about how social activism prioritizes push for integrity, inclusion. In the WSJ Risk and Compliance Journal.
  3. Where is the Tesla board of directors? The SEC has issued a subpoena to them. Tom discusses in the FCPA Compliance Blog. Emily Glazer reports in the WSJ. More on the infamous ‘funding secured’ tweet on Compliance Week. (Sub req’d)
  4. Why is it stupid to become to the US to (1) demand and (2) accept a bribe? Sam Rubenfeld expains in the WSJ Risk and Compliance Journal.
  5. Is the UK pushing back on US jurisdictional outreach? Evan Norris and Alma M. Mozetic pose this question in NYU’s Compliance and Enforcement blog.
  6. Valerie Charles says to consider the new FCPA Corporate Enforcement Policy from the compliance program perspective. In this month’s SCCE Magazine.
  7. Would a no-deal Brexit be a disaster for compliance? Paul Hodgson reports in Compliance Week. (sub req’d)
  8. Maurice Gilbert interviews Moore & Van Allen’s Valecia McDowell on compliance, leadership and promotion to the firm’s management committee. On CCI’s, Connected.
  9. The scandal at Maryland around the death of Jordan McNair deepens. The Trainer resigns, the University accepts responsibility and his parents call for the firing of the head coach. See coverage in Sports Illustratedand ESPN.
  10. The number of podcasts on the Compliance Podcasting Network has now reached the 1000 podcast milestone next week. To celebrate, running each week in August I am running a week-long special series as a tribute. This week it has been a series on the the future of audit, compliance and analytics. Next week it will be a series on ethical culture, what it means, how to measure and assess it and how to drive it. You can download the entire series next Monday at noon, on iTunes. The series will post daily at 10 AM on the Compliance Podcast Network.
Aug 16, 2018

To celebrate the Month of 1000 podcasts I am running for each of my podcasts this month, in this episode, the Everything Compliance gang focuses on the past five years; giving a retrospective of where we were, where we are and where we are going from their own perspectives. After the commentary we follow with rants and shout outs.

  1. Matt Kelly considers how did the 2013 Internal Controls Framework and the 2016 ERM Framework change things (or not)? He notes the two Frameworks provided widely distributed information to consider compliance in a disciplined way. Matt rants on Elon Musk. 
  1. Mike Volkov explores FCPA enforcement over the past 5 years. He lists the top 3 developments: (1) the long road to the FCPA Corporate Enforcement Policy; (2) The Yates Memo and individual prosecutions and (3) The global framework, built by the DOJ and SEC for anti-corruption investigation and enforcement. Mike rants on disgraced Representative Chris Collins.
  1. Jonathan Armstrong focuses on the evolution of data privacy. Numerous actors, including legislatures, regulators, individuals and pressure groups have all influenced EU/UK policy in this area. Further as US companies have become larger and larger, EU/UK Fair Trade/anti-trust and privacy laws will be used to greater effect on these entities. Armstrong shouts out to compliance when walking one’s bovine in Norwich City.
  1. Jay Rosen considers changes in compliance from the vendor perspective. He notes that many vendors brought a business process approach to not only how law firms and investigative firms worked but also how companies approached compliance programs. Jay rants on the NFL owners attempting to stop players from exercising free speech.
  1. Tom throws in a shout out for retiring Wall Street Journal reporter Ben DiPietro, who retires from the WSJ Risk and Compliance Journal on August 14.

The members of the Everything Compliance panelist are:

  • Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.com
  • Mike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.
  • Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.com
  • Jonathan Armstrong– Rounding out the panel is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com

The host and producer (and sometime panelist) of Everything Compliance is Tom Fox the Compliance Evangelist.

Aug 13, 2018

Over the next five podcasts, Matt Kelly and I will be exploring the future of internal audit, compliance and analytics. In Part I, we introduce the topic, explaining why internal audit (IA) is in the midst of a profound transformation, how this transformation will enable to move past its traditional detect function into a more proactive prevent role and how all of these transformations will lead to a more robust, operationalized risk management process.

