31 Days to a More Effective Compliance Program

After you complete your risk assessment, you must then translate it into a risk profile. If your estimate of where your bribery risk is greatest is wrong, it will be an effort to address it. As Ben Locwin explained in his  BioProcess International article, entitled “Quality Risk Assessment and Management Strategies for Biopharmaceutical Companies”: Once we have assessed risks and determined a proc...

One cannot really say enough about risk assessments in the context of anti-corruption programs. This is because every corporate compliance program should be based upon a risk assessment, to understand your organization’s business from the commercial perspective, how your organization has identified, assessed, and defined its risk profile and, finally, the degree to which the program devotes approp...

Companies have finally come to realize that institutional justice and fairness are perhaps the most basic tenet of any successful workplace. If employees believe they will be treated fairly, it will engender a level of trust that can work to not simply motivate employees but lead to a more successful workplace and, at the end of the day, a more profitable company. This encompasses the entire lifec...

One of the areas that many companies have not paid as much attention to in their compliance programs is compensation. However, the DOJ and SEC have long made clear that they view monetary structure for compensation, rewarding those employees who do business in compliance with their employer’s compliance program, as one of the ways to reinforce the compliance program and the message of compliance....

One of the key goals of any compliance program is to train employees in awareness and understanding of the FCPA; your specific company compliance program; and to create and foster a culture of compliance. While it seems axiomatic that compliance training is a mainstay of any best practices compliance program, the conversation around training has evolved over the years. Beginning in the fall of 201...

What is the message of compliance inside of a corporation and how it is distributed? In a compliance program, the largest portion of your consumers/customers are your employees. Social media presents some excellent mechanisms to communicate the message of compliance going forward. Many of the applications that we use in our personal communications are free or available at very low cost. Why not ta...

A 360-degree view of compliance is an effort to incorporate your compliance identity into a holistic approach so that compliance is in touch with and visible to your employees at all times. It is about creating a distinctive brand philosophy of compliance which is centered on your consumers. In other words, it helps a compliance practitioner to anticipate all the aspects of your employees needs ar...

What are internal controls? The best definition I have come across is from Jonathan Marks who defined internal controls as: An internal control is an action or process of interlocking activities designed to support the policies and procedures detailing the specific preventative, detective, corrective, directive and corroborative actions required to achieve the desired process outcomes or the objec...

There are numerous reasons to put some serious work into your compliance policies and procedures. They are certainly a first line of defense when the government comes knocking. The 2020 Update made clear that “Any well-designed compliance program entails policies and procedures that give both content and effect to ethical norms and that address and aim to reduce risks identified by the company as...

What is the value of having a Code of Conduct? In its early days, a Code of Conduct tended to be lawyer-written and lawyer-driven to wave in regulator’s face during an enforcement action as proof of ethical overall behavior. Is such a legalistic code effective? Is a Code of Conduct more than simply your company’s internal law? What should be the goal in the creation of your company’s Code of Condu...

The most significant development for Boards and compliance in 2021 came from the Delaware courts, which have been expanding the civil law obligations of Boards through a series of court decisions involving the expansion of the Caremark Doctrine for a couple of years. These developments began with the Marchand decision which required Boards to manage the risks their organizations face. Next was the...

Mike Volkov has said, “Even when a company does all the right things at the senior management level, the real issue is whether or not that culture has embedded itself in middle and lower management. A company’s culture is reflected in the values and beliefs that exist throughout the company.” To fully operationalize your compliance program, you must articulate the message of ethical values and doi...

DAG Lisa Monaco’s speech on FCPA enforcement and compliance laid out the very basics; that the key to every company is culture. She stated, “corporate culture matters. A corporate culture that fails to hold individuals accountable, or fails to invest in compliance — or worse, that thumbs its nose at compliance — leads to bad results.” From the enforcement perspective, the DOJ will be assessing com...

Continuous monitoring and continuous improvement are two of the most important phrases for any compliance program. These twin concepts were perhaps the biggest modifications in the 2020 Update to the Evaluation of Corporate Compliance Programs. In 2021, all companies’ risks changed as we moved from Working From Home to Return To Office and now a hybrid work model. These changes in our basic work l...

Welcome to a special podcast series on the Compliance Podcast Network, 31 Days to a More Effective Compliance Program. Over these 31 days series in January 2021, I will post a key part a best practices compliance program each day. By the end of January, you will have enough information to create, design or enhancement a compliance program. Each podcast will be short, at 6-8 minutes with three key...

The 2020 Update re-emphasized the need for both performing a root cause analysis but equally importantly using it to remediate your compliance program. It stated, “a hallmark of a compliance program that is working effectively in practice is the extent to which a company is able to conduct a thoughtful root cause analysis of misconduct and timely and appropriately remediate to address the root cau...

One of the biggest changes in the 2020 FCPA Resource Guide is the addition of a new Hallmark, entitled “Investigation, Analysis, and Remediation of Misconduct”, which reads in full: The truest measure of an effective compliance program is how it responds to misconduct. Accordingly, for a compliance program to be truly effective, it should have a well-functioning and appropriately funded mechanism...

Your company has just made its largest acquisition ever and your CEO says they want you to have a compliance post-acquisition integration plan on their desk in one week. Where do you begin? A good place to start would be the 2020 FCPA Resource Guide language: Pre-acquisition due diligence, however, is normally only a portion of the compliance process for mergers and acquisitions. DOJ and SEC evalu...

A company that does not perform adequate due diligence prior to a merger or acquisition may face both legal and business risks. Perhaps most commonly, inadequate due diligence can allow a course of bribery to continue - with all the attendant harms to a business’s profitability and reputation, as well as potential civil and criminal liability. While most compliance practitioners have been long awa...

One of the areas articulated in the 2020 Update was around payments and payroll. For the both the compliance professional and the corporate payroll function, there is a significant role to play in the operationalization of a corporate compliance program. The 2020 Update was replete with references to payment and its critical nature to any best practices compliance program. This includes references...

The role of the compliance professional and the compliance function in a corporation has steadily grown in stature and prestige over the years. When it came to the corporate compliance function, 2020 FCPA Resource Guide, under the Hallmarks of an Effective Compliance Program, simply noted the government would “consider whether the company devoted adequate staffing and resources to the compliance p...

The role of the CCO has steadily grown in stature and prestige over the years. In the 2020 FCPA Resource Guide, under the Hallmarks of an Effective Compliance Program, it focused on the whether the CCO held senior management status and had a direct reporting line to the Board.  This Hallmark was significantly expanded in both the 2020 Update and the FCPA Corporate Enforcement Policy. And in so doi...

One of the critical elements found in the 2020 Update is the need to use the information you obtain, whether through risk assessment, root cause analysis, investigation, hotline report or any other manner to remediate the situation which allowed it to arise. Your company should establish a regular monitoring system to spot issues and address them. Effective monitoring means applying a consistent s...

One of the specific requirements laid out in the 2020 Update, is around internal controls and more specifically control testing. It stated: Control Testing – Has the company reviewed and audited its compliance program in the area relating to the misconduct? More generally, what testing of controls, collection and analysis of compliance data, and interviews of employees and third-parties does the c...

The call, email or tip comes into your office; an employee reports suspicious activity somewhere across the globe. That activity might well turn into a FCPA issue for your company. As the CCO, it will be up to you to begin the process which will determine, in many instances, how the company will respond going forward.  This scenario was driven home by the SEC in a 2015 FCPA enforcement action invo...