The FCPA Report

The definitive source of actionable intelligence covering the Foreign Corrupt Practices Act

Articles By Topic

By Topic: Compliance Policies and Procedures

  • From Vol. 6 No.6 (Mar. 29, 2017)

    Managing Subsidiary Risks: Setting Things Up for Success (Part One of Three)

    A common theme of many anti-corruption settlements is the involvement of foreign subsidiaries. A parent company may have little oversight of its far-flung subsidiaries, but can still be on the hook if bribes are paid or books and records are not kept properly. In this three-part series, The FCPA Report will look at the different ways companies can minimize and mitigate anti-corruption risks at their subsidiaries. In this first part, we discuss how companies can be held liable for the actions of their subsidiaries and how subsidiaries can be set up for success from the beginning – both when building one from scratch and when acquiring an already existing company. The subsequent articles will discuss how companies can use culture, communication and internal controls to keep subsidiary risks in check. See “How to Mitigate FCPA Risk Before and After an Acquisition” (Feb. 18, 2015).

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  • From Vol. 6 No.5 (Mar. 15, 2017)

    Rolls Settlement Illuminates SFO Expectations for Cooperation and Compliance

    Rolls-Royce’s recent settlement with U.K., U.S. and Brazilian authorities was a key development in global anti-corruption enforcement. The case opens a window into what the SFO, now a major player on the field of anti-corruption enforcement, expects from companies both in terms of cooperation and remediation. That information may prove crucial for many multinational companies as U.K. enforcement continues to assert its dominance on the anti-corruption stage. See “Rolls-Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption” (Feb. 15, 2017) and “SFO Arrives in the Anti-Corruption Premier League With Rolls-Royce Settlement” (Mar. 1, 2017).

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  • From Vol. 6 No.5 (Mar. 15, 2017)

    To Certify or Not to Certify: Considerations for Whether to Certify Compliance With the Anti-Bribery Standard ISO 37001

    Considerable interest surrounds the International Organization for Standardization’s Anti-Bribery Standard, referred to as ISO 37001 and published in October 2016. However, it is important for businesses to be mindful of the distinction between an exacting technical standard for a product and the broad, principle-based nature of the Anti-Bribery Standard. In a guest article, Ryan Rohlfsen, a partner at Ropes & Gray, and associates Kia Grant and Molly Gachignard, discuss how companies should weigh the costs and benefits of choosing to certify under ISO 37001. See “Developing Key Performance Indicators and Tracking Metrics Using ISO 37001 (Part One of Two)” (Nov. 9, 2016); Part Two (Nov. 23, 2016).

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  • From Vol. 6 No.4 (Mar. 1, 2017)

    SFO Arrives in the Anti-Corruption Premier League With Rolls-Royce Settlement

    The U.K.’s Serious Fraud Office has struggled for legitimacy in recent years, with a limited number of enforcement actions under its belt and a shrinking budget. But its recent settlement with Rolls-Royce has established it as a force to be reckoned with in global anti-corruption enforcement. “The settlement catapults the SFO into the Premier League of global anti-bribery law enforcement,” said London-based Barry Vitou, head of Pinsent Masons’ corporate crime team. But is it sending mixed messages about the value of cooperation and self-reporting? For more on the settlement, see “Rolls-Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption” (Feb. 15, 2017).

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  • From Vol. 6 No.3 (Feb. 15, 2017)

    Rolls Royce Settlement Offers Lessons on How to Pay Commissions Without Corruption

    Rolls Royce’s recent massive settlement with U.S., U.K. and Brazilian authorities is a stark reminder of the anti-corruption risks associated with intermediaries, agents and fixers when negotiating contracts with state-owned entities. Commissions paid by Rolls Royce to its agents – including notorious oil-and-gas “solutions” provider Unaoil – often were eventually passed on to foreign officials to close deals, netting Rolls Royce a global settlement for hundreds of millions of dollars. In this first article discussing the case, we look at the bribes Rolls Royce paid, how its compliance program failed to prevent them and what companies can do to make sure that commissions paid to agents are not used improperly. In a second article, we will look at the implications for cooperative U.S. and U.K. enforcement and what the SFO is looking for in terms of cooperation and remediation. See “Bribery Act Experts Discuss the Impact of Brexit, DPAs and Other U.K. Developments” (Jul. 13, 2016).

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  • From Vol. 5 No.25 (Dec. 21, 2016)

    Top FCPA Officials Encourage Strong Compliance Programs and Remediation, the Defense Bar Responds

    A year after the DOJ hired an in-house counsel to assist with assessing companies’ compliance programs, top enforcers at the DOJ, as well as the SEC, are touting the importance of compliance in anti-corruption resolutions. At ACI’s 33rd International Conference on the FCPA, recently held in Washington, D.C., federal regulators discussed the role Hui Chen is playing at the DOJ, how proactive remediation can lead to less harsh settlement terms and what the continued focus on individual accountability means for companies and their executives. The FCPA Report spoke to defense counsel for their reaction to the government’s statements. For additional coverage of the government speakers at this year’s conference, see “Ceresney and Yates Continue to Stress Individual Accountability, Voluntary Reporting and Cooperation” (Dec. 7, 2016).

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  • From Vol. 5 No.24 (Dec. 7, 2016)

    A Dish of Cream? Some Caviare? Or Strassburg Pie? How to Properly Respond to Bribery Requests  

    “Before a Cat will condescend to treat you as a trusted friend, some little token of esteem is needed, like a dish of cream,” T.S. Eliot wrote in his Book of Practical Cats. Ensuring that an employee properly responds to a bribe request is no easy task because providing the soliciting individual with a “little token of esteem” may be the path of least resistance for employees. In a guest article, Hogan Lovells attorneys Peter Spivack and Rafael Ribeiro discuss how a company can strengthen all aspects of its compliance program to minimize the risk that bribes will be requested and ensure that their employees respond appropriately when they are. For further insights from Hogan Lovells, see “How Companies Can Use Enhanced Auditing Techniques to Address the Government’s Increasing Focus on Internal Controls” (May 13, 2015).

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  • From Vol. 5 No.23 (Nov. 23, 2016)

    Developing Key Performance Indicators and Tracking Metrics Using ISO 37001 (Part Two of Two)

    The International Organisation for Standardisation’s new standard for anti-bribery management systems – ISO 37001 – provides a useful frame of reference for companies developing management tools such as key performance indicators (KPIs) and tracking metrics to address anti-corruption compliance. In the first part of this guest article series, Matthew Herrington, a partner at Steptoe & Johnson, Jonathan Drimmer, vice president and deputy general counsel at Barrick Gold Corp., and Leslie Benton, vice president of advocacy and stakeholder engagement of CREATE.org, explained how to use ISO 37001 to develop management tools such as KPIs and tracking metrics to address anti-corruption compliance, and provided an example of a KPI strategy mapped to the training requirement. In this second part, they examine additional areas of ISO 37001 that naturally lend themselves to KPI and/or metrics. See “Developing Key Performance Indicators and Tracking Metrics for an Anti-Corruption Program” Part One of Two)” (Feb. 24, 2016); Part Two (Mar. 9, 2016).

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  • From Vol. 5 No.22 (Nov. 9, 2016)

    A Guide to Enforcing Audit Rights, the Next Third-Party Management Frontier: What to Do Before an Audit (Part One of Three)

    While companies, recognizing the significance of third-party risk, have become increasingly sophisticated about vetting their business partners before an engagement, many still struggle with monitoring those relationships. Ongoing third-party management, including conducting regular third-party audits, is the next frontier in anti-corruption compliance. The FCPA Report’s three-part guide to enforcing audit rights is designed to meet companies where they are, helping them to tackle third-party audits while being mindful of the potential landmines inherent in the process. In this, the first article in the series, we discuss drafting third-party audit procedures and policies and outline seven steps a company should take prior to conducting an onsite audit of a third party. Upcoming installments of the series will discuss how to perform an onsite audit of a third party, address some of the challenges companies will face while auditing and outline measures companies should take after an audit is complete. See “EY’s Rick Sibery Outlines a Seven-Step Process for Monitoring Third Parties” (Oct. 20, 2016.) 

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  • From Vol. 5 No.22 (Nov. 9, 2016)

    Developing Key Performance Indicators and Tracking Metrics Using ISO 37001 (Part One of Two) 

    The International Organisation for Standardisation, a worldwide federation of national standards bodies, recently released a standard for anti-bribery management systems – ISO 37001. The new standard sets forth requirements for such a program, as well as guidance for establishing, implementing, maintaining, reviewing and improving it. It is a fairly detailed document spanning a range of topics such as employment procedures, third-party due diligence, risk assessments, financial and non-financial controls, and internal audits. In a guest article, Matthew Herrington, a partner at Steptoe & Johnson, Jonathan Drimmer, vice president and deputy general counsel at Barrick Gold Corp., and Leslie Benton, vice president of advocacy and stakeholder engagement of CREATE.org, discuss how companies can use the ISO to develop management tools such as key performance indicators (KPIs) and tracking metrics to address anti-corruption compliance. See “Developing Key Performance Indicators and Tracking Metrics for an Anti-Corruption Program” Part One (Feb. 24, 2016); Part Two (Mar. 9, 2016).

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  • From Vol. 5 No.20 (Oct. 12, 2016)

    PwC State of Compliance Survey Explores Compliance and Ethics Leadership, Risk Assessments and Compliance Oversight

    How are companies relating ethics and compliance controls to business strategy and risk management functions? PwC recently surveyed 800 executives at top global companies to examine how they approach compliance, including their methods of assessing risk and the structures of their compliance functions. See also “PwC Report Offers Five Ways to Elevate the Role of the Compliance Function” (Jul. 8, 2015); and “PwC Survey Examines the Role of the Compliance Officer” (Jul. 9, 2014).

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  • From Vol. 5 No.19 (Sep. 28, 2016)

    What Compliance Lessons Can Companies Learn From the SFO’s First Two DPAs?

