Compliance Perspectives

By Adam Turteltaub

There are few phrases that can spread fear more quickly than “There’s a reporter on the phone who wants to talk with you.”

Part of the anxiety stems from the fact that few compliance professionals have much experience in talking with the press.

To help better understand what you should and shouldn’t do when talking to a journalist, we spoke with Ben DiPietro, editor and reporter for the Wall Street Journal Risk & Compliance Journal, and with Grace Keith, Managing Director, Caliber Corporate Advisers.

In this very illuminating, and often reassuring conversation they lay out practical tips when talking to the press including the fact that reporters are people, too.  Each one is different, working at different organizations with different rules and guidelines.  So, don’t think of the press at one monolithic body.  Other advice includes:

* Do a little Google search before talking to a reporter, and even check social media to better understand what they cover

* You can build relationships with a reporter and be a source, not just talk to them when there is bad news

* Don’t be afraid to tell the reporter that you need to call him or her back, but find out what the reporter’s deadline is

* It’s okay to tell a reporter that you don’t know an answer and will need find out; it’s far better to do that then to give the wrong information

* If the reporter isn’t familiar with compliance programs, take the time to explain how they work

* Don’t forget that compliance may mean different things to do different people; be sure to let the journalist know what you are focused on

* Have a plan for when something goes wrong

* Be clear what’s on the record, off the record and on background

* Speak slowly so that the reporter can type accurately.

By Adam Turteltaub

Recently, Terry Stechysin of the Canadian Competition Bureau shared his perspectives via a podcast on the Canadian Government’s view of the role of compliance in anti-competition.  In this podcast, another Canadian, Steven Preece, an Assistant Director with the UK Competition and Markets Authority (CMA), weighs in on the UK government’s perspective.

Listen in to this podcast as Steve provides us with an overview of the CMA, which is the top anti-competition authority in the UK.  He explains:

* The similarities and differences from an enforcement perspective with the US Department of Justice and Securities and Exchange Commission

* The value CMA gives to compliance programs, including a potential reduction in penalties

* The key elements that CMA looks for in compliance programs:

* Evidence from top down to a commitment to anti-competition law compliance

* Risk identification and assessment

* Risk mitigation, and

* Review activities

* The helpfulness of integrating anti-corruption and anti-competition training

* The importance of making training meaningful to the business and providing practical guidance.

In this podcast he provides references to several online resources from the CMA.  To access them, just follow the links below.

CMA Homepage

Quick Guide to Competition Law Compliance

CMA Penalties Guide, which includes a discussion of when compliance discounts of a penalty may apply.

By Adam Turteltaub

Few issues are more complex or more open to small things turning in to very big problems than gifts and entertainment policies.  Even the seemingly smallest gift to a government official can open up a very large can of words.

To bring perspective on this compliance challenges, we spoke with Meredith McMonigal U.S. Gifts & Conflicts of Interest Officer at the engineering firm WSP.  Meredith had recently been involved in a comprehensive review of the WSP gifts and entertainment policy.

Listen in on this podcast as she discusses:

* The importance of coordinating gifts and entertainment policies both globally and locally

* Managing differences between working with the private and public sectors

* The importance of starting with the global policy and ensuring consistency

* Ensuring that the policy will work operationally

* Viewing the policy as a work in progress so that it can evolve to meet unanticipated situations

* Using employee training to both share the policy and to learn about issues that you may not have considered

* Being mindful of client gift and entertainment policies, as well as for conflicts of interests

* The value of having a gift registry

* Using the registry to automate compliance auditing and monitoring

By Adam Turteltaub

Third party due diligence has become a staple for conducting business these days.  Whether they are concerned about complying with the FCPA or safeguarding your data, organizations are increasingly taking a longer look at their vendors and suppliers to better understand who is running them and how they operate.

