Better to keep your mouth shut and appear stupid than to open it and remove all doubt. — Mark Twain Years ago (seems like eons), I wrote a column lamenting lawyers and compliance professionals who operate by telling their clients “No.” Of course, there are situations when you have to say “No.” But there are too many professionals who confuse providing advice with saying “No.”...
Companies and CCOs are starting to get the message – the best and most effective control against code and legal violations is a culture of ethics and compliance. Those are high-minded ideals for high-level executives. The C-Suite likes to embrace these ideals but the C-Suite needs to recognize a couple of realities – a culture of ethics and compliance does not occur overnight and does...
FCPA enforcement agencies had a big year in 2014, collecting nearly $1.6 billion in fines and penalties; Criminal enforcement against individuals continued and more indictments are expected early in 2015; FCPA settlements reflect increased focus on internal controls, medium and small-sized companies, and gifts, meals, entertainment and travel expenses; Continued FCPA enforcement highlights the importance of implementing effective anti-corruption compliance strategies, and need for robust...
One of my favorite SNL skits from years ago was John Belushi as Henry Kissing, singing “Getting to Know You” with his arms around Menachem Begin and Yasser Arafat – a true classic. The same can be said for the compliance world – “Getting to Know You” is an absolute must for five important corporate functions. Continuing with my obsession to define an “effective” ethics...
The golden ring for every chief compliance officer is an “effective” ethics and compliance program. But if you ask a CCO if the company’s compliance program is ”effective,” they will bow their heads and reluctantly admit, “No, we need to . . . [fill in the blank].” CCOs tend to be perfectionists. It comes with the mindset and the territory. They demand perfection from others...
The Supreme Court is about to send another shockwave in criminal law. No one suspected that the Roberts Supreme Court would become a pro-defendant court but with the support of some conservative justices, the tide against prosecutorial excess is strong. From my perspective, the most significant criminal case in the last twenty years was Booker, which gutted the US Sentencing Guidelines and made the guidelines...
No company wants a corporate monitor. If you ask any General Counsel, Chief Compliance Officer or Chief Executive Officer, they can list an infinite number of alternative punishments they would rather suffer than have a corporate monitor. The idea of a corporate monitor is a good one. If you ask a company after the corporate monitor departs about the experience, many will tell you that...
The next compliance frontier in anti-corruption enforcement is third-party audits. We have spent the last few years fashioning third-party audit contractual provisions to define when and how such audits can be conducted. The issue now is for compliance professionals to work with their internal audit teams to adopt a third-party audit strategy. The first constraint is the obvious one – how much money can we...
We all know there has been a sea change in the compliance profession. No longer are compliance professionals relegated to the backwater of corporate governance. Instead, they are now front and center and being asked to design and implement effective systems to detect and prevent violations of a code of conduct and the law. The compliance profession should give itself a big pat on the...
As sanctions enforcement continues to mature, the permutations of risks become more complex. One area where companies have significant exposure is when they can be accused of “facilitation.” It is a unique risk for logistics companies and other professionals who assist companies in moving goods across borders. An individual cannot facilitate a transaction with a person or entity sanctioned by the US government. A violation...