    In July 2016, the U.K.’s Serious Fraud Office received court approval for its second-ever DPA. Both this DPA and the one before it, involving Standard Bank, are stark demonstrations of the fact that violating the U.K. Bribery Act can have serious and expensive ramifications not only for the offending company but also for others in its corporate group, even if they were unaware of the bribery. They also serve as another reminder of the dangers of using agents to win business. In a guest article, Matthew Getz and Prateek Swaika, partner and associate, respectively, at Boies, Schiller & Flexner, consider some of the lessons to be learned in this context, and what companies operating in the U.K. should do to avoid incurring liability when using agents to enter into contracts. See also “In Second DPA, SFO and U.K. Court Focus on Cooperation, Self-Reporting and Compliance” (Aug. 31, 2016).

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  • From Vol. 5 No.19 (Sep. 28, 2016)

    Experts from PwC Discuss Compliance Audits and Common Missteps

    Compliance auditing is a critical component of an effective anti-corruption compliance program, recognized both by the U.S. Sentencing Guidelines and the government’s FCPA Resource Guide. A recent Strafford program, “FCPA Compliance Audits: Lessons From Recent Investigations,” discussed regulators’ expectations regarding compliance auditing, the process for scoping and conducting a compliance audit and common audit pitfalls. David A. Wilson, a partner at Thompson Hine, led the discussion, which featured Sulaksh Shah, a partner at PwC, and James Gargas, a director at that firm. This article discusses some of the key takeaways from the program. See also our interview series, “Best Practices for Performing Compliance Program Assessments: Pamela Passman of CREATe.org” (Apr. 6, 2016); “Susan Markel of AlixPartners” (Feb. 24, 2016); and “Jeffrey Kaplan of Kaplan & Walker” (Nov. 4, 2015).

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  • From Vol. 5 No.18 (Sep. 14, 2016)

    Five Ways a Company Can Leverage Its Anti-Bribery Compliance Program to Facilitate Sanctions Compliance

    While often treated separately by companies, anti-bribery and sanctions compliance risks frequently intersect. Companies can ensure effective compliance with both types of regulations more efficiently, effectively and economically by combining certain knowledge and resources to jointly address these areas. In a guest article, Baker & McKenzie partner Ryan Fayhee and his associates Geoff Martin and Alexandre Lamy review how the jurisdictional reach and risks presented by anti-bribery and sanctions regulations tend to converge and suggest concrete ways that companies can leverage their anti-bribery compliance programs to facilitate sanctions compliance. Fayhee will also be sharing his thoughts on the topic at the upcoming SCCE Compliance and Ethics Institute in Chicago. See “Finding Synergies in OFAC and FCPA Compliance” (Nov. 19, 2014). 

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  • From Vol. 5 No.14 (Jul. 13, 2016)

    Treating Like Cases Alike – A Tool for Quantifying Compliance Issue Severity 

    As many practitioners in the compliance community will attest, a significant number of FCPA violations can come across their desk. How can a company ensure that possible FCPA violations are acted on consistently and equitably? In a guest article, Matt Herrington and Stephanie Wang of Steptoe & Johnson propose an analytical tool that allows companies to distill allegations regarding FCPA violations into certain quantifiable factors, allowing compliance officers to create a methodological approach to what investigative response should be taken in any given situation. Such an analysis makes it easier to identify similar allegations and act consistently and, in the event that the government ends up being involved, this severity analysis can help justify the actions taken by the company. Herrington and Wang demonstrate the use of their proposed tool with five hypotheticals and illustrative graphs. See also “Developing Key Performance Indicators and Tracking Metrics for an Anti-Corruption Program” Part One (Feb. 24, 2016); Part Two (Mar. 9, 2016).

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  • From Vol. 5 No.12 (Jun. 15, 2016)

    The Italian Organismo di Vigilanza, A Model for an Effective Compliance Committee

    As anti-corruption enforcement continues to expand around the globe, companies have much to learn from the way organizations operating in other regions approach compliance. In Italy, companies can avoid anti-corruption liability by adopting effective compliance standards and controls including a compliance committee called an Organismo di Vigilanza. According to the best practices and guidelines issued by relevant industry associations, a company’s Organismo di Vigilanza, in combination with company leadership, should be responsible for the supervision of the company’s compliance program, preventing prohibited behaviors and for reviews, updates and training. In a guest article, Aurelio Giovannelli and Roberto Cursano – partner and counsel, respectively, at Baker & McKenzie’s Studio Professionale Associato in Rome – discuss the laws governing the Organismo di Vigilanza and how to form such a committee. See also “Regional Risk Spotlight: Baker & McKenzie Lawyers Discuss Italy’s Corruption Risks and Unique Compliance Model” (Apr. 20, 2016). 

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  • From Vol. 5 No.10 (May 18, 2016)

    Using the FCPA Pilot Program’s Remediation Requirements to Build a Best-in-Class Compliance Program

    The DOJ’s new pilot program, announced in April 2016, is designed to encourage companies to voluntarily self-disclose FCPA-related misconduct. Although the pilot program provides some greater clarity on the specific benefits that companies can receive through cooperation, the program’s guidance largely re-articulates much of what has already been known to FCPA practitioners – that self-disclosure, cooperation and remediation will be important factors determining an appropriate disposition for FCPA violations. But the program’s guidance under its “remediation” requirements is worth a closer look. In a guest article, Bill Jordan and Ted Kang, partners, and Kristen Kuan, an associate at Alston & Bird, draw on their experience interacting with the DOJ to detail how a company can use the new remediation requirements as well as other “best practice” guidance to build a best-in-class compliance program. See “DOJ Compliance Counsel Hui Chen Is on the Job and Looking for Key Aspects of Strong Compliance Programs” (Nov. 18, 2015).

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  • From Vol. 5 No.7 (Apr. 6, 2016)

    Travel and Entertainment Corruption Risks: Internal Controls to Ensure the Program Is Working (Part Three of Three)

    A strong travel and entertainment policy that clearly delineates between an acceptable business expense and an impermissible bribe is critical to keeping a company out of FCPA trouble. But a policy alone is not enough – a company must also have sufficient internal controls in place to ensure that employees understand and follow company policies. In this final installment of The FCPA Report’s three-part series on travel and entertainment expenses, we explore the controls companies should have in place to keep their travel and entertainment programs working effectively. The first article in the series discussed the hallmarks of an appropriate T&E expense and the second looked at T&E policies. See also “Five Stages of Corruption and Myriad Internal Controls Failures: Compliance Takeaways From the VimpelCom Settlement” (Mar. 9, 2016).

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  • From Vol. 5 No.7 (Apr. 6, 2016)

    Analyzing Spain’s New Corporate Compliance Defense

    Spanish criminal law now includes an affirmative compliance program defense that, when read together with the diligence duties under the Spanish Companies Act, obligates companies to implement corporate compliance programs designed to prevent criminal activity. In a guest article, Rafael Jiménez-Gusi and Diego Pol Longo, partner and associate at Baker & McKenzie Barcelona, analyze the new law and subsequent developments including guidance issued by the Spanish Public Prosecutor and the Spanish Supreme Court. See “Australia’s Shifting Foreign Bribery Regime” (Dec. 2, 2015).

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  • From Vol. 5 No.7 (Apr. 6, 2016)

    Compliance Professionals Share Insights on Revitalizing Codes of Conduct

    A company’s code of conduct is the bedrock of a strong compliance program but it cannot be set in stone. Companies need to reevaluate and periodically update their codes to ensure their relevance. A recent panel discussion at Ethisphere’s 8th Annual Global Ethics Summit looked at the experiences of three large corporations in updating and upgrading their codes of conduct, focusing on the key issues they faced in the process. The program was moderated by Ed Petry, vice president at NAVEX Global, and featured Megan Belcher, vice president and chief counsel at ConAgra Foods, Bettye J. Hill, vice president and chief ethics and compliance officer at Oshkosh Corporation, and Peter Loftspring, assistant general counsel and chief compliance manager at Black & Veatch Corporation. This article summarizes the key takeaways from the program. See also “Customizing Codes of Conduct to Spread the Message of Compliance” (Mar. 4, 2015); and “Six Steps to Revitalize the Company Compliance Code” (Aug. 20, 2014).

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  • From Vol. 5 No.6 (Mar. 23, 2016)

    Travel and Entertainment Corruption Risks: Three Musts for a Strong T&E Policy and Five Ways a Company Can Customize Its Program (Part Two of Three)

    A strong travel and entertainment policy is the bedrock of a compliance program, but a policy that is overly complicated or doesn’t consider business realities may undermine a company’s compliance efforts. In this article, the second in a three-part series on travel and entertainment expenses, we explore three characteristics of a strong T&E compliance policy and five ways companies can customize their policy to their business. The first article in the series outlined five hallmarks of an acceptable T&E expense and the third article will investigate what internal controls a company needs to make sure that its program is functioning properly. See also “How to Build an Anti-Corruption Policy That Allows for Appropriate Business Gifts” (Sep. 19, 2012).

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  • From Vol. 5 No.6 (Mar. 23, 2016)

    Twenty Ways a Company Can Use Behavioral Psychology to Improve Compliance

    Compliance resources are never unlimited, but there are ways for compliance personnel to improve the effectiveness of compliance messages at minimal expense. Behavioral psychology can be used to leverage compliance resources and to more effectively encourage people to do the right thing in their jobs, Virginia MacSuibhne, vice president and general counsel of Ventana Medical Systems, explained during a recent Clear Law Institute program. MacSuibhne presented 20 inexpensive, but effective, communication tools that can be used to assure that a compliance message hits home. See also Five Practical Steps for Creating a Compliant Tone in the Middle (Dec. 16, 2015).

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  • From Vol. 5 No.5 (Mar. 9, 2016)

    Developing Key Performance Indicators and Tracking Metrics for an Anti-Corruption Program (Part Two of Two)

    Key Performance Indicators (KPIs) and tracking metrics, regularly used to measure and evaluate the success of a variety of business actors and activities, are increasingly being used to take the temperature of a company’s compliance department as well. A company can use KPIs and metrics to help determine (1) whether its compliance program is being implemented in a robust and good faith manner and (2) whether the elements of the program, and the program itself, are effective in achieving their desired goals. In a two-part guest article series, Jonathan Drimmer, vice president and deputy general counsel at Barrick Gold Corp., and Matthew Herrington, a partner at Steptoe & Johnson, provide a guide for developing and using KPIs and metrics in anti-corruption compliance programs. The first article outlined how to develop and use metrics and KPIs to assess robustness and effectiveness. This second article provides specific examples of KPIs and metrics that can be used to evaluate many of the hallmarks of an effective compliance program, as identified in the DOJ/SEC FCPA Resource Guide.

