This episode is the first of a two-part series of podcasts dedicated to the first 100 days of the Trump administration as it related to compliance. Today we have Jonathan Armstrong and Jay Rosen. Next week Matt Kelly and Mike Volkov.

  1. Jonathan Armstrong leads a discussion of the Trump administrations devolution of Privacy Shield, GDPR and what they mean for American companies doing business in the UK and EU. He discusses the key differences in the DOJ’s Evaluation of Corporate Compliance Programs in an FCPA analysis and under the Bribery Act, differences in the EU approach to conflict minerals and under the Trump Administration and concludes by giving us his thoughts on what Brexit means for compliance.

For the Cordery Compliance client alerts see the following:

EU conflicts minerals compliance legislation 

DOJ Evaluation of Corporate Compliance: how does it compare to UK Bribery Act 2010?

BREXIT Glossary

  1. Jay Rosen considers what companies the intersection of business and politics under the Trump administration, the business response he has observed to Trump administrations steps and miss-steps, the comments made by DOJ representatives at Q1 conferences and the vibe of compliance conference attendees.

For Jay’s posts see the following:

 Still in the Enforcement Business and Evaluation of Corporate Compliance Programs

“It Was the Best of Times, It was the Worst of Times,” or “Ignorance is Strength”

 For Matt Kelly’s posts see the following:

Compliance in the Trump Era: More Markers Placed

Trump Administration Whacks Telco Firm for $892 Million

Drone Industry Pan Trump’s Regulatory

Trump Risk Disclosures Start Rolling In

First SEC Whistleblower Award of Trump Era

Sessions Dodges, Weaves, Promises on FCPA

For Mike Volkov’s posts see the following:

Yates, AG Sessions and Individual Criminal Prosecutions

New E-Book — Moving the Goalposts: The Justice Department Redefines Effective Compliance

FCPA Remediation Focus on Supervisory Personnel

FPCA Pilot Program Motors On

For Tom Fox’s posts see the following:

The Trump Administration-Kaos is Bad for Business

The Trump Administration-Failures in Leadership and Management

The Trump Administration-Preparing for a Catastrophe

The Trump Administration-the Business Response

DOJ Enforcement of the FCPA and the International Fight against Corruption in the Trump Administration

The members of the Everything Compliance panel include:

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

In addition to prolific writing about compliance another area I committed to as the Compliance Evangelist is to speak about compliance in a variety of forums. In May, I have several speaking events and a webinar which I am excited to relate to you today.

On Tuesday May 16th I will be joined by Jonathan Marks, a partner at Marcum LLC to present a conference on Operationalizing Compliance. The schedule is Registration and Continental Breakfast : 7:45 am – 8:15 am and the Program: 8:15 am – 4:00 pm. Highlights include:

  • What are the leading practices of an operationalized compliance program;
  • Why internal controls are the compliance practitioners best friend;
  • How you can use transaction monitoring to not only make your compliance program more robust but as a self-funding mechanism;
  • The new global anti-corruption enforcement paradigm;
  • Internal investigations and;
  • Negotiating with the government.

You will be able to walk away from the Operationalization Class with a clear understanding of how to operationalize a compliance program; an overview of international corruption initiatives and how they all relate to FCPA compliance, if it applies to you; how to deal with third parties, from initial introduction through contracting and managing the relationship, internal investigations, negotiating with the government, and trends in compliance. You will also learn about the importance of internal controls and how to meet the strict liability burden present around this requirement of FCPA compliance.

The Venue will be:

Marcum LLC

1600 Market Street

Philadelphia , PA  19103

Best of all, the event is complimentary. For registration and additional details, click here.


On May 18, I will be joined by Ben Locwin,   PhD, MBA, MS, President, Healthcare Science Advisors for a session on Pharmaceutical compliance issues and risk management at the CPhl North America, which will also be held in Philadelphia. If you are in pharma this is the conference for you. 

This session is centered directly on the diametrically-opposed viewpoints of strategic drug pricing. How are prices set? How should they be set? What’s the balance between capitalism, good economics, corporate interests, and altruism? Do these paradigms apply to both established and emerging markets? What are the legal frameworks surrounding these decisions? What are the ethical debates underpinning these decisions? What are the legal ramifications of approaching it incorrectly?

Legal and Policy Strategies for Drug Companies in Today’s Global Market
I. Drug pricing:
i. How is it set?
ii. Is it set accurately?
iii. Is it set appropriately?
iv. What do those even mean?

II. Why does levothyroxine matter? Reimbursement.
i. What’s happening with reimbursement in 2017?
ii. What does a new presidential administration mean for drug prices?

III. The Heinz Dilemma
i. Separating ethics and morals from business, enterprise, and economics

IV. Interactive Exercise
Develop regionally-specific pricing models to create a visual worldwide market that encourages competition, growth, and sustainability.

For Registration and Information, click here.