Kelly believes IA is in midst of profound transformation. He explained IA itself is getting better and better technology. It has much more data analytics capability, so they can do a lot more with the data and do it faster but, at the same time, all the other departments in an organization, whether it's marketing, legal, compliance or operations, are receiving that same advance in technology too. This means other departments that IA is supposed to keep an eye on is also advancing with their technology too. Subsequently, their ability to throw off new data that can be analyzed is increasing exponentially at the same time. Kelly termed this as the “datafication” of the business process.

This is coupled with Boards of Directors wanting more bang for their buck out of the IA budget. This translates into the questions of how does IA add strategic value? The answer is a bit of a delicate thing because as IA works for the Board of Directors, it is supposed to be an independent and objective reviewer of business processes and of risks to the business. One of its functions is to recommend ways to reduce risks to acceptable levels. However, with this datafication it becomes much easier for IA to become much more of an analysis function to do more risk monitoring.  

The tech revolution is creating more ability to move beyond traditional audit duties of Sarbanes-Oxley (SOX) compliance, such as the confines of just reviewing financial statements and specific processes at fixed increments every few years. Does this mean that IA can move from a detect function to a more proactive prescriptive function? Kelly believes, “The question is to what degree should it, because there are always going to be these questions about how Internal Audit functions maintain their independence.”

Interestingly, Kelly believes that while the Boards of Directors are directly driving this change, the ultimate pressure is coming from a wide variety of players, including shareholders, regulators, consumers and other stakeholders. All these groups want to see the Board do a better job of managing strategic risk and not be caught with its collective jaw hanging off the floor when a scandal hits an organization. This pressure on Boards of Directors is driving them to ask for more and somewhat different approaches by IA. Kelly believes IA is being pushed beyond its traditional boundaries to “help Boards fulfill a new mission” to help more in the overall risk management process.

This process is also helped by the maturation of the IA function in its control design and testing requirements deriving from SOX. Technology has helped it move away from simple spreadsheets to more sophisticated reporting tools. Now IA has the ability to better interpret the information coming out from these controls. This will allow a greater operationalization of risk throughout an organization. IA can work with business process owners to write algorithms to allow greater self-monitoring of risks at the business or functional unit levels. They can then work to oversee the entire process to make sure the business processes stay within acceptable or defined risk parameters and report back to the Board of Directors. 

In Part II we consider the three steps of evolution that IA must go through to move to a more robust role in the overall risk management process.

Aug 6, 2018

What is the purpose of rehabilitation in a best practices compliance program? In this episode, I use the recent trade by the Houston Astros for closer Roberto Osuna last week as an introduction into several areas around compliance, discipline, punishment and zero tolerance. Osuna had been charged with violating the Major League Baseball (MLB) policy on domestic abuse. This weekend Osuna came off a 75-game suspension. It involved an incident for assault, for which Osuna pleaded not guilty to in a criminal case in Ontario. As part of this discussion, I consider several questions.

  • What is Zero Tolerance? Does it apply at all times or is it applied only situationally?
  • What is Due Diligence and how does an organization know if it has performed a sufficient level of DD?
  • What effect does or should any of this have on employee morale?
  • What is the purpose of rehabilitation?
  • What is the purpose of discipline in an organization?
  • What is deterrence?

For more reading see my blog post Due Diligence, Zero Tolerance and Compliance.

Aug 2, 2018

As we begin the dog days of summer and the long spell between July 4thand Labor Day, the Everything Compliance gang returns to its four focused topics. After the commentary we follow with rants.

  1. Matt Kelly considers Trump’s move to politicize the selection process for administrative law judges what this might mean for agency enforcement going forward? 
  1. Tom Fox explores three FCPA settlements incorporating the new FCPA Corporate Enforcement Policy and anti-piling on policy. (D&B, Panasonic and Credit Suisse) He considers them in light of some of the following questions: Do these matters increasing the incentive for companies to self-disclose? Will these and similar resolutions increase compliance or will it go the other way and cause companies to take compliance less seriously?
  1. Jonathan Armstrong discusses GDPR at six weeks post go-live. Where are we? What is the difference between public pronouncements by regulators and private actions by EU individuals? Where are we going?
  1. Jay Rosen considers the pro-active uses of monitoring in areas outside anti-corruption compliance. Here I am thinking about uses to satisfy anti-trust agreements with the FTC/DOJ and hospital conversions.