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  • From Vol. 5 No.5 (Mar. 9, 2016)

    Travel and Entertainment Corruption Risks: Five Hallmarks of an Acceptable Hospitality Expenditure (Part One of Three)

    Flying clients to visit factories, putting them up in hotels while they attend meetings and picking up the tab for their dinner can all be regular and acceptable business activities. But when those clients are officials of foreign governments, companies must tread carefully to ensure that genuine business expenses don’t become impermissible bribes. The abuse of travel and entertainment expenses was one of the first areas of focus for the government when it escalated FCPA enforcement over a decade ago and now many companies have established T&E compliance programs. However, as recent settlements involving T&E demonstrate, companies cannot afford to become complacent. This article, the first in a three-part series, sketches in the contours of the boundary between acceptable entertainment and corruption and identifies five hallmarks of appropriate travel and entertainment. Subsequent articles will address what a solid travel and entertainment policy should look like and how companies can actively monitor their T&E programs to prevent fraud and corruption. See also “A Guide to Detecting and Preventing Expense-Reimbursement Fraud (Part One of Three)” (Apr. 16, 2014); Part Two (Apr. 30, 2014); and Part Three (May 14, 2014).

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  • From Vol. 5 No.5 (Mar. 9, 2016)

    Five Stages of Corruption and Myriad Internal Controls Failures: Compliance Takeaways From the VimpelCom Settlement

    VimpelCom’s historic settlement with U.S. and Dutch authorities was notable for many reasons, among them the enormous penalties and disgorgement paid and the DOJ’s attendant civil forfeiture suit. But beyond the settlement itself, which was discussed in the first part of this two-part article series, the underlying bribery scheme is noteworthy – and informative – as well. Over and over the company’s weak internal controls enabled employees to make corrupt payments to a government official in Uzbekistan. Here, we take a close look at the five stages of corruption that were outlined by the DOJ in its criminal information. The underlying facts show the mechanics of how corrupt payments can be made and how strong internal controls could have prevented them. See “Examining New DOJ Compliance Counsel Hui Chen’s Four Elements of a Successful Compliance Program” (Jan. 13, 2016).

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  • From Vol. 5 No.4 (Feb. 24, 2016)

    Developing Key Performance Indicators and Tracking Metrics for an Anti-Corruption Program (Part One of Two)

    Key Performance Indicators (KPIs) and tracking metrics are a fact of everyday life for business organizations. Both are tools used to measure and evaluate the success of a wide variety of actors and activities and anti-corruption compliance is no exception. Increasingly, companies and regulatory agencies are relying on metrics and KPIs in judging whether (1) a compliance program is being implemented in a robust and good faith manner; and (2) the elements of the programs, and the program itself, are effective in achieving their desired goals. In this first installment of a two-part guest article series, Jonathan Drimmer, vice president and deputy general counsel at Barrick Gold Corp., and Matthew Herrington, a partner at Steptoe & Johnson, discuss the differences between KPIs and metrics in anti-corruption compliance programs, how metrics and KPIs can be used and relied upon to assess robustness and effectiveness, and how good KPIs and tracking metrics are developed. The second article will give examples of KPIs and tracking metrics that companies might consider for some of the primary elements of anti-corruption compliance programs. See also “Defining, Documenting and Measuring Compliance Program Effectiveness” (Dec. 2, 2015).

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  • From Vol. 5 No.2 (Jan. 27, 2016)

    Survey Highlights Surprising Lack of Corporate Anti-Corruption Efforts

    The World Bank estimates that $1 trillion is lost to corruption of foreign public officials each year. Yet, a recent survey conducted in the second half of 2015 by the economic crime and justice studies department at Utica College, along with risk and business consulting firm Protiviti Inc., found that company anti-corruption efforts are lacking. During a recent panel discussion, Scott Moritz, a Protiviti managing director, observed that most companies are not well positioned to deter, detect or investigate fraud and corruption. We summarize the most concerning portions of the survey report to help compliance professionals evaluate their programs and advocate for sufficient resources. See also “Ernst & Young’s Fraud Survey Warns of Anti-Corruption Complacency” (Jun. 25, 2014); and “Kroll Managing Director Extracts Practical Lessons From 2013 Anti-Bribery and Corruption Benchmarking Survey” (Jun. 26, 2013).

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  • From Vol. 5 No.1 (Jan. 13, 2016)

    Examining New DOJ Compliance Counsel Hui Chen’s Four Elements of a Successful Compliance Program

    Hui Chen, the first-ever compliance counsel to the Fraud Section at the DOJ, described her new role as a “bridge between the compliance community and the prosecutors at the Fraud Section” in remarks at the ACI FCPA Conference shortly after she started at the DOJ in late 2015. The former prosecutor and compliance officer outlined the elements of a healthy compliance program that she will be looking for as she makes her assessments. The FCPA Report discussed these elements with experts who have both in-house and prosecutorial experience to determine the reasonableness of these expectations and what else companies need for a strong program. See “DOJ Compliance Counsel Hui Chen Is on the Job and Looking for Key Aspects of Strong Compliance Programs” (Nov. 18, 2015).

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  • From Vol. 5 No.1 (Jan. 13, 2016)

    Experts at GE and LRN Say Think Globally, Act Locally to Build a Stronger Global Compliance Program

    Without a strong corporate culture, leadership and planning, a compliance program can get lost in a miasma of legal and cultural differences. At a recent PLI workshop, Felipe Paez, chief compliance officer of GE Global Research, and Mark Rowe, an ethics, compliance and culture strategist and advisor at LRN, discussed how companies can create (and how GE has created) a global compliance program by thinking globally, acting locally and using codes of conduct and investigations as tools to build an ethical culture and strong world-wide compliance program. See “Google, Boeing, Walmart and PwC Leaders Share Strategies for Overcoming Cultural Hurdles in Compliance” (Apr. 29, 2015).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    Breaking Down Compliance Silos and Creating a More Centralized Compliance Program

    Growing companies, particularly those expanding through mergers and acquisitions, face many challenges when trying to integrate and upgrade their anti-corruption programs.  A company may discover, for example, that various business units are approaching compliance in very different ways and have different levels of sophistication.  One way to address these issues is to move towards a more centralized compliance model, Bobby Kipp, compliance, ethics and risk management leader at PwC, explained during an interview with The FCPA Report.  Kipp recommends that companies consider a hybrid approach, centralizing some functions but allowing the businesses to be involved in implementation.  Kipp addressed the risks and benefits of using a hybrid approach and detailed the steps a company should take to break down compliance silos and create a hybrid system.  See “Creating a Values-Based Compliance Code and Recruiting Compliance Champions to Spread the Message,” The FCPA Report, Vol. 4, No. 23 (Nov. 4, 2015).

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  • From Vol. 4 No.26 (Dec. 16, 2015)

    Five Practical Steps for Creating a Compliant Tone in the Middle

    As more corporate leaders recognize the impact of organizational culture on the bottom line, they are also realizing just how important front-line management is when intentionally crafting corporate culture.  Recent studies demonstrate that line managers can directly influence the tone of acceptable behavior in an organization.  In a guest article, Dr. Marsha Ershaghi Hames, a practice leader in LRN, Inc.’s education advisory services group, discusses the importance of leading from the middle and provides five practical tips for implementing a stronger tone in the middle strategy.  See “Eight Ways Compliance Officers Can Build Relationships with the ‘Middle’,” The FCPA Report, Vol. 4, No. 20 (Oct. 7, 2015).

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  • From Vol. 4 No.25 (Dec. 2, 2015)

    Defining, Documenting and Measuring Compliance Program Effectiveness

    The risks of having a compliance program that exists only on paper are well-known, but measuring whether the program is actually working, how it is working, and documenting those findings for internal and external stakeholders present challenges.  A recent program at the SCCE Annual Compliance & Ethics Institute considered how compliance professionals can take steps, through documentation and measurement, to demonstrate the effectiveness of their compliance programs.  The program featured Scott Hilsen, a managing director at KPMG Forensic and Jean-Paul Durand, a vice president and chief ethics and compliance officer at Tech Data Corporation.  See also “How Can CCOs Demonstrate Compliance Program Effectiveness?,” The FCPA Report, Vol. 3, No. 19 (Sep. 24, 2014).

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  • From Vol. 4 No.24 (Nov. 18, 2015)

    DOJ Compliance Counsel Hui Chen Is on the Job and Looking for Key Aspects of Strong Compliance Programs

    On November 3, 2015, Hui Chen began work at her new job as compliance counsel to the Fraud Section of the DOJ’s Criminal Division.  Since the DOJ announced the creation of the role in July, there has been no shortage of speculation about the meaning of the new position for FCPA enforcement.  Along with the announcement of Chen’s start, the DOJ has tried to answer that speculation with some guidance, offering further information on what the role will entail and outlining its key expectations for a strong compliance program.  See “DOJ’s New FCPA Compliance Counsel: A Fairer Assessment for Companies,” The FCPA Report, Vol. 4, No. 16 (Aug. 5, 2015).

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  • From Vol. 4 No.23 (Nov. 4, 2015)

    Creating a Values-Based Compliance Code and Recruiting Compliance Champions to Spread the Message

    How can a company create a compliance policy that reflects its core business values?  Once that policy is created, how can a company spread the compliance message effectively across multiple nationalities, languages and countries?  How can it encourage employees to comply with the updated policy?  Accomplishing those goals is no easy task, Dr. Marsha Ershaghi Hames, practice leader in LRN’s education, culture and leadership advisory services department, told The FCPA Report during a recent interview.  Ershaghi Hames discussed how a company should evaluate its current code, how it can spread the message amongst employees, how it can use regional compliance champions to strengthen its messaging and more.  See also “How to Build a Compliant Culture and Stronger Company from the ‘Middle’ (Part One of Three),” The FCPA Report, Vol. 4, No. 7 (Apr. 1, 2015); Part Two, Vol. 4, No. 8 (Apr. 15, 2015); Part Three, Vol. 4, No. 9 (Apr. 29, 2015).

