Fcpa Compliance Report

Why is hiring so important under for compliance? It is because hiring is important to any company’s health and reputation. At this point, until the US Supreme Court tells us that a corporation is the same as a human being, with both obligations and rights; a company is only as strong as its employees. Like most areas of compliance good hiring practices for those employees who will do business in compliance with anti-corruption laws such as the FCPA are simply good business practice. I have seen one industry estimate, it costs an average of roughly $4,000 to replace a single employee, and one survey of 2,500 companies found that a single bad hire can cost more than $25,000 in lost productivity, lower morale and the like. For one of the energy services company where I worked this estimate went as high as $400,000 to hire and fully train a new employee. I would add that those costs could go up significantly if a bad hire violates the FCPA. As far back as 2004, in Opinion Release 04-02, the Department of Justice

One of the theories of conventional wisdom about anti-corruption compliance is that you will never be able to reach 5% of your workforce with compliance training because they are predisposed to lie, cheat and steal anyway. Whether they are simply sociopaths, scumbags or just bad people; it really does not matter. No amount of training is going to convince them to follow the rules, as they do not think such laws apply to them. They will lie, cheat and steal no matter what industry they are in and what training you provide to them. But knowing such people exist and they may be able to lie, con or otherwise dissimilate their way into your organization does not protect your company from FCPA liability when they inevitably violate the law by engaging in bribery and corruption. It is still the responsibility of your company to prevent and detect such conduct and then remediate if it occurs. This is where your HR function has a dual role. They can work to help weed out such miscreants and to communication your corpo

Today, I conclude my review of FCPA enforcement actions that involved the corporate hiring function. From these three cases I have considered, it is clear that HR must be involved in compliance and if HR hiring controls are over-ridden there must be an appropriate consideration of the risk management issues. In November 2016, JP Morgan Chase (JPM) and its subsidiary, JPMorgan Securities (Asia Pacific) Limited (JPM-APAC) resolved its FCPA matter, obtaining a NPA from the DOJ with a penalty of $72MM, agreeing to a Cease and Desist Order (“Order”) from the SEC, with a penalty consisting of profit disgorgement and interest of $135MM, and reaching an agreement with the Federal Reserve Bank (Fed) for a Consent Cease and Desist Order (Fed Order) to put in place a best practices compliance program and pay a penalty of $61MM. The total fines and penalties paid by JPM for its violation of the FCPA was $268 MM. The conduct involved JPM-APAC’s Client Referral Program, named the “Sons & Daughters Program” (Sons and Daugh

In this episode, Matt Kelly and I take a deep dive into the weeds of the soon-to-be-released the House Financial Services Committee, the Financial Choice 2.0 Act. We consider some of the ideas in the legislation which Matt thinks are bad including: 1. Repeal of the Chevron deference repealed.  2. Attempts to clip the SEC rule making authority. 3. Exempting more companies which desire to go public from SOX 404(b) requirements and reporting.  4. (Matt's most particular bad idea) The exemption of more filers exempted from XBRL reporting. We also discuss some of the potential benefits from the legislation and where it may all go in the Senate. For more see Matt's blog post House GOP Regulatory Reform Axe, on his site Radical Compliance.     Learn more about your ad choices. Visit megaphone.fm/adchoices

  BNY Mellon Up until the summer of 2015, hiring practices under the FCPA were not been given much thought or widely discussed. However that began to change in the summer of 2015 when the SEC announced a resolution with Bank of New York Mellon Corporation (BNY Mellon) for violations of the FCPA. This was the first enforcement action around the now infamous Princess-lings and Princelings investigation where US companies hired the sons and daughters of foreign officials to curry favor and obtain or retain business. In this matter the BNY agreed to pay $14.8 million to settle charges that it violated the Foreign Corrupt Practices Act (FCPA) by providing valuable student internships to family members of foreign officials affiliated with a Middle Eastern sovereign wealth fund. The Order also specified how the hiring of the relatives led directly to BNY Mellon obtaining and retaining business. One foreign official, made a personal request that BNY Mellon provide internships to two of his relatives: his son and ne

In this podcast, Marc Bohn and James Tillen from the firm of Miller & Chevalier, discuss their recent publication entitled, "Evaluating FCPA Pilot Program: Declinations on the Rise" where they review the state of Department of Justice's Foreign Corrupt Practices Act  declinations after one year of the agency's enforcement Pilot Program, which sought to promote greater accountability for companies and individuals who violate the FCPA, while rewarding those who voluntarily self-disclose violations and cooperate with investigations and remediation efforts. They discuss the following issues: Do the numbers show any increase in declinations in 2016 over the past few years? What are the conditions to obtain a declination? Is any one as more important or are they of equal importance? Is there any reason not to publicize all declinations? They discuss how SEC enforcement is a factor in DOJ calculus in determining whether or not to grant a declination.  In 2016 there were two declinations which involved privately hel