The members of the Everything Compliance panelist are:

  • Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.com
  • Mike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.
  • Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.com
  • Jonathan Armstrong– Rounding out the panel is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com

The host and producer (and sometime panelist) of Everything Compliance is Tom Fox the Compliance Evangelist.

Jul 25, 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 into the imbroglio Salesforce found itself in when it came out the company did work for ICE.

We use this dialogue as a starting point to discuss some of the following:

  1. What is the Trump Risk and how can companies being to manage it?
  2. If a company makes one miss-step does it make another when it tries to engage in ethical offsetting?
  3. Is your organization prepared to stand up for its own culture for ethics in the face of racism shown by the Administration?
  4. How do different stakeholders view you company’s ethical responsibility?

We unpack of all these points and consider the risk management strategies going forward.

For more reading: see Matt’s piece Salesforce Runs Into Trump Risk

Jul 19, 2018

This week the gang returns to its four focused topics. After the commentary we follow with rants.

  1. Matt Kelly is now convinced that the Trump Risk is a real thing. How can compliance professionals help companies in the age where reputational issues can arise literally with one tweet by the President or one administration policy which goes south? 
  1. Tom Fox explores the key themes in the SocGen/Legg Mason FCPA enforcement actions. 
  1. Jonathan Marks joins us a special guest and takes a look at how the US Supreme Court decision in Digital Realty Trust v. Somers severely damaged internal whistleblower/hotline systems as it removed retaliation protection from employees who go internally first and not to the SEC. How can companies win back employee’s trust on this issue?
  1. Jay Rosen considers that both the head of the SEC and No. 2 at DOJ have recently given speeches talking about corporate culture. With this new emphasis by regulators, what should compliance be doing in response?

The members of the Everything Compliance panelist are:

  • Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.com
  • Mike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.
  • Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.com
  • Jonathan Armstrong– Rounding out the panel is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com

On this episode, we are joined as a special guest panelist, Jonathan Mark, a partner at Marcum LLP.

The host and producer (and sometime panelist) of Everything Compliance is Tom Fox the Compliance Evangelist.

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.
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 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 14, 2018

Everything Compliance is the only roundtable podcast in compliance, with four of the top compliance practitioners around. This week the gang returns to its four focused topics on its Four of a Kind edition. After the commentary we follow with rants.

  1. Matt Kelly considers the new management strategy of reducing middle management in corporations. Where does compliance fit into this new structure? Matt rants on DOJ advisory opinions for Foreign Agent Registration Act (FARA) issues. 
  1. Mike Volkov explores the upcoming compliance reckoning. What is it and how should compliance professionals prepare? Mike rants on the cynical and ridiculous pardons granted by President Trump. 
  1. Jonathan Armstrong reviews the new UK Data Privacy-Data Protection Law. Jonathan rants on lack of engagement by the British public in the electoral process and governance debate.
  1. Jay Rosen considers the importance of corporate culture. How does one survey, understand and then improve corporate culture? How can you demonstrate any of these steps to a regulator or the DOJ? Jay has a heavy heart around the losses this week of Anthony Bourdain and Kate Spade, both by their own hand.

The members of the Everything Compliance panel are:

  • Jay Rosen– Jay is Vice President, Business Development Corporate Monitoring at Affiliated Monitors. Rosen can be reached at JRosen@affiliatedmonitors.com
  • Mike Volkov– One of the top FCPA commentators and practitioners around and the Chief Executive Officer of The Volkov Law Group, LLC. Volkov can be reached at mvolkov@volkovlawgroup.com.
  • Matt Kelly– Founder and CEO of Radical Compliance. Kelly can be reached at mkelly@radicalcompliance.com
  • Jonathan Armstrong– Rounding out the panel is our UK colleague, who is an experienced lawyer with Cordery in London. Armstrong can be reached at armstrong@corderycompliance.com

The host and producer of Everything Compliance is Tom Fox theCompliance Evangelist. His most recent book, The Complete Compliance Handbook is available on amazon.com.