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  • From Vol. 4 No.23 (Nov. 4, 2015)

    In-House Compliance Experts Share Five Strategies for Building a High-Performing Compliance Team

    A chief compliance officer is often asked to “build the ship while sailing” – to staff a high-performing compliance department and develop a compliance strategy while simultaneously meeting the company’s ongoing compliance needs.  During a recent panel at SCCE’s Compliance & Ethics Institute, a distinguished group of in-house compliance experts discussed five best practices for developing effective compliance and ethics teams.  The panelists – whose experience spans a range of companies – included Donna Boehme, a principal at Compliance Strategists and formerly the group compliance and ethics officer for BP; Stephen Naughton, chief ethics and compliance officer for Kimberly-Clark and previously chief compliance officer for PepsiCo; Janice Innis-Thompson, chief compliance officer at TIAA-CREF; and Judi Nocito, senior advisor with Compliance Strategists and previously a director of global compliance for Alcoa.  See also “How to Structure Chief Compliance Officer Reporting Lines to Maximize the Efficacy of Anti-Corruption Compliance (Part One of Three),” The FCPA Report, Vol. 2, No. 22 (Nov. 6, 2013); Part Two, Vol. 2, No. 23 (Nov. 20, 2013); Part Three, Vol. 2, No. 24 (Dec. 4, 2013).

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  • From Vol. 4 No.17 (Aug. 19, 2015)

    Thinking Outside the Box: Examining the Growing Trend of Compliance Outsourcing (Part One of Two)

    As anti-corruption enforcement efforts mature, governments are raising the compliance bar.  Implementing and maintaining a best-in-class compliance program that meets these ever-rising standards requires significant human resources and can overwhelm a compliance department, even at a large company.  To help ease the burden on in-house compliance personnel, many companies are outsourcing compliance activities – such as proactive monitoring, training and hotline operations – to third-party vendors.  Some have even gone so far as to hire an outside vendor to serve as their chief compliance officer.  In this two-part article series, we examine the outsourcing trend and discuss the benefits and risks of outsourcing various compliance functions.  This first article discusses the reasons a company might outsource some or all of its compliance functions and explores the associated risks and benefits.  The second article will look at how companies are outsourcing various compliance functions.  See “The Nuts and Bolts of Anti-Corruption Hotlines: An Interview with Benjamin Haley of Covington & Burling,” The FCPA Report, Vol. 3, No. 19 (Sep. 24, 2014).

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  • From Vol. 4 No.17 (Aug. 19, 2015)

    Former Sales Exec Discusses How to Combat Corruption in the Field

    Anti-corruption policies are generally formulated in a company’s home office by attorneys and other compliance personnel.  But corruption usually happens on the front lines of a company’s international business – miles and sometimes oceans away.  Policies that seem sensible from corporate headquarters may look very different in far-flung locations around the world.  How can companies shape their business and compliance programs in such a way that they can stand up to the realities of life in the field?  At a recent event hosted by The Network, Inc., former sales executive Richard Bistrong, who spent 14 months in prison for FCPA violations, presented six risk factors employees on the front line face and provided actionable insight about combating those risks.  See “Mitigating Bribery Risks Using Financial Controls, Risk Assessments and Leveraging Internal Resources,” The FCPA Report, Vol. 3, No. 18 (Sep. 10, 2014).

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  • From Vol. 4 No.16 (Aug. 5, 2015)

    Four Compliance Lessons from Lesser-Known FCPA Cases

    In today’s active FCPA enforcement environment, the compliance bar is always rising.  Although most compliance specialists are familiar with the details of the headline-grabbing cases such as PetroTiger and FLIR, smaller, less-publicized cases can also provide valuable insight on how best to avoid FCPA liability.  In a recent webinar hosted by the Society of Corporate Compliance and Ethics, Bill Currier, a partner at White & Case, and Sulaksh Shah, a partner in PwC’s forensic service practice, discussed how companies can use the SEC and DOJ’s enforcement activity in recent, lower-profile corruption cases to tailor their compliance programs to the unique needs, risks and structures of their businesses or industries.  See also “Best Practices for Reviewing Anti-Corruption Compliance Programs: Government Expectations, Scheduling and Staffing (Part One of Three),” The FCPA Report, Vol. 2, No. 16 (Aug. 7, 2013); “Challenges, Preparation and Risk Evaluation (Part Two of Three),” Vol. 2, No. 17 (Aug. 21, 2013); and “Implementation, Remediation and Documents (Part Three of Three),” Vol. 2, No. 18 (Sep. 11, 2013).

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  • From Vol. 4 No.12 (Jun. 10, 2015)

    In-House and Outside Counsel Share Advice on Risk Assessments, Gift Policies and Third-Party Due Diligence

    Effective risk assessments, strong third-party practices and gifts and hospitality procedures that hold up under fire are at the heart of best-in-class anti-corruption compliance programs.  In a recent Practising Law Institute event, moderated by Gibson Dunn partner Richard W. Grime, outside and in-house counsel discussed how they tackle developing, implementing and monitoring those essential features of compliance programs.  The panel included Kathryn Cameron Atkinson, a member at Miller & Chevalier, Patricia M. Byrne, VP and Associate General Counsel for International Compliance at BAE Systems, Inc., and William B. Jacobson, a partner at Orrick.  See The FCPA Report’s Conducting Effective Anti-Corruption Due Diligence on Third Parties Interview Series: Gwen Romack, Director of Global Anti-Corruption at Hewlett-Packard, Vol. 2, No. 20 (Oct. 9, 2013); Principals at Nardello & Co., Vol. 2, No. 19 (Sep. 26, 2013); and Alice Fisher, Partner at Latham & Watkins, Vol. 2, No. 18 (Sep. 11, 2013).

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  • From Vol. 4 No.9 (Apr. 29, 2015)

    Google, Boeing, Walmart and PwC Leaders Share Strategies for Overcoming Cultural Hurdles in Compliance

    Developing and implementing a compliance program that delivers a consistent message while simultaneously conforming to widely varying regional customs is daunting.  At a panel during the recent Global Ethics Summit, hosted by Ethisphere Institute and Thomson Reuters, compliance leaders from Google, Walmart, Boeing and PwC shared their personal experiences with spreading a compliance message in a global company, confessed their cultural blunders and what they learned from them, and outlined five strategies for overcoming cultural challenges.  See “Representing Foreign Companies in Criminal FCPA Actions: Strategies for Handling the Legal, Practical and Cultural Challenges,” The FCPA Report, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 4 No.6 (Mar. 18, 2015)

    Social Media: Navigating the Next Generation of FCPA Compliance (Part Two of Two)

    Social media can help and hurt compliance efforts – providing the opportunity to spread the compliance message and aid in due diligence efforts, but also potentially exposing the company to harm caused by inappropriate posts.  In this, the second article in our series on the advantages and pitfalls of social media, we discuss best practices for including social media in compliance policies, such as in training, messaging, and monitoring compliance programs; how social media use can help demonstrate good behavior to the government; and how to handle the risks that including social media as part of a compliance program pose.  The first article discussed how companies can use social media to aid with due diligence of third parties and target companies; the limits of using social media for those purposes; government expectations; and how to use social media during internal investigations.  See also “In-House Experts Discuss Social Media Pitfalls and Compliance Opportunities,” The FCPA Report, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 4 No.5 (Mar. 4, 2015)

    Social Media: Navigating the Next Generation of FCPA Compliance (Part One of Two)

    As employees spend more time personally and professionally posting on social media sites, companies urgently need to understand how to restrict such use to mitigate corruption risk while at the same time maximizing the compliance benefits social media can offer.  In this, the first article in our series on the advantages and pitfalls of social media, we discuss how companies can use social media to aid with due diligence of third parties and target companies; the limits of using social media for those purposes; government expectations; and how to use social media during internal investigations.  The second article will discuss: best practices for including social media in compliance policies, such as in training, messaging and monitoring compliance programs; how social media use can help demonstrate good behavior to the government; and how to handle the risks that including social media as part of a compliance program pose.  See “In-House Experts Discuss Social Media Pitfalls and Compliance Opportunities,” The FCPA Report, Vol. 3, No. 15 (Jul. 23, 2014).

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  • From Vol. 4 No.5 (Mar. 4, 2015)

    Customizing Codes of Conduct to Spread the Message of Compliance

    A carefully-drafted code of conduct should be a written manifestation of a company’s compliant tone and the bedrock upon which the company can build an effective set of anti-corruption policies and procedures.  The code should serve as a mission statement, emphasizing the company’s commitment to compliance and ethics, advised Eric Morehead, CCEP, Senior Compliance Counsel with NYSE Governance Services, who spoke at a recent program offered by the Society of Corporate Compliance and Ethics.  It should also provide employees and others with a roadmap for identifying and reporting issues and outline the company’s commitment to responding to problems, he said.  During his presentation, Morehead discussed actions a company should take prior to updating its code, suggested issues companies should consider when drafting a code from scratch and provided insight into recent relevant benchmarking surveys.  See also “Six Steps to Revitalize the Company Compliance Code,” The FCPA Report, Vol. 3, No. 17 (Aug. 20, 2014).

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  • From Vol. 4 No.3 (Feb. 4, 2015)

    Compliance Experts Discuss Setting the “Tone in the Middle”

    In the realm of ethics and compliance, there is a great deal of emphasis on setting an appropriate “tone from the top.”  However, a lot can be lost in translation as that message reaches – or does not reach – the broader employee population.  One way to assure that that message reaches its intended recipients, and achieves its intended effect, is to have managers set an appropriate “tone in the middle.”  A recent program sponsored by the Society of Corporate Compliance and Ethics explained why setting the tone in the middle can help to achieve ethics and compliance goals and discussed strategies for setting that tone, as well as potential impediments to doing so.  The program featured Michael Levin, Senior Director of Compliance at Freddie Mac; and Kirsten E. Liston, an Associate Vice President of SAI Global Limited.  See also “Measuring the Efficacy of Ethics and Compliance Programs,” The FCPA Report, Vol. 3, No. 12 (Jun. 11, 2014). 