In this podcast, John Arvanitis, Associate Managing Director, Compliance at Kroll shares his perspective on due diligence.  Listen in as she shares his insights including:

* In determining where to begin there is a need to balance who your third parties are, where are they located and what levels of risks exists

* The need to consider who is managing the relationship in the organization and whether they are on top of the risks

* Many organizations do not expend sufficient resources on due diligence

* Bad actors are getting more sophisticated, but strong due diligence should help unmask them

* The need for multi-dimensional screening

* The importance of not just collecting supplier responses to due diligence questionnaires but also validating them

* The ongoing importance of looking at the jurisdiction to determine the risk

* Scrutinizing the third party to determine not just that they signed off on your code of conduct but that they also have policies and procedures to follow it

* The importance of having a consistent and structured risk management program

By Adam Turteltaub

In 2007 the Federal Bureau of Investigation embarked on the formation of its compliance program.  It was a first for the FBI and, at the time, one of the few compliance programs in the entire Federal Government.

Patrick W. Kelley was selected to serve as Chief Compliance Officer in the brand new Office of Integrity and Compliance, and it fell to him to turn the vision into a reality.  Over the last decade the program has matured and grown very sophisticated.  Members of the FBI compliance team have now become regular attendees and speakers at SCCE events, sharing their considerable expertise.

In this podcast Pat shares what he learned from the program’s launch and the lessons for compliance professionals in both government and the private sector.  Listen in to discover:

* How the challenges of starting a compliance program at a governmental entity are often similar to those at a private sector company: where are you going to get staff, what’s the infrastructure look like, what the org chart look like, for example

* There is added complexity in the Federal government since, depending on how the compliance office is set up, Congress may need to be notified

* In governmental entities even a new program already likely has some elements already in place such as a written code of individual conduct

* While this is an asset, part of the challenge for a new program is determining how to integrate existing elements into a true compliance program

* The importance of top management support

* The need to get the general counsel’s office on board given that in government entities often they control the standards of conduct and ethics program

* Getting the infrastructure offices on board, especially finance, facilities and HR

* The important role played by the executives who manage the “business lines” of the agency

* Where the compliance office is put physically in the office can speak volumes and allows for greater informal interactions with leadership

* The difference in the roles of the Inspector General and the Compliance team

* How the FBI rolled out its program

* The importance of patience and the need to expect things to go slower than you might like

* Not being too wedded to a plan and being willing to revise when absolutely necessary

By Adam Turteltaub

On October 16, 2017 at the Compliance & Ethics Institute, Roy Snell, the CEO of the SCCE & HCCA, announced that the association’s Board of Directors had selected Gerry Zack as the incoming CEO.  He will take command of the association upon Roy’s retirement in 2019.

Gerry was selected after an extensive selection process that began with a 60-day period soliciting applications through the SCCE and HCCA websites.  Multiple rounds of interviews by members of the board’s succession committee then followed, ultimately leading to his selection as the next CEO.

Gerry has been Managing Director – Global Forensics at BDO for 3 years and CEO of Zack P.C. for 24 years.  He has over 30 years of experience in the prevention, detection, investigation and remediation of fraud, corruption, and noncompliance.

He has served on multiple non-profit and for-profit boards. His Association background includes 11 years as Academy Faculty for and serving as a Board of Regents member at the Association of Certified Fraud Examiners.  He has also held positions as the Chief Operating and the Compliance Officer at the Optical Society, a global organization that is more than 100 years old.

Gerry has been a loyal SCCE member since 2009 and even attended an SCCE Basic Compliance & Ethics Academy.

In this podcast, Gerry shares his experiences with SCCE, what led him to apply for the position as well as his extensive background in compliance and with professional associations.  He also shares how the transition process will proceed over the next year and a half, and his eagerness to further the work of the SCCE and HCCA.

By Adam Turteltaub

Why do employees go outside the company to blow the whistle?  Are they in it for the money?  Out for revenge?  Or, did someone just not listen to them?