Jun 13, 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 decline in Initial Public Offerings (IPOs). We consider legislation in the House of Representatives to gut the compliance requirements of Dodd-Frank and SOX, all in the name of increasing the number of IPOs. 

We review the testimony of Columbia Law School Professor John Coffee before a Congressional committee about these latest initiatives. His testimony is reported by Kevin LaCroix in his most excellent blog, the D&O Diary. Professor Coffee’s testimony  reflects his skepticism that further deregulation alone will result in increased numbers of IPOs. He relates several reasons for the worldwide drop in IPOs, which have nothing to do with Dodd-Frank, SOX or any other US law as they are structural and baked into the global financial system. He also notes that small companies which do go IPO usually have much worse financial performance than companies which seek funding through private equity.    

Professor Coffee’s testimony clearly demolishes the myth that Dodd-Frank was a job killer bill or that SOX’s Sec. 404 and 302 requirements have lessened the number of IPOs. There are a wide variety of factors, none of which has been addressed in the House legislative initiatives.

Jun 7, 2018

With a wild ride of FCPA cases over the past week, Jay Rosen and myself are back in the FCPA saddle  again to take a look at some of the top compliance stories from the past week.

  1. Société Générale S.A. becomes No. 5 in the Top 10 of FCPA settlements, paying $585MM for bribes paid to garner business in Libya. Dick Cassin reports in the FCPA Blog. Henry Cutter reports in the WSJ Risk and Compliance Journal. Jaclyn Jaeger gives full coverage to the FCPA and LIBOR violations in Compliance Week. (sub req’d)
  2. Legg Mason pays $71MM for being SocGen’s partner and fellow bribery schemer in Libya. Dick Cassin breaks the story (as usual) in the FCPA Blog. Tom blogs on Legg Mason hereand notes the inter-relatedness of the two matters in another blog here. The Legg Mason NPA is available here.
  3. Credit Suisse pays $47MM to settle a princeling FCPA enforcement action for its illegal hiring of sons and daughters of Chinese government officials. Dick Cassin reports in the FCPA Blog.
  4. In another princeling matter, Jonathan Browning and Donal Griffin report in Bloomberg that Deutsche Bank AG is under FCPA scrutiny for similar practices involving sons and daughters of Russian government officials.
  5. The new Director of the UK Serious Fraud Office is a Yank. See report by Dick Cassin in the FCPA Blog. Mara Lemos Stein asks if she will recharge the SFO in the WSJ Risk and Compliance Journal. The Bribery Act guys, Barry Vitou and Richard Kovalevsky QC give their take on com.
  6. Channelling his inner Churchill, Mike Volkov asks what happens when corporate leaders fail to listen. Find out in Corruption, Crime and Compliance.
  7. Netflix is more than a disruptor in movie watching and entertainment. It’s corporate governance model is also quite unique. Bill Snyder tells us how in Insights by Stanford Business.
  8. The devastating and company closing sanctions against ZTE will be lifted based upon a new deal with the Department of Commerce. Dick Cassin reports in the FCPA Blog. Anna Swanson reports in the NYT. Sam Rubenfeld reports in the WSJ Risk and Compliance Journal. Alex Lawson, writing in Law360 asks if sanction relief is now for sale?
  9. Tom announces a new Compliance Master Class, which will be held in Houston on June 21 & 22. 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. Tom has a great five-part series on Suspension and Debarment with AMI Managing Director Rod Grandon. Check out all five topics. Part 1-Introduction; Part 2-the differences between suspension and debarment; Part 3-Convergence of suspension and debarment and the FCPA; Part 4-what is present responsibility?; and Part 5-Remedies and Compliance. It is available on the FCPA Compliance Report, iTunes, Libsyn, YouTubeand JDSupra.