Day 1-  The Role of Human Resources in Operationalizing Compliance This month, I will consider the role of Human Resources (HR) in operationalizing a best practices compliance program. I have long advocated for a greater role of Human Resources (HR) in a compliance program. Indeed, one sign of a mature Foreign Corrupt Practices Act (FCPA) compliance and ethics program is the extent to which a company’s HR Department is involved in implementing a solution. While many practitioners do not immediately consider HR as a key component of a FCPA compliance solution, it can be one of the lynch-pins in spreading a company’s commitment to compliance throughout the employee base. HR can also be used to ‘connect the dots’ in many divergent elements of a FCPA compliance and ethics program. Even more importantly is the operationalization of compliance into the fabric of the business. One of the key indicia of compliance program effectiveness is how thoroughly each separate corporate discipline incorporates compliance into

In this episode, Jay and I have a wide-ranging discussion on some of the week’s top compliance related stories. We discuss: Trump’s First 100 days end with a decided wimper. What does it mean for compliance? Novartis gets into corruption trouble in South Korea. See article in FCPA Blog. Shell and ENI are in a big corruption mess in Nigeria. See Tom’s article in the FCPA Blog. United Airlines tries to clean up its act. See articles in the New York Times and Wall Street Journal. Jay reports on the ECI conference and tells us what’s in his coloring book. Tom details his speaking engagements in May. For details and registration information click here. KBR under investigation by UK SFO for allegations around the company’s use of Unaoil. See article in the Wall Street Journal. Listeners to this podcast can received a discount to Compliance Week 2017. Go to registrationand enter discount code CW17TOMFOX. Jay previews his weekend post, which is now up, "It Was the Best of Times, It Was the Worst of Times" or "I

I end this one month series by taking things a different direction. Today I do not focus on third party risk management but on third parties as a compliance innovation source for your organization. It is universally recognized that third parties are your highest Foreign Corrupt Practices Act (FCPA) risk. What if you could turn your third party from a liability under the FCPA to an innovation partner to your compliance program? This is an area that not many compliance professionals have mined but once again in compliance, you are only limited by your imagination.  In an article in Third Party Management Review by Jennifer Blackhurst, Pam Manhart and Emily Kohnke, entitled “The Five Key Components for Third  party Innovation”, the authors asked “what does it take to create meaningful innovation across third party partners?” One reason compliance innovation with third parties can be so power is that it cannot only affect costs but can move to gain a competitive advantage. To do so companies need to see their thi

In this Part I of a two part series recorded at this month's European Compliance and Ethics Institute in Prague, Roy Snell discuss the DOJ's Evaluation of Corporate Compliance Programs in the context of cavemen and Plato's Analogy of the Cave. We review some of the new information and Roy discusses how it is a compilation of many differing strands of compliance thought over the past 20 year. We then discuss the HCCA-OIG Resource Guide on Measuring Compliance Program Effectiveness. As always we go off on tangents and dive deeply into issues relating to the the compliance profession. Learn more about your ad choices. Visit megaphone.fm/adchoices

One of the areas many companies do not focus on enough is possible corruption in their Supply Chain (SC) for goods and services provided on a company’s behalf. The FCPA risks can be just as great through those entry points as it can be through the sales side of an organization. You need to know who your company is doing business with through the SC as much as you need to know your agents seeking business opportunities on your behalf.  As most companies have exponentially more vendors than sales agents, this task may seem daunting. However a well thought plan to risk rank your company’s third parties on the SC side can go a long way towards ameliorating this issue. The key is to set reasonable parameters and then management those third parties which present true corruption risk to your organization. This determination of the level of due diligence and categorization of a supplier should depend on a variety of factors, including, such factors as whether the supplier is (1) located, or will operate, in a high ri

The Foreign Corrupt Practices Act (FCPA) world is littered with cases involving freight forwarders, brokers and agents in the shipping and express delivery arena. Both the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have aggressively pursued third party business relationships where bribery and corruption have been found. This is particularly true where companies are required to deliver goods into a foreign country through the assistance of a freight forwarder or express delivery service. There are several major risk points. These include: Location, location, location; Customs and other governmental agencies; Aviation and postal regulators; Business promotion expenditures for governmental officials; Agents and sub-agents; and Government accounts are a major part of express shipper customers so must analyze this as well. How can a company respond to protect itself or at least reduce its potential FCPA risk with regarding to a logistics company, freight forwarder or express deliver

In this episode I visit with white collar defense and Qui Tam specialist Joel Androphy about prosecution of whistleblower claims at the federal and state level. Androphy explains what type of evidence is required to file such a claim, have the government take over the action and what a whistleblower may expect. It is a fascinating view from a whistleblower expert counsel at the state and federal level. Joel Androphy can be reached at jandrophy@bafirm.com. For more information about his practice areas, including whistleblower claims, False Claims Act lawsuits and Qui Tam claims; check out the firm website at bafirm.com. Learn more about your ad choices. Visit megaphone.fm/adchoices

