31 Days to a More Effective Compliance Program

For corporations, navigating the political landscape has become an increasingly difficult task. While being admonished to ‘stay in their lane’ by some, businesses are just like their stakeholders, impacted by the ever-changing political miasma. When this new reality is coupled with the new levels of transparency in companies, which are only amplified by social media, a company can be embroiled in...

Vin DiCianni, founder of Affiliated Monitors, Inc. (AMI), talked about the Monaco speech and culture. He said, “The announcement by Deputy Attorney General Lisa Monaco and the Justice Department reignited the agency’s concentration of corporate liability for white-collar crimes. In doing so, she emphasized to businesses, their leadership, and the lawyers representing them how important it is to im...

In her October 2021 speech, presaging the Monaco Memo, Deputy Attorney General Lisa Monaco talked at length about the importance of corporate culture. She noted, “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. Let me also be clear: a company can fulfill...

The 2023 ECCP provided clear-cut criteria regarding effective compliance investigations. Unfortunately, many compliance teams fail to promptly substantiate most of the reports they investigate, partly due to their inability to quickly and easily find the evidence they need, especially about harassment and misconduct cases. He stated, “This doesn’t just demonstrate a fundamental lack of effectivene...

The 2023 ECCP not only continued to emphasize the importance of monitoring and testing the effectiveness of a compliance program, but it spoke more about a Chief Compliance Officer (CCO) and compliance function utilizing data to engage in continuous monitoring and continuous improvement. For some time, the DOJ has stressed the importance of leveraging data to have objective evidence around whether...

The 2023 ECCP emphasized the need for the corporate compliance function to ensure consistency and fairness in monitoring investigations and the resulting discipline. One of the ways the 2020 Update emphasized this was through tracking the investigations and the discipline that may come out of any investigation. Companies’ challenges are that facts and circumstances are always different in every in...

Going into the 2020s and beyond, a corporate compliance function must be integral to your business strategy. One of the key reasons is that the ever-important debate of compliance as a cost center will become more critical in the future in this decade. If compliance programs are ineffective, enforcement actions will continue to be highly costly. Over the last 10 years, there has been an increasing...

Measuring your compliance program’s effectiveness will be a critical criterion going forward. One of the mechanisms to do so is through Key Performance Indicators (KPIs). If you have been working towards your stated goals and reporting success, KPIs are critical in showing compliance program success or failure. And while specific requirements for this kind of reporting have been hotly debated in t...

Disconnectedness compliance comes from the fact that there is not one system that connects the disparate strands of the compliance discipline. Connected compliance allows a CCO and all those people in the organization working with compliance to have one central place, a system of record for everything they do. This can be their whistleblowing hotline, case management, training of their employees,...

The DOJ and SEC have both made it clear that they expect companies to be more robust in their use of data analytics in compliance programs. This means using data not only to detect and prevent illegal conduct but also in the remediation prong of any best practices compliance program through continuous improvement. In 2019, former Deputy Assistant Attorney General Matthew Miner said in a speech tha...

Today, we look at the Compliance Function. The pandemic accelerated changes in compliance that have been percolating for the last few years. Indeed, I believe that in as short a time as 5 years, 2020 will be seen as an inflection point in compliance, IE., the Year When Everything Changed. There are four major changes I would like to highlight and what these changes portend for compliance down the...

What should compliance practitioners do to move themselves forward professionally in 2025 and beyond? To consider this question, I drew inspiration from the Financial Times (FT) piece, entitled “Work in the 2020s: 5 essential skills to succeed”, by Lyndsey Jones. In this article Jones laid out five areas where workers need to have skills that will keep abreast of the ever-evolving marketplace. The...

Where is compliance training headed? In the 2020 Update, the DOJ stated, “companies have invested in shorter, more targeted training sessions to enable employees to timely identify and raise issues to appropriate compliance, internal audit, or other risk management functions.” While this tactical solution has proven useful, I wanted to consider the broader compliance training themes that complianc...

The more you can operationalize compliance, the more it works to operationalize culture in your organization. It works for all levels of a company, literally from the Boardroom to the shop floor. The DOJ and SEC recognized this when they noted in their 2020 FCPA Resource Guide, “A compliance program should apply from the board room to the supply room - no one should be beyond its reach.” Yet cultu...

We are now at a place where there is sufficient data, academic research, and actual use cases from corporations and businesses that demonstrate good ethics and compliance programs are not simply good for business, but when properly used, they lead to greater profitability. The data and information you collect, which might initially begin as a compliance solution or project, can be used to improve...

Through restructuring, senior leadership can signal that digital transformation in compliance is critical for the future of the organization. From this point, the compliance function can work with an internal digital product design group. By doing so, the corporate compliance function can work with a team dedicated to supervising the development of the new compliance solution through product desig...

One of the lessons we have learned from various FCPA enforcement actions over the years is how complexity in business organizations can work to defeat compliance programs. Whether a corrupt employee is working to actively hide a pot of money, which can or will be used to pay a bribe, or an improper payment slips through the cracks, complexity can work to defeat a best practices compliance program....

The compliance profession seems to be an inflection point, moving away from the lawyer-driven written policies and procedures to a more operationalized regime where compliance is a part of the overall ecosystem embedded directly in business process focused discipline. Seen in this manner, compliance will be seen not as a cost center but as a value creation center, helping the company to make busin...

The next area for policies is extortion payments, which not are made illegal under the FCPA. Extortion payments are made for any action which threatens or demands payment for life, liberty, or health. These should be exempted out from your facilitation payments and your compliance program through specific language. You need to do this for a variety of reasons. First and foremost, your employees mu...

As every compliance practitioner is well aware, third-parties still present the highest risk under the FCPA. The DOJ 2023 ECCP devotes an entire prong to third-party management. It begins with the following: A well-designed compliance program should apply risk-based due diligence to its third-party relationships. Although the degree of appropriate due diligence may vary based on the size and natur...

From the information provided by the DOJ in Opinion Releases and in enforcement actions, there are several different insights which may be drawn on regarding what should go into your policy on facilitation payments. Do not forget that facilitation payments must be accurately shown on the books and records of your company. In all cases the employee who requested permission to make the facilitation...

One of the more confusing areas of the FCPA is in that of facilitation payments. Facilitation payments are small bribes but make no mistake about it, they are bribes. For that reason, many companies feel they are inconsistent with a company culture of doing business ethically and in compliance with laws prohibiting corruption and bribery. Further, the 2020 FCPA Resource Guide specified, “while the...

The original version of the Foreign Corrupt Practices Act (FCPA), enacted in 1977, contained an exception for payments made to non-US officials who performed duties that were “essentially ministerial or clerical”. In 1988 Congress responded by amending the FCPA under the Omnibus Trade and Competitiveness Act to clarify the scope of the FCPA’s prohibitions on bribery, including the scope of permitt...

The FCPA states, “The FCPA’s anti-bribery provisions apply to corrupt payments made to (1) “any foreign official”; (2) “any foreign political party or official thereof”; (3) “any candidate for foreign political office”; or (4) any person, while knowing that all or a portion of the payment will be offered, given, or promised to an individual falling within one of these three categories. Although th...

What should your compliance policy and procedures on charitable donations look like? What should you prohibit or even caution against? The starting point is the 2012 FCPA Guidance regarding charitable donations. The information on the red flags from the Opinion Releases and the best practices, as set out in the 2020 FCPA Resource Guide, have been available for some time. From the Schering-Plough a...