From May 22-24, I will be participating in Compliance Week 2017. I am chairing a panel with two of my favorite folks in compliance; Ren McEachern from the FBI and the recently retired Head of the Security and Exchange Commission’s FCPA Unit, Kara Brockmeyer. Our session will be a celebration, entitled, “Happy Birthday FCPA! A Toast to the Next 40”

Session Description:

The FCPA was enacted back in 1977, but its real time to shine has been over the last decade. There is no denying its impact on anti-corruption laws around the globe or the headline-making status due to increased enforcement in the United States. In this session we’ll discuss what companies need to know about the FCPA moving forward, including the impacts of increased cross-border law enforcement cooperation, the importance of third party risk management, and industry’s increasingly sophisticated understanding of what an effective anti-corruption compliance program should be.

Readers of this blog can receive a discount of $300, by entering discount code CW17TOMFOX for the payment page. For more information and registration details, click here.


Finally if you are not going to be in Philadelphia or Washington in May or your travel budget is light for the month, I  will be participating in a Compliance Week webinar, on Operationalizing Your Compliance Program, with Patrick Taylor of Oversight Systems on May 4.  As you are well aware, the Justice Department has mandated that companies operationalize compliance within the organization to drive effectiveness. Review and analysis of corporate data is one way to do so. Reviewing gifts, travel and entertainment expense data can benefit compliance, accounts payable and sales functions, just to name a few. How can a compliance professional develop and implement such a plan? In this webinar you will take away:

  • An understanding of the types of data each company owns;
  • Why operationalization of compliance is an imperative;
  • How to cut across silos to increase operationalization; and
  • How to partner with other corporate functions.

For more details and registration, click here.

In two speeches last week Department of Justice (DOJ) Acting Principal Assistant Attorney General Trevor McFadden addressed multiple topics and issues around the Foreign Corrupt Practices Act (FCPA). The first set of remarks were made in Washington DC at the Anti-Corruption, Export Controls & Sanctions (ACES) 10th Compliance Summit (the “DC speech”). The second were made at the American Conference Institute (ACI) 19th Conference on the FCPA in New York City (the “NYC speech”).

While I have previously considered the evolution in the Department of Justice (DOJ) rationale for FCPA enforcement and the corporate response to FCPA compliance requirement, today I want to consider McFadden’s remarks and what they may portend for both FCPA enforcement and more broadly, international anti-corruption enforcement going forward. He began the final section of his remarks by reiterating the DOJ’s commitment to the concepts articulated in the Yates Memo. The DOJ wants to hold individuals accountable for corporate misconduct, as it is individuals not corporations who engage in actions. He also reiterated support for the concepts behind the FCPA Pilot Program stating, “the department regularly takes into consideration voluntary self-disclosures, cooperation and remedial efforts when making charging decisions involving business organizations.”

He next turned to the speed and length of FCPA investigations. McFadden said the DOJ is committed to moving forward “expeditiously” to investigate and bring investigations to a conclusion. However, to do so, companies must be prepared to meet this need for speed with prompt and thorough investigations. It also means there must be extensive cooperation, including companies working with the DOJ, to “prioritize internal investigations and to respond to Fraud Section requests promptly to ensure there are no unnecessary delays.”

McFadden believes this new, speedier resolution process will “be good for cooperating companies. No executive wants to deal with a lingering government investigation or the associated costs and distraction from the company’s mission.” Both the Fraud Section leadership and McFadden are focused on wrapping up old investigations, with no unnecessary delays. McFadden concluded this section by stating “My intent is for our FCPA investigations to be measured in months, not years.”

McFadden then moved on to how the DOJ will consider decisions to bring enforcement actions. Intoning that prosecutors will always follow the facts, there are times when this means the DOJ will “stop and close an investigation.” There may also be times “When we do not have evidence of the requisite criminal intent, there is no justification for a Criminal Division resolution, and we will defer to our regulatory colleagues to handle the matter” and the Securities and Exchange Commission (SEC) may pursue civil charges under the FCPA. Finally, there will be times when a criminal prosecution is warranted. McFadden made clear the DOJ will continue to use the full panoply of tools available to them.

McFadden then turned to international investigations and enforcement in the global fight against bribery and corruption. Similar to the efforts of US companies in leading the business response to compliance standards, the DOJ (and SEC) has lead the globe’s legal enforcement effort against corruption. Yet there is a growing international consensus against corruption reflected in both the passage of new and stronger of anti-bribery laws. Countries such as “UK, Brazil, the Netherlands and others who are taking new strides to fight corporate corruption at home and around the world” by increasingly prioritized anti-corruption prosecutions. All largely in concert with the DOJ and SEC.

