March Madness is upon us, with the first ever #16 knocking off a Number 1 see. In the midst of this true madness, Jay Rosen and myself take a look at some of the top compliance stories over the past week.

  1. March Madness is here. So is corruption in NCAA basketball. Tom considers both stories in Compliance Week.
  2. Former FCPA Unit Head Chuck Duross says that self-reporting is still “probably not worth it”. See article in GIR (sub req’d)
  3. Elizabeth Holmes and Theranos were engaged in massive, years long fraud. She is fined, must return her Theranos stock and is banned from running public companies for 10 years. Sam Rubenfeld reports in the WSJ Risk and Compliance Journal. See SEC Complaint for full details.
  4. What are some of the compliance lessons to be learned from the Novartis journey? Jaclyn Jaeger considers them in Compliance Week. (Sub req’d)
  5. First DPA granted under new French anti-corruption law, Sapin II. See article in NYU Compliance and Enforcement Blog.
  6. SFO Director David Green pushed back on the myth that DPAs are sweetheart deals in the FCPA Blog.
  7. Are corporate monitorships on their way out? Adam Dobrik reports in GIR (Sub req’d)
  8. The Trace Global Enforcement Report is out.
  9. On Tuesday, March 20, Tom will premier an exciting new podcast Innovation in Compliance. It is available on the FCPA Compliance Report, iTunes, Libsyn, YouTube and JDSupra.
  10. Tom announces presales of his next book, the Complete Compliance Handbook, which will be published by Compliance Week in April 2018. It is available for PreSale here.
  11. Jonathan Armstrong will be in Houston on April 10 to put on a half-day GDPR workshop. You can find out more and register at the Greater Houston Business and Ethics Roundtable website, org.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit this month’s sponsor Affiliated Monitors at

Henry Worsley and Ernest Shackleton are related by more than blood. They are related by their souls. A distant relative, Frank Worsley had accompanied Shackleton on his Antarctic expeditions, including the abortive Nimrod expedition where Shackleton had tried and failed to reach the South Pole coming with 90 miles of reaching his goal until he and his two-man team turned back. Inspired by this event, Henry Worsley and two other men successfully walked unaided to the South Pole and back in 2008-2009.

Shackleton is of course much more famous for his Endurance expedition, which one of the legendary 3-year (1914-1917) trip to the Antarctic where his crew was stranded on the ice; Shackleton and a few companions traveled some 800 miles in an open boat to the South Georgia Island whaling station to obtain a rescue craft. He then returned to the Antarctic and rescued all the men who have been stranded.

Both men provided some interesting leadership lessons from their experiences. Henry Worsley’s journey to the South Pole was recently chronicled in the New Yorker in a piece by David Grann entitled, “THE WHITE DARKNESS-A solitary journey across Antarctica”. Henry Worsley became interested in Shackleton as a child, marveled by his stories of exploring and adventure. For most of his life he was in the British Army, becoming a member of the elite Special Action Services (SAS). After his retirement, he met Shackleton’s grand-daughter who introduced him to Will Gow, the great-nephew of Shackleton who wanted to recreate the trek to the South Pole. They were joined by another relative of the Nimrod expedition Henry Adams who was the great-grandson of the Nimrod expedition’s second in command, Jameson Boyd Adams.

Together the three men trained in Artic treks and cold weather situations for several years, while fund raising for their own expedition. This training regimen was couple with meticulous planning for their trek. Each man was required to haul a sled weighing some 300 pounds across the ice. Henry Worsley’s pack was emblazoned with two phrases, “Always a little further” and “By Endurance we Conquer”. Henry Worsley drew the following leadership lessons from Shackleton, “His optimism and patience. That the welfare of his men governed all his decision making. His courage. The hope he instilled in others. His romanticism. His ability to hold a team together in adversity. His recognition of the qualities of Frank Wild and his choice to make him his second in command. The depth of affection and respect that his crew members (from all expeditions) had for him. That he never gave up on fulfilling dreams. But above all I believe that in times of deep trouble, when lives were at risk, he was able to instill in his men the confidence that he would get them out of the desperate situation they were in, because nothing was more important to him than their welfare.” The three were able to accomplish their goal by safely trekking across the ice to the South Pole and back.

Shackleton is best known for his Antarctic expeditions failures. In addition to the Nimrod and Endurance expeditions, he was also the failed first South Pole trek by Robert Falcon Scott on 1901. According to Cathy Graham, writing in Workplace Navigator in an article entitled, “7 Characters of Leadership I Learned From Sir Ernest Shackleton” the tale of “how 28 men survived for 21 months after the ship was beset in the ice floes of Antarctica”, in sub-freezing temperatures, no digital equipment, not even a radio, numerous physical obstacles, including climbing for 36 hours over uncharted mountains without climbing gear, in one chock full of leadership lessons for today’s business leader. She noted seven lessons.