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 4, 2018

In this episode I visit with John Torres, the COO of Guidepost Solutions. We discuss the recent SEC enforcement action involving Yahoo and its failure to disclose data breaches in 2014, 2015 and 2016. As this was the first SEC enforcement action involving a public company for the failure to disclose to investors and shareholders information of a data breach which materially impacts an organization, Torres and I take a deep dive into the matter.

In this episode, we consider some of the following issues:

  • A discussion of the background facts in the Yahoo SEC enforcement action and why the matter is so important?
  • We consider what the SEC said was the obligation of a publicly listed company when it learns of a breach?
  • In Paragraph 9 of the SEC Order, there were a series of risk factors listed. We discuss their importance.
  • We consider when a publicly listed company must disclose a breach to outside auditors and/or outside counsel.
  • We consider the sufficiency of the penalty.

For a full copy of the SEC Order involving the Yahoo matter, click here.

Jun 1, 2018

With The Complete Compliance Handbook still sitting at the top of the rankings in its first week of sales, Jay Rosen and myself take a look at some of the top compliance stories over the past week, in the we're still no.1 Edition.

  1. GDPR is live. What does it mean for hotlines and whistleblowers? Ben DiPietro considers in the WSJ Risk and Compliance Journal. Cheryl O’Neill asks if contracts are a hidden risk under GDPR in Corporate Compliance Insights.
  2. Modernizing compliance: a viewpoint from the front lines, a report by Jaclyn Jaeger in Compliance Week. (sub req’d)
  3. What are the parameters of third party due diligence? Jonanthan Marks explains in his blog, Board Advisor.
  4. What does Roseanne and her termination by ABC mean for compliance professionals? Matt Kelly explores in Radical Compliance. Tom and Matt take a deep dive into the matter in Episode 83 of Compliance into the Weeds.
  5. How texting can expose your company to legal liability. Mike Pagini writes about it in Corporate Compliance Insights.
  6. Legg Mason reserves $67 Million for a FCPA settlement. Dick Cassin reports in the FCPA Blog.
  7. Mike Volkov says compliance officers need to up their game, prepare for the reckoning and do more in educating Boards and senior management on their roles in compliance. All found in his blog, Compliance and the Reckoning.
  8. What are the limitations of big data in compliance program? Henry Cutter explores the WSJ Risk and Compliance Journal.
  9. The Rockets and Celtics both gag on the big one: both losing in the conference finals at home, in Game 7. Fortunately the Red Sox and Astros are the two best teams in baseball and are playing this weekend.
  10. Tom announces a new Compliance Master Class, which will be held in Houston on June 21 & 22. Information and registration is available here. Learn about compliance from the guy who wrote the book on compliance.
  11. 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.
  12. Tom’s new book The Complete Compliance Handbookremains No. 1 in Amazon’s New Releases in Business Ethics. It is available oncom. Purchase an autographed copy here. It is reviewed in the FCPA Blog, Radical Complianceand Corruption, Crime and Compliance.
  13. Join me next week on a five-part exploration on Suspension and Debarment with AMI Managing Director Rod Grandon. It is available on the FCPA Compliance Report, iTunes, Libsyn, YouTubeand JDSupra.

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.

May 31, 2018

In this episode, Matt Kelly and I take a deep dive into the travails of Roseanne, her television network ABC and compliance over her vile and racist tweet comparing Obama advisor Valerie Jarrett to an ape. Immediately recognizing this is not a free speech issue, we consider the corporate response in light of corporate ethics, values and priorities. Matt wrote a great blog post on the topic, cited below. 

We consider how social media has not only changed the acceleration of negative events and reputational damage but how companies must balance some quite sensitive and important interests to make the right call on their response. We consider the response of ABC and recently Starbucks over its racial issues and contrast the approach of United Airlines when a passenger was literally dragged off a plane, while holding a confirmed ticket. In today’s age of the social media accelerant, this is one podcast you cannot afford to miss.    

Matt Kelly’s piece Roseanne, Corporate Priorities, and Social Media

May 25, 2018

With The Complete Compliance Handbooksitting at the top of the rankings in its first week of sales, Jay Rosen and myself take a look at some of the top compliance stories over the past week. 