Eric Havian, partner in the San Francisco office of Constantine Cannon, offers his perspective based on years of qui tam cases.  In this podcast he discusses:

* The impact of the SEC program on the number of whistleblowers

* Why the SEC whistleblower program is leading more people to come forward

* The increased belief by whistleblowers that their identity will be protected and they will not be retaliated against

* Money is rarely the motivating factor for blowing the whistle

* Frustration is much more of a factor: the employee has seen and reported something wrong, but no one has acted, they believe

* Thinking of whistleblowers as people who can’t do the wrong thing or walk away when they see something wrong

* Whistleblowers typically exhaust internal mechanisms before going to outside counsel

* Staying inside the company is largely driven by which compliance programs are trusted and which aren’t

* Why people are resistant to being told that they are doing something wrong or illegal

* The criticality of protecting employees from retaliation.

By Adam Turteltaub

Take a look at the Molson Coors compliance program, and you quickly notice that there is something special about it:  from start to finish it is integrated with the way and language of how the company does business.

The company, as part of business conversations, talks about its brew, which is not surprising given that it’s in the beer business.  But it may be surprising to see that the compliance and ethics program is about “living our brew.”  Listen in as Caroline McMichen, Vice President of Global Ethics and Compliance at Molson Coors, discuss how the compliance team worked to integrate corporate values and compliance with a broader corporate strategic approach.

You’ll hear how the compliance team used common values to join together behind the overall vision for the company.  This included keeping common language and graphics front and center throughout, as well as tying into the corporate branding for compliance, instead of having their own.

She also discusses the role of compliance in the company’s performance process, and the importance of making compliance messages a part of how employees work together as one company, not just a set of internally imposed requirements.

The net result is a workforce that is much more likely to see being compliant as possessing a skill that helps them in their work.

It’s worth a listen, with or without a beer.

By Adam Turteltaub

Internal investigations are always a hot topic, and this year they were the subject of a two-day, dedicated SCCE conference.  Al Gagne, the former Director of Ethics and Compliance of Textron Systems Corporation formed half of the pair of presenters that led the program.

In this podcast, Al shares his insights into how to handle the initial report of potential wrongdoing.   Handle it well, and the investigation begins on the right foot.  Handle it poorly, and the risks of missing something are significant.

Listen to Al as he shares advice on:

* How to handle the initial report in general

* Obtaining in the reporter’s own words and as descriptively as possible their concern about the alleged misconduct they report

* The importance of finding out whether the reporter was a witness or heard about the alleged incident second hand

* Assessing the credibility of the report

* The importance of knowing how recently the action occurred

* Determining if there were there other witnesses

* The desirability of having the reporter give his or her name

* What you should and shouldn’t promise the person making the report

* Understanding what the reporter wants, which is typically to have the misconduct stop

* How to discuss possible retaliation

* Keeping the reporter in the loop, and the advantage of being able to ask more questions of the reporter later

* The importance of advising the reporter not to share that they reported the incident with others

* Keeping control of the investigation

* The value of bringing in other internal experts and teams (internal audit and HR) judiciously

* Letting management know that an investigation is pending

* The risk of over-communicating the extent of an investigation

* Avoiding unnecessary harm

By Adam Turteltaub

At the 2017 SCCE Washington, DC regional meeting we were fortunate to be joined by Terence Stechysin, the Acting Director of Compliance of the Canadian Competition Bureau.  In a podcast recorded there, Terry provides a good reminder that when thinking internationally, US compliance officers need to remember that, as close as Canada is, it does have its own regulations and regulators.

In this podcast Terry explains:

* What the role of the Competition Bureau of Canada is

* Its similarity in role to the US FTC and the DOJ’s Antitrust Division and even state Attorney Generals offices

* Their commitment to innovation and competition

* The importance of focusing on business behavior, especially with partners, suppliers, and competitors

* The need to be aware that, when engaging in a business relationship, the organization needs to be aware of competition law

* Common problems such as agreeing to set prices, and who will bid on each contract

* The risks of trade association meetings

* The Competition Bureau’s guidelines on compliance programs, which are available here

* The importance of “shared compliance” — business, government and law firms working together

* The Bureau’s outreach to the community, including at the incubator stage.

Listen in to get better prepared to meet anti-competition challenges in Canada.