  1. Honesty.
  2. Diverse Team.
  3. Be Decisive.
  4. Inclusive.
  5. Delegate.
  6. Improvise.
  7. Keep the Faith.

In this episode, Matt Kelly and I continue our exploration of the fallout from the recent Supreme Court decision in Digital Realty Trust v. Somers in light of the filing by BioRad in its appeal of the whistleblower award to its former General Counsel, Sanford Wadler. Wadler had internally reported allegation of FCPA violations by the company in China to its Board of Directors. Wadler was later terminated and filed suit claiming his termination had been in retaliation for his whistleblowing efforts. The jury agreed with him and he was awarded approximately $11MM in damages, including damages under Dodd-Frank.

Last week, BioRad filed notice in its appeal of the Digital Realty Trust v. Somers decision and asked for approximately $3MM in damages awarded to Wadler be thrown out as they were based on Dodd-Frank. There was no evidence that Wadler has whistleblown to the SEC, although there was evidence he reported as required under SOX. We explore three issues which the case raises:

  1. That employees must go to SEC and not report internally first.
  2. The inherent conflict between corporate legal departments and corporate compliance departments.
  3. Whether companies can require, on pain of termination, employees to report internally first through internal company policy and whether companies would then terminate such internal whistleblowers.

For more information on these issues see Matt Kelly’s blog post Supreme Court Whistleblower Ruling, Already in Play 

See Tom Fox’s blog post Whistleblowers at the Supreme Court-Part II: Impact of the Somers Decision

In this episode, I visit with Miller & Chevalier Member John Davis on the firm’s FCPA Winter Review 2018. We discuss the key FCPA enforcement actions from 2017 and developments in compliance. Davis identifies four theme’s from Miller’s report including: (1) What if any change did the new administration bring in FCPA enforcement; (2) the uptick in individual enforcement actions under the FCPA; (3) the new FCPA Corporate Enforcement Policy which incorporated elements from the 2016 FCPA Pilot Program and 2017 Evaluation of Corporate Compliance Programs and (4) the large, multi-national anti-corruption enforcement actions which are becoming more normalized.

We they discuss how these trends may continue into 2018 and beyond. The Miller & Chevalier quarterly FCPA report is always one of the most useful review of FCPA and related laws enforcement around. It reviews all the FCPA enforcement actions in the quarter as well as the key international anti-corruption enforcement actions. Also it has some very useful charts and graphics to summarize key trends. It is an invaluable resource for the compliance practitioner. You can check out the FCPA Winter Review 2018 by clicking here.

In this episode, Jay Rosen and myself take a look at some of the top compliance stories over the past week, including some fury.

  1. Wells Fargo is having its soul investigated by actual nuns. Alistair Gray reports in the Financial Times; Thorton McEnery notes sometimes the Universe is both hilarious and cruel in Dealbreaker; and Bloomberg says the Nuns want to know the root cause of the illegal conduct at Wells Fargo.
  2. BSRG goes into receivership. Tom reports in the FCPA Blog. For the original sordid story see, the piece in the New Yorker in 2013 by Patrick Radden Keefe.
  3. Bill Coffin continues his string of great posts. This week he says your data breach nightmare is only going to get worse in his Compliance Week
  4. Canada to introduce DPAs. Jaclyn Jaeger reports in Compliance Week.
  5. Kobe Steel CEO resigns amid admission of years of fraudulent reports by the company. Henry Cutter reports in the Wall Street Journal Risk and Compliance Journal.
  6. The FCPA declination program will be extended to other areas by the DOJ. See Tom’s piece in the FCPA Compliance Report and Henry Cutter’s piece in the Wall Street Journal.
  7. Mayhem at the Mavericks? Sports Illustrated broke the story of horrific sexual harassment in the Dallas Mavericks front office. Matt Kelly blogged on it in Radical Compliance. Tom and Matt explored it in a podcast on Compliance into the Weeds. Dick Cassin reports that the Mavericks are looking to hire a first ever CCO in the FCPA Blog.
  8. March 6 was the anniversary of the fall of the Alamo. The lads explore what is means for compliance professionals to be seen as the Alamo. Is compliance the last stand or are they simply slaughtered for standing up for their beliefs? Tom considers both perspectives in the FCPA Compliance Report.
  9. Tom and Jonathan Armstrong are back with Episode 3 of Countdown to GDPR. Tom writes about the policies and procedures you need for GDPR in the FCPA Compliance Report.
  10. Tom announces presales of his next book, the Complete Compliance Handbook, which will be published by Compliance Week in April 2018. It is available for PreSale here.

For more information on how an independent monitor can help improve your company’s ethics and compliance program, visit this month’s sponsor Affiliated Monitors at