  1. Tom’s new book The Complete Compliance Handbookwas released on Monday May 21. It is No. 1 in Amazon’s New Releases in Business Ethics. Available on Amazon.com. Purchase an autographed copy here. It is reviewed in the FCPA Blog, Radical Complianceand Corruption, Crime and Compliance.
  2. GDPR is live. Are you ready? Check out Tom’s blog postand white paper. For yet more on GDPR see the podcast series Countdown to GDPR: Episode 1 -Introduction; Episode 2 - The Role of the Data Protection Officer; Episode 3 - Policies and Procedures; Episode 4 - DPIAs; Episode 5 - Vendors in GDPR Compliance; Episode 6 - GDPR for Communications Professionals; Episode 7 - Data Security and Data Breachesand Episode 8 - Subject Access Requests
  3. Compliance Week 2018 is in the books. We review some of our highlights.
  4. The SFO brings new charges in the Unaoil matter. Dick Cassin reports in the FCPA Blog. Mara Lemos Stein reports in the WSJ Risk and Compliance Review.
  5. Matt Kelly considers doing compliance in the midst of corporate downturns, in Radical Compliance.
  6. DOJ announces two new indictments in the Rolls Royce bribery case. Dick Cassin reports in the FCPA Blog.
  7. Doing business with Pemex, it now requires contractors to have compliance program. Luis Corres reports in the FCPA Blog.
  8. What is nudging in compliance? Ben DiPietro reports in the WSJ Risk & Compliance Journal.
  9. The DOJ’s Evaluation of Corporate Compliance Program still resonates with complaince practitioners to help think through compliance programs and issues. Sascha Mastussak considers it in the SCCE Blog.
  10. Rockets take the lead in their series with Golden State 3-21 and are heading out west. Celtics head back to Cleveland up 3-2.
  11. The Everything Compliance gang is back in the Cohen and Friends edition. Check it out 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.

May 24, 2018

This week the gang sticks a roundtable Q&A, with a focus on the Michael Cohen imbroglio. Jay Rosen considers the lessons to be learned in hiring third-parties. Matt Kelly considers issue from the COSO angle: the control environment v. compliance activities. Mike Volkov weighs in search warrant and Bank Secrecy Act perspective. Jonathan Armstrong adds his own unique British perspective (IE., snark) to the conversation. In addition to the commentary we have the following rants:

  1. Matt gives a shout out to Preet Bharara to encourage him to run for NY state Attorney General. 
  1. Mike rants on CEO and C-Suite involvement in more and more corporate scandals.
  1. Jonathan rants on inane GDPR opt-in emails, which hopefully will end when GDPR goes live May 25.

   4. Jay rants on the lack of respect for his beloved Red Sox.

  1. Jim Moore steps in for a special guest rant on the Boston/Cleveland series officiating.
May 21, 2018

In this episode I visit with Nate Lankford, member at Miller & Chevalier on the firm’s FCPA Spring Review 2018. The quarterly Miller review is also an excellent resource for any FCPA or compliance practitioner, chocked full of statistics on enforcement actions, legal and compliance analysis, reports on international FCPA developments and commentary. It has always been a ‘Must Read’ review for any compliance professional. The FCPA Spring Review 2018 continues this trend.

In this episode, we consider some of the following issues:

  • What if anything, can be gleaned from the now one plus year of enforcement under the Trump Administration and Sessions-led Justice Department.
  • Has there been an untick in declinations?
  • Any uptick in individual prosecutions?
  • What are some of the key points from the following enforcement actions: Elbit, Transportation Logistics and Kinross?
  • Some of the top international developments including: Canada Updates Anti-Corruption Law and Enforcement Tools; French Anti-Corruption Agency Issues First Official Guidelines and France Enters into Two More Bribery-Related Negotiation Resolutions; Airbus Payment in Germany
  • The Digital Realty Trust v. Somers decision at the US Supreme Court and its implications for companies and compliance practitioners.
  • What has been the response to the new FCPA Corporate Enforcement Policy requirement for companies to prohibit software that generates but does not retain business records or communications.