The DOJ will share evidence of violations of foreign law with “international law enforcement partners where we do not have jurisdiction over the wrongdoers” as well as offering other assistance. He noted, “This is all part of our effort to ensure that companies and individuals subject to the jurisdiction of the FCPA are not disadvantaged as compared to other companies.” Both investigations and enforcement actions are increasingly international in scope and the DOJ seeks “to reach global resolutions that apportion penalties between the relevant jurisdictions so that companies that want to accept responsibility for misconduct are not unfairly penalized by multiple agencies.” McFadden specifically cautioned that the DOJ’s “willingness to apportion or credit penalties based on resolutions with other regulators assumes that the company cooperated with our investigation and did not engage in forum shopping to avoid department involvement in the matter.”

McFadden’s penultimate remarks dealt with transparency and information made available by the DOJ through declinations and other initiatives such as the Pilot Program. He noted the differences in declinations where there was insufficient evidence of corporate misconduct “where we would have brought criminal cases but for the companies’ voluntary self-disclosure, full cooperation, and comprehensive remediation.” He then went to specifically reiterate the importance of transparency in enforcement policies and practices, noting the Pilot Program had brought a large measure of transparency. The Pilot Program will continue pending a full assessment of it going forward.

What does it all mean for the compliance practitioner? DOJ speakers have articulated many of these concepts previously, however, McFadden emphasized a new drive towards more expeditious resolution, one way or the other, on FCPA investigations. That can certainly be good news for companies. However, this speedier process will put much more pressure on corporate compliance programs and compliance practitioners to address issues that rise up to potential FCPA violations promptly to get the investigations completed quickly and correctly. It will then put more pressure on the assessment and timing of a decision to self-disclose. Companies will also be required to provide more and probably higher quality evidence of culpability of employees and pointing the DOJ in directions they may not have considered.

These remarks also made clear the DOJ is committed to the international fight against bribery and corruption. It will work with its investigative and prosecutorial counterparts across the globe to not only share information but aggressively prosecute corruption scofflaws. This continues the intiatives begun by McFadden’s predecessors at the DOJ and others such as Kara Brockmeyer, recently retired from the SEC; to bring more and greater resources to bear across the globe to fight bribery and corruption. This too will also put more pressure on corporate compliance programs to get compliance right going forward. Just as the only hope for a company to receive a declination and not be prosecuted under the FCPA is to have an effective compliance program, fully operationalized, in place.

For those who thought that Trump would do away with the FCPA or his minions would work to weaken it, McFadden’s two speeches should be of comfort that the DOJ understands not only the value of the FCPA to the US as a country but also the US business community. Striving for a level playing field in the business world will always work to the advantage of US companies. Indeed more anti-corruption enforcement across the globe should also benefit American companies by even greater leveling of the playing field. McFadden’s remarks make clear that the FCPA is a positive for businesses and its continued enforcement will remain a top priority in the current DOJ.

 

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2017

In this episode, Jay and I have a wide-ranging discussion on some of the week’s top FCPA and compliance related stories. We discuss:

  1. Wrap up from the SCCE European Compliance and Ethics Institute.
  2. SEC Unit Chief Kara Brockmeyer announces her retirement. Click here for Matt Kelly’s article on Radical Compliance.
  3. Wal-Mart announces its 2016 spend on its FCPA investigation and remediation of $99MM. Click here for Matt Kelly’s article on Radical Compliance.
  4. Upjohn warnings after the Yates Memo. See article the Grand Jury Target blog.
  5. Report on OECD Integrity Forum. Allison Taylor writes in the FCPA Blog.
  6. Astros, Red Sox and Dodgers all lead their divisions.
  7. Jay previews his weekend report.

Show Notes:

  1. The SFO announces an investigation into the Swiss engineering giant ABB, Ltd. for allegations of corruption coming out of the Unaoil scandal. See article in the FCPA Blog.
  2. Former Magyar Telekom exec settles with SEC before trial. See article in FCPA Blog.
  3. Tom goes on an extended rant about the ISO 37001 certification process and why it is “worse the useless”. See Tom’s post on the topic on the FCPA Compliance and Ethics Blog.
  4. Jay Rosen’s discusses his new gig with Affiliated Monitors.
  5. Everything Compliance-Episode 7 is out. It is dedicated exclusively to the first two chaotic weeks of the Trump Administration.
  6. Jay Rosen Weekend Report preview.

For some additional reading see:

1.) Mike Volkov Article on Monitors

http://blog.volkovlaw.com/2017/02/yikes-perils-remediation-corporate-monitors/

2.) Jay Rosen Weekend Read

The “Real” FCPA, SCCE + Hello Goodbye

https://www.linkedin.com/pulse/real-fcpa-scce-hello-goodbye-jay-rosen-ccep

3.) Kristy Grant-Hart on The Top Five Myths about ISO-37001 Exposed

http://fcpablog.squarespace.com/blog/2017/2/14/the-top-five-myths-about-iso-37001-exposed.html

4.) Jay Rosen new contact info

Jay Rosen, CCEP

Vice President, Business Development

Monitoring Specialist

Affiliated Monitors, Inc.

Mobile (310) 729-6746

Toll Free (866)-201-0903

JRosen@affiliatedmonitors.com