The FCPA Blog is the granddaddy of all the Foreign Corrupt Practices Act (FCPA) blogs. It was founded nearly 10 years ago by Dick Cassin and is recognized as one of the top sources for all things FCPA and compliance related. The FCPA Blog has had more than 350 individual contributors over that time and as a Contributing Editor to the site, I am proud to have been one of that number. It is as vibrant as it has ever been. I thought about all of this when I attended the inaugural FCPA Blog NYC Conference held last week in New York City. It was a great tribute to Dick Cassin, the founder and editor-in-chief of the FCPA Blog, and to his son Harry Cassin the Chief Executive Officer (CEO) of the organization.
The metaphor that Dick Cassin used in his opening remarks was that he envisioned the FCPA Blog as an international bulletin board for all persons wanting to comment upon or learn about the FCPA and compliance and ethics. Cassin has certainly succeeded in creating a community space where people can post their ideas and learn about a wide variety of compliance topics, multiple times a day. If you read my blog but do not read and subscribe to the FCPA Blog, I can only suggest you go over to that site and sign up for Dick’s daily emails now.
The FCPA Blog conference was the type of event you would expect from Dick Cassin. Although designed by himself and Harry, he clearly brought many others into the planning and execution of the event; from the sponsors, to the speakers and presenters, to those who helped on the ground doing much of the spade work to set up the conference such as Richard Bistrong. The participants were a wide range of practitioners, commentators, former government lawyers and others.
One of the things about the conference, which was immediately apparent, was that it was ‘power-point-light’ in that there was only one presentation which incorporated a PowerPoint slide deck into the speakers or panelists remarks. While I am generally a huge fan of PowerPoint slide decks, I found that this component of the FCPA Blog conference worked for me. It forced me to concentrate fully on the speaker’s remarks, even as I was typing away. As a speaker, I found that it allowed the moderator of my panel, the always great Julie DiMauro, freedom to range not only from the answers of myself or my co-panelist, Mike Scher, but also to take our focus to places the audience suggested in their questions. Julie was great at taking what we and the audience gave her and running full speed with it going forward.
One of the most interesting speakers was Lanny Breuer, the former number 2 of the Department of Justice (DOJ) and now a partner at Covington and Burling LLP. Sam Rubenfeld, in a Wall Street Journal (WSJ) Corruption Currents article, entitled “Lanny Breuer Has Doubts About FCPA Pilot Program”, reported, “The FCPA bars the use of bribes to foreign officials to get or keep business. The program, which launched in April, gives a 50% discount to the bottom fine imposed under the U.S. Sentencing Guidelines if companies self-disclose wrongdoing, fully cooperate with investigators and disgorge ill-gotten profits. But, Mr. Breuer said, it’s up to the government to decide if a company’s efforts are enough to meet the program’s requirements.”
However, and perhaps most interestingly, he raised some concerns around the program and stated, “that while it’s too soon to tell if the pilot has had its intended effect, he had some issues with its component parts and with how the department is using it.” These concerns were around what Breuer terms “de-confliction” which “Breuer said involved the government asking a company to halt its own investigation for the government to be the first to interview witnesses.” Breuer said that if “de-confliction” is required as cooperation to gain the benefits of the pilot program, such a request from the DOJ would be “an extraordinary request, in my view” because it “could lead companies to be unable to disclose to other agencies or to shareholders, and it could keep a board in the dark about the alleged wrongdoing.” Breuer added, “In general, publicly traded companies can’t just stand down from doing an investigation when such an allegation comes in.” He also commented that “he’d been asked to do so a couple of times.”Clearly the DOJ could have a broader remit or be involved with other ongoing investigations where they might make such requests. However, such ‘de-confliction’ could stop a company from engaging in a root cause analysis or even robust investigation. An earlier panelist, Gerald Kral, the Chief Ethics and & Compliance Officer (CECO) of Brown-Forman, said on his panel that his company did an extensive root cause analysis of every claim or incident so it can not only understand what happened but put sufficient risk management protections in place to try and make sure it does not happen again.
Breuer also had some interesting comments about the DOJ Compliance Counsel, Hui Chen. Breuer believes the results have proven positive for the DOJ. He said that Chen was brought on for both prospective and retrospective reviews. In the retrospective review, she takes a retroactive look back at what your company should have had in place at the time of the incident in question. Her prospective review looks at what your program should be going forward. Breuer noted that some of the key questions she weighs in on:
- Who owns your compliance program? Is it the Chief Compliance Officer (CCO) and compliance function only or has it been pushed down the business unit level?
- Did you test your compliance program? Breuer explained that this meant not only did you perform a risk assessment but do you continue to evolve your program through ongoing monitoring and assessments and then incorporate those results into your program going forward?
- Does CCO have authority to effect changes necessary and does the CCO have a direct line of reporting access to those at the top?
- Is your compliance program right-sized for your sized company? Breuer said the DOJ recognizes that every company does not need an Exxon-style compliance program. However, this means that a company must assess its compliance risks and then manage those compliance risks going forward.
I have called Dick Cassin the Godfather of all compliance commentators. He was not only the first but he is the most generous person in allowing others to write and speak about compliance. It was Dick Cassin who gave me the first opportunity to guest post on the FCPA Blog and it was Dick Cassin, who after seeing my guest posts, encouraged me to begin my own blog. Finally, it was Dick Cassin who encouraged me to take my career a step further by publishing my first book and providing me the forum to do so. And I am far from alone in those Dick Cassin has helped, encouraged and supported over these past 10 years.
The FCPA Blog NYC Conference was a great event and a great way for many of us to thank Dick Cassin. I am sure under his Editorship, and Harry Cassin’s CEO tenure, the company will continue to be one of the leading lights in the compliance space.
Jay Rosen and I did an entire This Week in FCPA podcast on the Conference. You can check out our review by clicking here.
The FCPA Blog remains true to Cassin’s vision of the most public and best bulletin board for compliance.Click to tweet
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© Thomas R. Fox, 2016