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  • From Vol. 4 No.3 (Feb. 4, 2015)

    Using Behavioral Psychology Tools to Leverage Compliance Resources

    How can simple communication tools increase the impact of a compliance program, without significantly increasing the budget?  A recent program offered by the Society of Corporate Compliance and Ethics (SCCE) explored how principles of behavioral psychology can be used to enhance the effectiveness of a compliance program – with a low price tag.  The program was hosted by the Adam Turteltaub of the SCCE and featured Virginia MacSuibhne, Chief Compliance Officer of Roche Molecular Systems, Inc.  See also “Strategies for Justifying Compliance and Ethics Budgets,” The FCPA Report, Vol. 3, No. 24 (Dec. 3, 2014). 

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  • From Vol. 4 No.2 (Jan. 21, 2015)

    Guide to Creating an Effective Compliance-Based Employee Incentive Program (Part Two of Two)

    An employee incentive program that provides effective disciplinary measures for compliance missteps and incentives for positive behavior is one of the “hallmarks of an effective compliance program,” according the DOJ/SEC FCPA Resource Guide.  To assist companies in creating such a program and determining the optimal positive and negative incentives, The FCPA Report is publishing a best-practices guide to developing and implementing an incentive program that works.  This, the second article in the series, discusses the carrots and sticks a company can use to encourage compliant behavior.  The first article in the series discussed the risks and benefits of incentivizing compliance, outlined three steps a company should take before creating an incentive program, and discussed how a company should measure compliance.  See also “When, Why and How Should Companies Discipline Employees for FCPA Violations?,” The FCPA Report, Vol. 1, No. 8 (Sep. 19, 2012). 

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  • From Vol. 4 No.1 (Jan. 7, 2015)

    Guide to Creating an Effective Compliance-Based Employee Incentive Program (Part One of Two)

    Companies with established and nascent FCPA programs alike are looking for ways to further enhance a compliant culture for their employees.  The creation of an effective compliance-based employee incentive program that both encourages compliant behavior and demonstrates the company’s compliance commitment is a “cutting edge issue” with which more and more companies are grappling, Lucinda Low, a partner at Steptoe and Johnson, told The FCPA Report.  To assist companies as they consider and develop such a program, The FCPA Report is publishing a best-practices guide to creating and implementing an efficient and effective incentive program.  In this, the first part of the guide, we discuss the risks and benefits of incentivizing compliance, outline three steps a company should take before creating an incentive program, and discuss how a company should measure compliance.  The second article in the series will discuss how companies can review the compliance-related activities of its senior and middle management and will provide suggestions for carrots and sticks a company can use to encourage compliant behavior.  See also “When, Why and How Should Companies Discipline Employees for FCPA Violations?,” The FCPA Report, Vol. 1, No. 8 (Sep. 19, 2012).

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  • From Vol. 3 No.24 (Dec. 3, 2014)

    Strategies for Justifying Compliance and Ethics Budgets

    Functions that do not directly impact the bottom line may be neglected when a corporation plans its budget.  Compliance and ethics in particular can be seen as a necessary evil, rather than as an integral part of a successful business.  A recent presentation at the 2014 Compliance & Ethics Institute, sponsored by the Society of Corporate Compliance and Ethics, explored how a compliance and ethics department can demonstrate its value to an organization and make it easier to secure sufficient funds to operate effectively.  The program featured Julie K. Moriarty, General Manager, Training and Communications Strategy, and Jimmy Lin, Vice President of Product & Corporate Development at governance, risk and compliance consulting firm The Network, Inc.  See also “CEB Analyzes Key Compliance and Ethics Data,” The FCPA Report, Vol. 3, No. 20 (Oct. 8, 2014).

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  • From Vol. 3 No.23 (Nov. 19, 2014)

    Management Compliance Committees: Operation and Support (Part Three of Three)

    A management-level compliance committee can address corruption risks, improve relationships between compliance and business personnel and show regulators that the company takes compliance seriously.  But unrealistic plans and failure to follow through can have the opposite effect.  To assist companies in establishing and maintaining effective compliance committees, The FCPA Report is publishing a three-part series on the topic.  This, the third article, advises companies about how to structure their compliance committees.  It includes discussions of who should oversee the committee, advice on how to support the committee, and pointers on committee operations.  In the first article, we weighed the pros and cons of having a committee and discussed what types of companies may benefit from having a compliance committee.  The second article detailed best practices for forming and operating a compliance committee.

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  • From Vol. 3 No.22 (Nov. 5, 2014)

    Management Compliance Committees: Creation and Formation (Part Two of Three)

    Many companies with established compliance programs are turning to management-level compliance committees to enhance their oversight capabilities.  “When carefully designed and crafted, a compliance committee can be a very effective component of a company’s overall compliance program,” Erich Grosz, counsel at Debevoise & Plimpton told The FCPA Report.  What exploratory steps are necessary to create a compliance committee?  Once established, how should the committee function?  This article addresses these questions and more, detailing best practices for forming a compliance committee.  In the first article, The FCPA Report weighed the pros and cons of having a committee and discussed what types of companies may benefit from having a compliance committee.  The third article will discuss best practices for operating a compliance committee.  See also “How to Structure Chief Compliance Officer Reporting Lines to Maximize the Efficacy of Anti-Corruption Compliance (Part One of Three),” The FCPA Report, Vol. 2, No. 22 (Nov. 6, 2013); Part Two of Three, Vol. 2, No. 23 (Nov. 20, 2013); Part Three of Three (Dec. 4, 2013). 

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  • From Vol. 3 No.22 (Nov. 5, 2014)

    Understanding Recent Developments in South Korea to Mitigate Anti-Corruption Risk

    Cozy and often corrupt relationships between government regulators and the private sector remain ubiquitous in South Korea, as do lavish gifts, however, the country has made great strides in fighting corruption.  In a guest post, Liz K. Chung, Han-Kyu Kim and Hee Won (Marina) Moon, attorneys at the Seoul law firm Kim & Chang, discuss the Korean anti-corruption regime and enforcement climate, detail four anti-corruption trends, and provide strategies for dealing with the most significant corruption risks there.  See also “Gibson Dunn Attorneys Take the Pulse of Anti-Corruption Risks in Emerging Markets,” The FCPA Report, Vol. 3, No. 3 (Feb. 5, 2014).

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  • From Vol. 3 No.21 (Oct. 22, 2014)

    Management Compliance Committees: Risks and Benefits (Part One of Three)

    As companies strive to integrate compliance into the fiber of their business cultures, many are turning to compliance committees to enhance their compliance programs.  A compliance committee at the management level can help mitigate corruption risk for companies operating multi-nationally, it can facilitate the relationship between compliance and business personnel and it can demonstrate to regulators that a company is serious about compliance.  But, a compliance committee can also add additional bureaucracy, result in the loss of privilege protections for sensitive information and facilitate enterprise-wide chatter about sensitive issues.  This article weighs the pros and cons and discusses what types of companies may benefit from having a compliance committee.  The second article in this series will discuss the mechanics of forming and operating such a committee; a third article will discuss best practices for operating a compliance committee.  See also “How to Structure Chief Compliance Officer Reporting Lines to Maximize the Efficacy of Anti-Corruption Compliance (Part One of Three),” The FCPA Report, Vol. 2, No. 22 (Nov. 6, 2013), Part Two of Three, Vol. 2, No. 23 (Nov 20, 2013), Part Three of Three (Dec. 4, 2013).

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  • From Vol. 3 No.20 (Oct. 8, 2014)

    The Right Role for Legal in Compliance

    What makes for an effective relationship between the legal department and the compliance department?  Can one individual effectively serve as a company’s general counsel and its chief compliance officer?  If the roles are bifurcated, how should the relationship operate?  At the Society for Corporate Compliance and Ethics’ 2014 Compliance and Ethics Institute, Glenn Ware, a partner at PricewaterhouseCoopers LLP, and Suzanne Rich Folsom, General Counsel and Senior Vice President of United States Steel Corporation, discussed these questions and other nuances of the relationship between a company’s general counsel and its chief compliance officer.  See “PwC Survey Examines the Role of the Compliance Officer,” The FCPA Report, Vol. 3, No. 14 (Jul. 9, 2014).

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  • From Vol. 3 No.19 (Sep. 24, 2014)

    How Can CCOs Demonstrate Compliance Program Effectiveness?

    A chief compliance officer must be able to demonstrate to management and the board that the company’s compliance dollars are providing a solid return on investment.  Meanwhile, if the company becomes embroiled in an investigation, the CCO must also be able to demonstrate to the government that the program is effective.  At the Society of Corporate Compliance and Ethics’ 2014 Compliance and Ethics Institute, Michael Ward, a former Deputy General Counsel and Vice President, Compliance Systems and Investigations for Cisco Systems and former prosecutor, discussed the metrics the CCO should use to measure the effectiveness of a compliance program; strategies for communicating the process; and the results to the relevant audiences.  See also “Measuring the Efficacy of Ethics and Compliance Programs,” The FCPA Report, Vol. 3, No. 12 (Jun. 11, 2014).

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  • From Vol. 3 No.18 (Sep. 10, 2014)

    Compliance Experts from Altria, Noble Energy and HP Share Corruption Investigation Best Practices

    A recent American Bar Association program brought together compliance executives from several public corporations to discuss how to both satisfy the client and mollify the government during an anti-corruption investigation – no easy task.  The panelists, along with moderator Mara V.J. Senn, a partner at Arnold & Porter, shared insights and experiences on preparedness for internal investigations, the role of outside counsel, the calculus of voluntary disclosures and a number of other common issues faced by companies conducting internal investigations.  For more from Senn on internal investigations, see “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2, No. 25 (Dec. 18, 2013); and “Developing and Implementing the Investigation Plan (Part Two of Two),” The FCPA Report, Vol. 3, No. 1 (Jan. 8, 2014).  