A copy of the Miller & Chevalier FCPA Spring Review 2018 can be found here.

The quarterly Miller FCPA Review is a must read for any compliance professional. The Spring Review 2018 is no exception.

May 18, 2018

With Uncle Duke joining the compliance debate around Michael Cohen, Jay Rosen and myself take a look at some of the top compliance stories over the past week.

  1. The fallout from the Michael Cohen revelations continue to explode across the compliance universe. Matt Kelly considers it from a COSO perspective in Radical Compliance, Tom and Matt podcast have another podcast about it on Compliance into the Weeds, Tom channels his inner Hunter S. Thompson for a three part series, Part I-the Start, Part II-Full Gonzo and Part III-Uncle Duke. The NYT reportsthat the Novartis GC loses his job over the scandal.
  2. Rod Rosenstein announced a new “anti-piling on” policy. What does it mean for FCPA enforcement? Lara A. Covington and Michael E. Hantman, writing in the FCPA Blog, point out the strings attached and potential rewards. Tom considers the new policy (channeling Tom Wolfe) here.  For the full text of Rosenstein’s remarks see here.
  3. Writing in forbes.com Dan Pontefract says we need ethics professionals more than ever.
  4. The purveyors of the most excellent Global Anti-Corruption Blog, Rick Messick and Matthew Stepenson both post articles decaptitating the arguments against transparency into shell corporations. Rick’s piece is here. Matthew’s piece is here.
  5. What is it like to negotiate a FCPA/Bribery Act resolution, while heading up the remediation. Phoebe Seers reports on how the Innospec GC/CCO handled it in Mlex.
  6. Trump tweets out to protect Chinese jobs in the ZTE sanctions case. What are the implications? Sam Rubenfeld takes a look at the landscape in WSK Risk & Compliance Journal.
  7. Businesses are finding value in combining sustanibility and compliance. Ben DiPietro reports in the WSJ Risk & Compliance Journal.
  8. Cybersecurity whistleblowers are becoming increasingly important to the SEC and in the corporate world. Henry Cutter reports in the WSJ Risk & Compliance Journal.
  9. Rockets square their series with Golden State 1-1 and are heading out west. Celtics head to Cleveland up 2-0.
  10. Tom announces publication date of his next book, The Complete Compliance Handbook,which will be available on May 21, 2018 on Amazon.com. If you are attending Compliance Week 2018, Tom is have a book signing party on Monday, from 2:15 to 2:45. Come by and pick up an autographed copy.

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.

May 16, 2018

In this episode, Matt Kelly and I take a continued deep dive into the travails of Michael Cohen, AT&T and Novartis for their hire of Cohen’s company Essential Consulting. After last week’s emergency podcast on the topic, we take a more measured discussion of the latest series of allegations. We discuss the PR disaster which has beset both AT&T and Novartis and where things may be headed.  

For more reading on Cohen, Essential Consulting, AT&T and Novartis, see

Tom’s three piece series:

Michael Cohen, 3rd Party Consultants and Hunter S. Thompson: Part I

Michael Cohen, 3rd Party Consultants and Hunter S. Thompson: Part II, Full Gonzo

Michael Cohen, 3rd Party Consultants and Hunter S. Thompson: Part III - Where is Uncle Duke?

 

Matt Kelly’s piece AT&T Wins Ethics Award, Looks Ridiculous

May 14, 2018

In this episode I present a live podcast recording made at the 6thLEC Compliance Conference in Sao Paulo last week. In the podcast I interviewed Carlos Ayres, partner at Meada, Ayres and Sarubbi and Matt Ellis, Member at Miller & Chevalier. We discuss the burgeoning compliance scene in Brazil and across the continent of South America. Ayres reflects on some current issues facing compliance practitioners in region. Ellis discusses the raft of new anti-corruption laws in the continent. They both discuss the challenge of representing multi-nationals across the continent who may be subject multiple ongoing investigations and enforcement actions. They point out some of the unique compliance issues for the region. It is fascinating discussion of the current state of compliance and anti-corruption enforcement in Brazil and across the entire continent.

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