One of the issues in any compliance program is the compensation paid to a third party as FCPA exposure arises when companies pay money - either directly or indirectly - to fund bribe payments.  In the traditional intermediary scenario, the company funnels money to the agent or consultant, who then passes on some or all of it to the bribe recipient.  Often, the payment is disguised as compensation to the intermediary, and some portion is redirected for corrupt purposes.   When companies grant distributors uncommonly steep discounts, bribes can result either: 1) because the distributor is instructed by the company to use the excess amounts to fund corrupt payments; or 2) because the distributor pays bribes on its own, without the express direction or implicit suggestion from the company to do so, in an effort to gain some business advantage. The 2012 FCPA Guidance, it noted that common red flags associated with third parties include “unreasonably large discounts to third-party distributors”.  The distributor en

In this episode, Matt Kelly and I take a very deep dive into two recent speeches by Department of Justice (DOJ) Acting Principal Assistant Attorney General Trevor McFadden in which he 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 set of remarks were made at the American Conference Institute (ACI) 19th Conference on the FCPA in New York City (the “NYC speech”). We consider the evolving rationale for FCPA enforcement which has changed in the 40 years since it was enacted, the mandatory corporate response to FCPA compliance requirements, and how McFadden sees Justice Department enforcement of the FCPA going forward in the Trump administration.  For Matt Kelly blog post on McFadden's remarks, click here. For Tom Fox's segments of a three part series, click here for Part I, Part II and Part III. Learn more abo

At some point, you will be required to terminate a third-party and there will be multiple legal, compliance and business issues to navigate going forward. If you are stuck doing it in the middle of a Foreign Corrupt Practices Act (FCPA) or Bribery Act investigation, such as Airbus is currently under with the UK Serious Fraud Office (SFO), there may well be some tension to do so and do so quickly. If you have not thought through this issue and created a process to follow before it all hits the fan, you may well be in for a very tough road.  The key theme in termination is planning. The Office of Comptroller of the Currency, OCC Bulletin 2013-29, said that regarding third-party termination, a bank should develop a “contingency plan to ensure that the bank can transition the activities to another third party, bring the activities in-house, or discontinue the activities when a contract expires, the terms of the contract have been satisfied, in response to contract default, or in response to changes to the bank’s

In this episode, Jay Rosen returns from a week’s trip to Walt Disney World. Jay and I have a wide-ranging discussion on some of the week’s top compliance related stories. We discuss: DOJ Criminal Division's Acting Principal Deputy Assistant Attorney General remarks on the FCPA and its enforcement. - See text of speech by clicking here. See Matt Kelly’s blog post by clicking here. Whistleblowers in the news. See Tom’s article on the Barclay’s CEO and Amtrust in FCPA Blog and on KPMG in Compliance Week. Mike Volkov weighs on whistleblowing as indicia of corporate culture here. One year reports note that declinations are on the rise under the on the now one-year old FCPA Pilot Program. For Miller & Chevalier report click here (sub. req’d). For the Stanford University FCPA Clearinghouse Report in the Wall Street Journal, click here. Tribute to Kara Brockmeyer, retiring as head of the SEC’s FCPA Unit. See Tom’s article in Compliance Week. Jay details his upcoming conference schedule and weekend report on

One area that has bedeviled Chief Compliance Officers (CCOs) and compliance practitioners is how to determine the return on investment (ROI) for your compliance program regarding third parties. While it is still clear that third parties are the greatest risk in Foreign Corrupt Practices Act (FCPA) enforcement actions, senior management often wants to know what is the monetary benefit to the company for this type of risk management.  When you couple the request for ROI with the recent Department of Justice (DOJ) mandate for the operationalization of your compliance program, as articulated in the Evaluation of Corporate Compliance Programs, it may seem like a doubly daunting task. However the requirement for operationalization of your compliance program actually lends itself to formulating ROI around the risk management of third parties. This is because if you move the third-party compliance into the organization as a business process, with a technological solution, the ROI becomes not only clearer but easier t

When was the last time you considered the health of your company’s third party management program? A good way to test that well-being is to perform a check-up on your third party program. An article entitled “Third Party Essentials: A Reputation/Liability Checkup When Using Third Parties Globally”, provided a manner for the compliance practitioner to test an “organizations health status concerning your relationship to your third parties.” The article provided seven points that you can consider in a self-assessment: Do you have a list or database of all your third parties and their information? Does your company have a full list of all third parties including such basic information as name, location, type of services provided, contract files and dates, principals of the third party and primary contact, due diligence files and any other information you might need to manage the third party relationship going forward? When was the last time this list was checked or updated? Have you done a risk assessment of you

Internal controls are a key tool to operationalize your third party risk management program. Initially, a compliance practitioner should perform an analysis of any third party representative to provide insight into the pattern of dealings with such third parties and, therefore, the areas where additional controls should be considered. The basic internal controls, that should be a part of any financial controls system, include some or all of the following:  A control to correlate the approval of payments made to contracts with third party representatives and your company’s internal system for processing invoices. A control to monitor all situations in which funds can be sent outside the US, in whatever form your company might use, which could include accounts payable computer checks, manual checks, wire transfers, replenishment of petty cash, loans, advances or other forms. A control for the approval of sales discounts to distributors. A control for the approval of accounts receivable write-offs. A control fo