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  • From Vol. 3 No.18 (Sep. 10, 2014)

    Mitigating Bribery Risks Using Financial Controls, Risk Assessments and Leveraging Internal Resources

    A recent program presented by The Knowledge Group brought together experts from investigative and consulting firm Kroll, law firm Alston & Bird and defense company Leidos to discuss best practices in mitigating FCPA risk.  The panelists analyzed the current enforcement climate and shared how they have structured and implemented systems at their companies for financial controls, risk assessments and the vetting of third parties, including how they leverage existing resources to enhance their compliance programs.  They also highlighted compliance lessons from recent Kroll global fraud surveys.  See also “Kroll Managing Director Extracts Practical Lessons from 2013 Anti-Bribery and Corruption Benchmarking Survey,” The FCPA Report, Vol. 2, No. 13 (Jun. 26, 2013).

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  • From Vol. 3 No.17 (Aug. 20, 2014)

    Six Steps to Revitalize the Company Compliance Code

    A compliance program begins with the written code the company distributes to employees.  The code, the foundation of the compliance program, needs to be accessible, educational and of-the-moment.  In a recent panel at Practising Law Institute’s Corporate Compliance and Ethics Institute, compliance experts shared six strategies for revising company codes.  The panel included Kaplan & Walker’s Rebecca Walker; Janice Innis-Thompson, Senior Managing Director and Chief Compliance and Ethics Officer at TIAA-CREF; and Edward Petry, Vice President of Ethical Leadership Group, the Advisory Services division of Navex Global.  See also “A Comparison and Examination of DOJ Compliance Program Requirements in FCPA Settlement Agreements,” The FCPA Report, Vol. 2, No. 19 (Sep. 26, 2013).

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  • From Vol. 3 No.17 (Aug. 20, 2014)

    Compliance Experts from AT&T and Southern Co. Share Anti-Corruption Auditing and Assessment Best Practices

    Key compliance personnel at two major public companies recently shared their insights on the best ways to monitor and assess compliance programs.  At a panel at PLI's 2014 Corporate Compliance and Ethics Institute, James R. Turner, compliance director at Alabama Power Company, a subsidiary of Southern Company, and Kathy Rehmer, Vice President of Corporate Compliance at AT&T, discussed how their companies perform audits and routine testing of their compliance programs. See also The FCPA Report’s three-part series, “Best Practices for Reviewing Anti-Corruption Compliance Programs”: Government Expectations, Scheduling and Staffing; Challenges, Preparation and Risk Evaluation; and Implementation, Remediation and Documentation.

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  • From Vol. 3 No.14 (Jul. 9, 2014)

    A Guide to Anti-Corruption Representations in Third-Party Contracts: Clauses for High-Risk Situations and Enforcement Strategies (Part Two of Two)

    Doing business with third parties – whose actions may subject companies to FCPA liability – remains one of the most challenging aspects of anti-corruption compliance.  An effective way to mitigate the corruption risk posed by third parties is to include FCPA reps and warranties in third-party contracts.  This, the second article in our series examining the optimal ways to incorporate those clauses, suggests specific reps and warranties for special situations and discusses techniques for enforcing the rights associated with the reps and warranties.  The first article described nine basic reps and warranties to include in third-party contracts.  See also “Mitigating FCPA Risks Associated with Incentive Awards to Third Parties,” The FCPA Report, Vol. 3, No. 12 (Jun. 11, 2014).

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  • From Vol. 3 No.14 (Jul. 9, 2014)

    PwC Survey Examines the Role of the Compliance Officer

    In today’s rapidly changing business environment, continually benchmarking and assessing compliance procedures is integral to maintaining a robust program.  PricewaterhouseCooper’s 2014 State of Compliance Survey Report depicts the state of compliance programs and provides compliance insights, including three ways CCOs can improve their relationships with the business units.  The survey also reveals how companies are using social media, how much they are spending on compliance, how they are structuring reporting lines and more.  See also “Five Tools Every Chief Compliance Officer Needs for Effective FCPA Compliance: Title, Authority, Access, Budget and Culture (Part One of Two),” The FCPA Report, Vol. 2, No. 7 (Apr. 3, 2013); Part Two of Two, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 3 No.13 (Jun. 25, 2014)

    A Guide to Anti-Corruption Representations in Third-Party Contracts: Nine Clauses to Include (Part One of Two)

    Liability for third-party activities remains one of the most challenging FCPA risks.  “A company needs to have mechanisms in place to ensure that its third parties are complying with the law and not creating liability for the company,” Matteson Ellis, special counsel at Miller & Chevalier, said.  One of the most effective ways to mitigate this risk is by including FCPA reps and warranties in third-party contracts.  This, the first article in our series examining the optimal ways to incorporate those clauses, discusses: the types of relationships that require reps and warranties; the risks and benefits of including such clauses in third-party contracts; and nine examples of the types of reps and warranties companies may wish to include in their contracts.  The second article will discuss advanced reps and warranties for special situations and will suggest techniques for enforcing the rights associated with the reps and warranties.  See also our four-part series on Audit Committee Responsibilities Before, During and After an Anti-Corruption Investigation: “Five Steps to Take Before the Investigation Begins (Part One of Four),” (Feb 19, 2014); “Determining When and How to Proceed (Part Two of Four),” (Mar. 5, 2014); “Retaining Counsel, Gathering Information and Documenting the Investigation (Part Three of Four), (Mar. 19, 2014); and “Remediating and Disclosing the Investigation to the Government and the Public (Part Four of Four), (Apr. 4, 2014).

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  • From Vol. 3 No.12 (Jun. 11, 2014)

    Measuring the Efficacy of Ethics and Compliance Programs

    What exactly makes one anti-corruption compliance program effective and another, that appears to have the same elements, fail to detect and prevent violations?  “It’s all about the culture,” Wayne Brody, a senior advisor at LRN, an ethics and culture advisory firm, told The FCPA Report.  That culture is not intangible, Brody said – effective programs share certain characteristics.  In its 2014 “Ethics and Compliance Program Effectiveness Report,” LRN detailed the results of its extensive research, extracting the factors most commonly associated with an effective compliance program by using its proprietary Program Effectiveness Index.  See “Anonymous Polling, Focus Groups and ‘Organizational Justice’ Help Companies Avoid FCPA Violations While Growing Revenue,” The FCPA Report, Vol. 1, No. 9 (Oct. 3, 2012).

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  • From Vol. 3 No.12 (Jun. 11, 2014)

    Doing Business in India: Avoiding Corruption Risks and Monitoring Compliance Programs

    India presents companies not only with tremendous business opportunities but also an entrenched culture of corruption at virtually every government “touchpoint.”  Strafford Publications recently hosted a panel discussion highlighting some of the unique challenges facing companies trying to navigate India’s notorious bureaucracy.  The discussion examined FCPA cases with Indian connections as well as the anti-corruption enforcement climate in India and offered guidance on third-party due diligence and on monitoring the effectiveness of an anti-corruption compliance program.  The panel featured Jay Holtmeier, a partner at Wilmer Hale; Elizabeth D. Keating, Global Compliance Counsel – Investigations of Johnson Controls, Inc.; and Michael Stavridis, a partner at Ernst & Young.  See also “Gibson Dunn Attorneys Take the Pulse of Anti-Corruption Risks in Emerging Markets,” The FCPA Report, Vol. 3, No. 3 (Feb. 5, 2014).

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  • From Vol. 3 No.10 (May 14, 2014)

    Walmart’s Global CCO Discusses the Company’s Restructured Anti-Corruption Compliance Program

    The high-profile bribery allegations against Wal-Mart Stores (Walmart) put the FCPA in a global spotlight, prompting board members across the country to ask counsel about corruption risks.  The company itself, a global retail behemoth, has been deeply embroiled in a wide-ranging internal investigation since its 2011 SEC disclosure of possible FCPA violations, followed by the 2012 New York Times report that Walmart had paid over $24 million in bribes in Mexico.  The investigation has cost the company upwards of $500 million so far.  Walmart hired Jay Jorgensen as Senior Vice President and Global Chief Compliance Officer to lead the compliance efforts in 2012.  Jorgensen explained the details of Walmart’s new compliance program in a recent interview at the Dow Jones Global Compliance Symposium and discussed the lessons Walmart learned and the challenges that large multi-national companies face in constructing effective compliance programs.  See “A Guide to Disclosing Corruption Investigations in SEC Filings (Part Three of Four),” The FCPA Report, Vol. 2, No. 11 (May 29, 2013) (tracing Walmart’s disclosures).

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  • From Vol. 3 No.7 (Apr. 2, 2014)

    Top DOJ and SEC Officials Discuss FCPA Enforcement Priorities and Mechanics

    At this year’s Momentum Global Anti-Corruption Congress, Charles Cain, Deputy Chief of the SEC’s FCPA Unit and Jeffrey H. Knox, Chief of the Fraud Section of the DOJ, Criminal Division, lifted the veil on the government’s thinking in FCPA investigations.  The discussion, led by David H. Resnicoff, a member at Miller & Chevalier, covered a range of topics on the minds of FCPA practitioners and compliance officers, including the timing of voluntary self-disclosures, the kinds of cases the government may decline to pursue, effective cooperation with FCPA investigations, the role of audit committees in compliance strategies and the programmatic success of the FCPA Guidance released in 2012.  See “When Should a Company Voluntarily Disclose an FCPA Investigation?,” The FCPA Report, Vol. 3, No. 4 (Feb. 19, 2014); and “DOJ and SEC Officials Provide Candid Insight into the Recently Issued FCPA Guidance,” The FCPA Report, Vol. 1, No. 13 (Nov. 28, 2012).

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  • From Vol. 3 No.4 (Feb. 19, 2014)

    Six Things Every Business Lawyer Needs to Know About the FCPA

    Whether you’re in-house counsel or a transactional lawyer at a law firm, anti-corruption is something that should very much be on your radar – the government is aggressive, the fines can be astronomical and people do go to jail.  That was the message from William H. Devaney, partner at Venable and moderator of the American Bar Association’s recent webinar, “What Every Business Lawyer Should Know About the FCPA.”  The panel discussion provided business lawyers with information and advice about staying compliant in this anti-corruption enforcement climate.  The panelists were Lynn A. Neils, a partner at Covington & Burling; Carlos Ortiz, a partner at Edwards Wildman; Brian T. Sumner, in-house counsel at Alcoa; and Douglas Tween, a partner at Baker McKenzie.  See also “How to Conduct an Anti-Corruption Investigation: Ten Factors to Consider at the Outset (Part One of Two),” The FCPA Report, Vol. 2. No. 25 (Dec. 18, 2013); “Developing and Implementing the Investigation Plan (Part Two of Two),” Vol. 3, No. 1 (Jan. 8, 2014).

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  • From Vol. 3 No.1 (Jan. 8, 2014)

    A Perspective from the FCPA Defense Bar on Brockmeyer and Duross’ “Year In Review”: Interview with Danforth Newcomb, of Shearman & Sterling

    Companies operating internationally should pay close attention when government regulators candidly discuss the FCPA.  But how should a company interpret the government’s comments?  How much weight should be given to any individual regulator’s predictions of trends?  At ACI’s recent International Conference on the Foreign Corrupt Practices Act in Washington, D.C., Charles Duross, Deputy Chief of the Fraud Section of the Criminal Division of the DOJ, and Kara Brockmeyer, Chief of the FCPA Unit of the Division of Enforcement of the SEC, provided insight into the specific elements of FCPA enforcement that matter to leading regulators, as detailed in The FCPA Report’s two-part series.  See Part One of Two, Vol. 2, No. 24 (Dec. 4, 2013); Part Two of Two, Vol. 2, No. 25 (Dec. 18, 2012).  In an interview with The FCPA Report following that panel, Danforth Newcomb, a partner at Shearman & Sterling LLP and recognized expert on the FCPA, responded to the most pressing issues raised by Duross and Brockmeyer.  Newcomb’s no-nonsense approach to FCPA compliance and thoughtful dissection of the regulators’ comments enable in-house counsel, compliance officers and others to translate the regulators’ insights directly into actionable policies and procedures.

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  • From Vol. 2 No.21 (Oct. 23, 2013)

    K&L Gates Panel Reviews Anti-Corruption Enforcement in the U.S., the U.K., China, Australia, Latin America, Africa, Southeast Asia and Russia

    With the spate of new anti-corruption laws around the globe, and the evolution of laws already on the books, “it is critical for a company to have on-the-ground information and local support” in structuring an effective anti-bribery and anti-corruption (ABAC) program and responding to regulatory action in all of the regions in which it operates.  So said Dick Thornburgh, former Attorney General of the United States and former Governor of Pennsylvania, introducing a recent webinar presented by K&L Gates LLP, where Thornburgh is now of counsel.  The K&L Gates speakers who followed Thornburgh shared their direct local experiences and examined the state of the ABAC laws in their regions of speciality.

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  • From Vol. 2 No.18 (Sep. 11, 2013)

    Best Practices for Reviewing Anti-Corruption Compliance Programs: Implementation, Remediation and Documentation (Part Three of Three)

    In an effort to provide concrete, practical advice on the critical but ambiguous task of reviewing anti-corruption compliance programs, The FCPA Report is publishing a series of three articles on the topic.  This, the third and final article in the series, provides four strategies for conducting the actual review; discusses three steps a company should take post-review; outlines issues surrounding documentation of the review; and examines how FCPA settlement agreements, including monitorships and self-reporting requirements, affect reviews.  The first article in the series discussed the importance of regular anti-corruption compliance reviews; detailed the government’s expectations for reviews; outlined how to create an efficient and effective compliance review schedule; and specified how companies should staff their compliance reviews.  The second installment discussed the chief obstacles companies face when conducting a review; provided strategies for creating management buy-in; described four steps a company should take when preparing for a review; and outlined what risk areas the review should address.

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  • From Vol. 2 No.17 (Aug. 21, 2013)

    Best Practices for Reviewing Anti-Corruption Compliance Programs: Challenges, Preparation and Risk Evaluation (Part Two of Three)

    As the recent joint DOJ/SEC FCPA Resource Guide makes clear, for a company to earn meaningful credit with the government in an anti-corruption investigation, its compliance program must not only be robust, but also periodically reviewed and improved.  However, neither the Guide nor any other government resource provides specific direction on the appropriate frequency or depth of reviews.  In lieu of specific authority, companies typically turn to best practices and industry norms when deciding how frequently to review and update their compliance programs.  Best practices, though, can be hard to discern and difficult to apply.  Recognizing the challenge and importance of actionable information on this topic, The FCPA Report is publishing a series of three articles on best practices for reviewing anti-corruption compliance programs.  This article, the second in the series, discusses the chief obstacles companies face when conducting a review; provides strategies for creating management buy-in; describes four steps a company should take when preparing for a review; and outlines what risk areas the review should address.  The first article in the series discussed the importance of regular anti-corruption compliance reviews; detailed the government’s expectations for reviews; outlined how to create an efficient and effective compliance review schedule; and specified how companies should staff their compliance reviews.  See “Best Practices for Reviewing Anti-Corruption Compliance Programs: Government Expectations, Scheduling and Staffing (Part One of Three),” The FCPA Report, Vol. 2, No. 16 (Aug. 7, 2013).  The third and final article in the series will provide strategies for conducting the actual review; discuss what a company should do post-review; outline issues surrounding documentation of the review; and examine how FCPA settlement agreements affect reviews. 

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  • From Vol. 2 No.16 (Aug. 7, 2013)

    Best Practices for Reviewing Anti-Corruption Compliance Programs: Government Expectations, Scheduling and Staffing (Part One of Three)

    The recent joint DOJ/SEC Guidance reflects the government’s view that, in order to be effective, an FCPA compliance program must be periodically reviewed and improved.  However, neither the Guidance nor any other authority specifies how frequently such reviews should be conducted, how expansive such reviews should be or what steps companies should take to improve discovered shortcomings.  In the absence of concrete and authoritative direction on this topic, how should companies approach the ambiguous but critical task of reviewing and improving their compliance programs?  This article is the first in a three-part series addressing this question.  Specifically, this article discusses the importance of regular anti-corruption compliance reviews; details the government’s expectations about reviews; outlines how to create an efficient and effective compliance review schedule; and specifies how companies should staff their compliance reviews.  The second installment will discuss the biggest challenges companies face when conducting a review; what a company should consider when preparing for a review; how a company should prepare to perform a review; and what areas the review should address.  The third and final article in the series will provide strategies for conducting the actual review; discuss what a company should do post-review; outline issues surrounding documentation of the review; and examine how FCPA settlement agreements affect reviews.  See also “Insight from Top Companies and Practitioners on How They Are Addressing Current Anti-Corruption Issues, from Self-Reporting to Risk Assessments to Training,” The FCPA Report, Vol. 2, No. 10 (May 15, 2013).

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  • From Vol. 2 No.15 (Jul. 24, 2013)

    How to Demonstrate the Business Value of Anti-Corruption Compliance and Create Management Buy-In

    One of the major challenges faced by in-house compliance personnel and compliance advisors is how to encourage management to buy into the company compliance program – before the company gets into trouble.  Many compliance officers report that they struggle with convincing their colleagues and business partners that anti-corruption compliance is not only necessary for the company to avoid liability, but can also benefit the bottom line.  At a recent conference hosted by the American Conference Institute, Jim Portnoy, Chief Counsel, Corporate and Government Affairs at Kraft Foods, and Stephen Fishbein, partner at Shearman & Sterling LLP, shared their insights on how to get and keep management interested and engaged in anti-corruption compliance.  See also  “Five Tools Every Chief Compliance Officer Needs for Effective FCPA Compliance: Title, Authority, Access, Budget and Culture (Part Two of Two),” The FCPA Report, Vol. 2, No. 8 (Apr. 17, 2013).

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  • From Vol. 2 No.13 (Jun. 26, 2013)

    U.S. Attorney Loretta Lynch Discusses Morgan Stanley, Ralph Lauren and the Government’s View on Compliance Programs, Self-Reporting, Monitors and More

    Every year, multi-national companies spend great sums on anti-corruption compliance.  By building robust compliance programs, companies seek to decrease corruption and also to limit company liability if bribery occurs.  However, many companies struggle with not only creating and maintaining an effective compliance program, but also communicating that program to the government if there is a problem.  At a recent conference hosted by the Society of Corporate Compliance and Ethics, Loretta Lynch, U.S. Attorney for the Eastern District of New York, shared a prosecutor’s perspective on corporate compliance programs.  Lynch also provided insight into the government’s position on employee discipline, training, self-reporting and corporate monitorship, along with specific discussions of the Ralph Lauren and Morgan Stanley cases.  See also “Davis Polk Lawyers and Morgan Stanley Compliance Director Discuss DOJ’s Decision Not to Prosecute Morgan Stanley for FCPA Violations,” The FCPA Report, Vol. 1, No. 10 (Oct. 17, 2012); “SEC’s NPA with Ralph Lauren, the Agency’s First Ever, Modifies the M&A Due Diligence Requirements Traditionally Included in DOJ DPAs, and Outlines Specific Actions That Constitute Effective Self-Reporting,” The FCPA Report, Vol. 2, No. 9 (May 1, 2013).

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  • From Vol. 2 No.12 (Jun. 12, 2013)

    Compliance Lessons from Total S.A.’s $398 Million FCPA Settlement: Foreign Cooperation, Compliance Monitors, Broad Jurisdiction and the Effect of Reluctant Cooperation with the DOJ and SEC

    The DOJ and the SEC recently announced significant FCPA settlements with Total S.A., a French oil and gas company.  Total faces charges that, starting in 1995, it used third parties to make illegal payments to a government official in Iran in order to obtain valuable oil and gas concessions.  The nearly $400 million civil and criminal settlement may not spell the end of Total’s troubles, however, as French authorities continue to investigate.  Total’s vulnerability in multiple jurisdictions highlights the increasing international cooperation among anti-corruption regimes and the possibility of carbon copy prosecutions.  The settlement agreement also demonstrates the importance of cooperation.  Experts say that Total’s fine, which does not include a reduction from the Sentencing Guidelines, as well as the long investigation that preceded the settlement, may stem from Total’s reluctant cooperation with authorities.  Total was also required to retain an external compliance monitor – a costly proposition many thought was becoming a rarity.   See “How to Find a Business-Minded Compliance Monitor and Minimize Reporting Requirements When Negotiating an FCPA Settlement (Part One of Three),” The FCPA Report, Vol. 2, No. 4 (Feb. 20, 2013); Part Two of Three, Vol. 2, No. 5 (Mar. 6, 2013); Part Three of Three, Vol. 2, No. 6 (Mar. 20, 2013).  This article analyzes these and other key compliance takeaways from the Total settlement, with input from practitioners.  This article also details the bribery scheme and the terms of the settlement, including the compliance program enhancements required by the DOJ.

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  • From Vol. 2 No.8 (Apr. 17, 2013)

    Parker Drilling DPA Provides a Checklist of Policies and Procedures That the DOJ Expects to See in an FCPA Compliance Program

    Parker Drilling Company, a Houston-based, publicly traded drilling company, has resolved civil and criminal FCPA charges pursuant to a Deferred Prosecution Agreement (DPA) in which the government emphasizes specific elements of compliance programs, policies and procedures, and demonstrates its increased reliance on self-reporting mechanisms in lieu of external monitors.  See “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  The charges resulted from Parker Drilling’s authorization of payments to an intermediary that Parker Drilling knew would be used to corruptly influence the decisions of a Nigerian government panel reviewing the company’s adherence to Nigerian customs and tax laws.  In addition to discussing the facts and circumstances relevant to the granting of the DPA, and providing details of the Nigerian bribery scheme, this article includes a detailed discussion of the specific ways in which the DPA requires Parker Drilling to enhance its FCPA compliance program.  The various required enhancements serve as a checklist of what the DOJ expects to see in an FCPA compliance program – and thus serves as an important benchmark against which companies can compare their own compliance efforts.

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  • From Vol. 1 No.14 (Dec. 12, 2012)

    Integral Elements of Proactive and Pre-Merger Anti-Corruption Forensic Audits

    The last five years of FCPA enforcement have increased the need for comprehensive and effective compliance programs and controls designed to detect, deter and remediate instances of bribery and corruption.  A hidden jewel for some organizations is the use of the forensic audit function to help achieve these objectives.  A properly staffed and well-trained forensic audit team can provide a positive return on investment if used appropriately to satisfy the new imperative of a well-functioning compliance program.  Conducted competently, forensic audits can go a long way toward preventing violations, detecting violations (including in the merger and acquisition process), aiding the investigative and remedial process, substantiating the existence, amounts and recipients of payments and ultimately helping a company earn credit when negotiating with the government or self-reporting discovered violations.  See “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  In a guest article, Paul E. Zikmund, Global Director, Ethics and Compliance, at Bunge Limited, discusses the core elements of proactive FCPA audits, as well as the key mechanics of pre-merger anti-corruption forensic audits.

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  • From Vol. 1 No.13 (Nov. 28, 2012)

    Comprehensive FCPA Guidance Provides a Roadmap for Companies to Reevaluate and Revise Their Compliance Policies

    On November 14, 2012, the DOJ and SEC jointly published “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (Guidance), their long-awaited and highly anticipated guidance on the FCPA.  The Guidance did not pronounce any new defenses or radically reinterpret any of the FCPA’s provisions, but it does provide useful insights into the government’s enforcement considerations and should serve as a roadmap for companies to reevaluate and revise their FCPA compliance policies.  In a guest article, Paul E. Pelletier and Aaron M. Tidman, member and associate, respectively, at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., analyze the guidance and outline how practitioners may use the guidance to update their compliance policies and procedures.

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  • From Vol. 1 No.10 (Oct. 17, 2012)

    Davis Polk Lawyers and Morgan Stanley Compliance Director Discuss DOJ’s Decision Not to Prosecute Morgan Stanley for FCPA Violations

    In April 2012, Morgan Stanley Managing Director Garth Peterson pleaded guilty to one count of conspiring to circumvent Morgan Stanley’s internal controls in violation of the FCPA.  The plea was the result of his efforts to enrich himself and the Chinese official who facilitated a Shanghai real estate deal with his Morgan Stanley unit.  Notably, the DOJ indicated that it was declining to bring charges against Morgan Stanley as a result of Peterson’s misconduct.  In a recent webcast, Morgan Stanley’s anti-corruption chief, Raja Chatterjee, and its outside counsel from Davis Polk & Wardwell LLP, discussed the “unprecedented and important” decision not to prosecute Morgan Stanley for Peterson’s FCPA violations.  They believe that, by declining to prosecute Morgan Stanley, the DOJ has made a statement that “compliance matters” and that an effective compliance program can be a mitigating factor in an FCPA investigation.  This article summarizes the webcast with a view to identifying the lessons that can be learned from the Morgan Stanley matter.  See also “Civil and Criminal Enforcement Actions Against Former Morgan Stanley Employee Highlight the Relevance of the FCPA for Private Fund Managers,” The Hedge Fund Law Report, Vol. 5, No. 19 (May 10, 2012).

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  • From Vol. 1 No.9 (Oct. 3, 2012)

    Anti-Corruption Compliance in the Age of Global Enforcement

    A global wave of anti-corruption regulation has been steadily gaining momentum since it began in the 1990s.  International organizations, such as the Organisation for Economic Co-operation and Development, have set their sights on fighting bribery and have successfully pressured member states to pass tighter laws.  Cross-border enforcement cooperation is also on the rise.  This heightened scrutiny has highlighted the importance for corporations to have globally effective anti-corruption compliance programs.  Successful programs help reduce the risk of violations and may also engender a more favorable regulatory response when issues arise.  In a guest article, Richard Sibery, the Leader for Fraud and Investigations with Ernst & Young LLP’s Fraud Investigation & Dispute Services (FIDS) practice, and Virginia Adams, a Senior Manager in E&Y’s FIDS practice, discuss the three basic building blocks of a best-of-breed compliance program.  For additional insight from Sibery, see “Training, Certification, Due Diligence, Customs Clearance and Facilitation Payments: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice,” The FCPA Report, Vol. 1, No. 1 (Jun. 6, 2012); and “Anti-Corruption Audits, Risk Assessments, Transaction Testing and the Dangers of Petty Cash: An Interview with Leaders of Ernst & Young’s Fraud Investigation & Dispute Services Practice,” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).

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  • From Vol. 1 No.9 (Oct. 3, 2012)

    Tyco Settles SEC and DOJ Charges Relating to FCPA Violations, Agrees to Pay Over $26 Million in Penalties, and Subsidiary Pleads Guilty to Criminal FCPA Charge

    In connection with a 2006 settlement with the SEC over alleged FCPA and other violations, Tyco International Ltd. (Tyco) pursued a comprehensive compliance review of all of its operating entities – 454 companies in 50 countries.  That review disclosed additional FCPA violations, or continuing benefits from prior violations, involving more than a dozen Tyco direct and indirect subsidiaries.  Tyco reported those findings to the SEC and DOJ, which began new investigations into Tyco’s operations.  On September 24, 2012, the DOJ and SEC announced that Tyco has now reached a comprehensive settlement of those new matters, consisting of three separate elements: A settled civil enforcement action by the SEC against Tyco, a non-prosecution agreement between the DOJ and Tyco and the entry of a guilty plea to a criminal violation of the FCPA by a Tyco subsidiary.  This article provides a summary of the various investigations and charges and the details of the three settlements.

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  • From Vol. 1 No.6 (Aug. 22, 2012)

    Compliance Implications of the Current Enforcement Climate: An Interview with Mike Koehler, the FCPA Professor (Part One of Two)

    The FCPA Report recently interviewed Mike Koehler, Assistant Professor at Southern Illinois University School of Law and author of the popular blog the FCPA Professor.  He has testified before Congress and written extensively about FCPA issues.  Professor Koehler previously was Assistant Professor of Business Law in the College of Business at Butler University, and before that was an attorney at Foley & Lardner LLP, where he conducted FCPA investigations on behalf of companies, negotiated resolutions to FCPA enforcement actions with government enforcement agencies and advised clients on FCPA compliance and risk assessment.  In the first part of our interview, which is included in this issue of The FCPA Report, Professor Koehler spoke about the long tail on FCPA violations and the “gray cloud” that hangs over companies once they self-report, and he questioned whether companies should self-report at all.  See also “When and How Should Companies Self-Report FCPA Violations? (Part Two of Two),” The FCPA Report, Vol. 1, No. 2 (Jun. 20, 2012).  He also shared compliance advice in light of recent enforcement trends relating to facilitation payments, the “obtain or retain business” element of the statute and the definition of foreign officials.  In addition, Professor Koehler discussed compliance lessons arising out of the unique way the FCPA is enforced and the relative lack of judicial scrutiny of the statute.

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  • From Vol. 1 No.3 (Jul. 11, 2012)

    Lessons Learned on Crafting FCPA Compliance Programs from the Largest FCPA Case in History

    With the recent criminal and civil charges brought against former Siemens executives, a new chapter in the Siemens case has begun.  Siemens paid a record-setting fine to the U.S. government of $800 million in 2008 and over $800 million to German authorities, and conducted an internal investigation with a $1 billion price tag.  What did we learn – and what are we still learning – from this groundbreaking case?  In a guest article, William P. Olsen and Anne M. Eberhardt, Principal and Senior Manager, respectively, in Grant Thornton’s Forensic and Valuation Services practice, review the history of a company that revolutionized the world’s communications and electrical industries, follow its move to a business model that was almost entirely based on corruption, and analyze its landmark settlement with U.S. officials and the pending individual indictments, addressing the key compliance precedents the Siemens matter has set.

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  • From Vol. 1 No.3 (Jul. 11, 2012)

    Orthofix International Agrees to Pay $7.5 Million to the SEC and DOJ to Settle Charges that It Bribed Mexican Officials with “Chocolates”

    In a July 10, 2012 complaint, the SEC charged a Texas-based medical device company, Orthofix International N.V., with engaging in a seven-year bribery scheme involving its Mexican subsidiary Promeca S.A. de C.V. (Promeca).  The SEC alleges that Promeca employees referred to the bribe payments, which totaled over $300,000, as “chocolates.”

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