FCPA Compliance Report

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this edition of the FCPA Compliance Report, Tom welcomes back Mike Lindsey to discuss the Corporate Transparency Act. In a first for the FCPA Compliance Report, after the episode was recorded but before it was posted, the CTA was declared unconstitutional by a Trump appointed US District Judge. We recorded an addendum to consider this court decision invalidating the law.

Mike Lindsey, a distinguished corporate and transactional lawyer based at Steinbrecher & Span, has built a solid reputation as an authority on the CTA. Lindsey’s insights into the CTA are influenced by his emphasis on privacy and data security, highlighting the risks correlated with a centralized database potentially accessible via the dark web. From his perspective, the CTA serves as a critical federal law designed to increase transparency around beneficial ownership of corporations and inhibit illegal activities such as money laundering, tax evasion, and fraud. However, Lindsey also questions its effectiveness in disclosing ownership by entities like the Iran Revolutionary Guard. Despite this, he sees the CTA as a ground-breaking move for privately held companies, requiring them to report beneficial owners, something uncommon among small businesses in the United States. Ultimately, Lindsey views the CTA as an essential measure towards impeding financial crimes and enhancing accountability in corporate structures.

We also discuss the trial court decision in the case of the National Small Business Union, which invalidated the CTA and what it might mean for the law going forward. 

Key Highlights:

Resources:

Mike Lindsey on LinkedIn

Steinbrecher & Span

National Small Business Union

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this special Thursday edition of the FCPA Compliance Report, Tom welcomes Erica Salmon Byrne, Chief Strategy Officer and Executive Chair, at Ethisphere to discuss the announcement of the 2024 World’s Most Ethical Companies Designations and the new Ethics Premium.

Erica Salmon Byrne is a renowned figure in ethical business practices, recognized for her significant role in the annual announcement and recognition of the world’s most ethical companies. Byrne views this list as a crucial acknowledgment of companies globally that are making a positive impact, with representation across 20 countries and 44 industries. Her experiences in leading changes to the program’s methodology, such as introducing a third-party management category and a heightened focus on governance and culture, have shaped her perspective on the continuous evolution and improvement of the evaluation process. She sees the list as a valuable tool for companies to demonstrate their commitment to ethics and compliance and as a source of inspiration for others in the compliance community to strive for ethical excellence.

Key Highlights:

Resources:

Erica Salmon Byrne on LinkedIn

Ethisphere

World’s Most Ethical Companies for 2024

Tom Fox

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Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. In this episode, Tom Fox welcomes Seth Whitelaw who has worked in life sciences compliance for over 30 years.  

Seth Whitelaw is a seasoned lawyer and compliance officer with a specialization in drug law, particularly within the life sciences industry. He has a unique perspective on regulatory guidance updates in healthcare compliance, shaped by his experiences in developing compliance programs and teaching law. Whitelaw believes that despite technological advancements in healthcare compliance, the role of compliance officers remains crucial. He views them as a necessary check and balance within companies, akin to the role of government in society. Whitelaw emphasizes the importance of addressing industry criticisms and regulatory updates to prevent distractions and ensure companies can focus on their primary objectives. He is a strong advocate for compliance officers, recognizing their vital role in helping companies bring safe and effective products to market, thereby adding value to the companies they serve.

 Key Highlights

·      Tailored Compliance Consulting for Mid-Sized Companies

·      Evolutionary Alignment for Effective Compliance Programs

·      Data-Driven Healthcare Compliance Updates and AI Integration

·      Enhancing Life Science Compliance with AI

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Seth Whitelaw on LinkedIn

Whitelaw Compliance Group

Tom Fox

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Welcome to the award-winning FCPA Compliance Report, the longest running podcast in compliance. In this episode, Tom Fox welcomes back Michael Volkov as they take a deep dive into the ABB, Albemarle and SAP FCPA enforcement actions to try and unpack the DOJ’s pivot away from heavy penalties for recidivists to prioritizing self-disclosure above all else.  

Volkov's perspective on the Department of Justice's (DOJ) FCPA enforcement actions is both critical and analytical, shaped by his extensive experience. He underscores the necessity of transparency and explanation in the factors considered by the DOJ, highlighting its significance to practitioners in the field. Volkov also recognizes the shift in DOJ policy towards data-driven compliance, requiring companies to provide data to substantiate their conclusions and demonstrate their compliance efforts. He further notes the evolving landscape of voluntary disclosure and remediation, suggesting these areas are now pivotal in the DOJ's enforcement approach. Volkov's insights reflect a nuanced understanding of the changing dynamics in FCPA enforcement and the imperative for companies to adapt to these shifts.

 Key Highlights:

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Volkov Law Group

Corruption, Crime and Compliance

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes back Nick Gallo, co-CEO at Ethico, to discuss its Ethics and Compliance Optimization System.

Nick Gallo, co-CEO of Ethico, is a seasoned professional with a robust background in ethics and compliance, and a key player in the development and promotion of Ethico’s ethics and compliance optimization system. Gallo’s perspective on the topic of ethics and compliance optimization systems is shaped by his belief in a comprehensive, integrated approach to managing compliance efforts. He sees this system as a next-generation tool that interacts with other data pools, generating more analytics and insights. His experience has led him to advocate for a centralized repository for various types of business information, which can be accessed by compliance teams for better visibility across all data silos within an organization. Gallo also stresses the importance of automation and integration to eliminate manual and repetitive tasks, allowing compliance professionals to focus on more strategic and value-added activities.

Key Highlight:

Resources:

Nick Gallo on LinkedIn

Ethico

Ethics and Compliance Optimization System

Tom Fox

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes Joshua Drew, a Member of Miller & Chevalier who practices in the firm’s white collar and FCPA practice areas.

Joshua Drew, a seasoned attorney with a rich background in the Department of Justice (DOJ) and the Foreign Corrupt Practices Act (FCPA), recently joined the litigation group at Miller & Chevalier. His perspective on joining the firm is largely influenced by his admiration for the team’s expertise, having interacted with several of the firm’s lawyers during his tenure at Vimple.com, now Veon. He also found the firm’s practice areas, particularly FCPA work and general litigation, to be in perfect alignment with his experience. Moreover, he appreciated the firm’s smaller size, strategic focus, and subject-matter expertise, making his decision to join Miller & Chevalier a no-brainer.

To learn more about Joshua Drew’s journey and his insights, join Tom Fox and Joshua Drew on this episode of the FCPA Compliance Report.

Key Highlight:

Resources:

Joshua Drew on LinkedIn

Miller & Chevalier Chartered

Tom Fox

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. Today, I visited Dr. Karen Jacobson, a renowned expert in organizational leadership and communication. She provides guidance for compliance professionals around leadership.

Dr. Karen Jacobson is a seasoned professional with a rich background in healthcare, public speaking, and business consulting. Her perspective on effective leadership and communication in diverse workplaces is shaped by her experiences in war, the military, healthcare, and even her time as a competitive amateur ballroom dancer. Jacobson believes that effective leadership requires understanding and adapting to the needs of different audiences, tailoring communication to resonate with them, and being culturally aware. She emphasizes the importance of leaders adapting their language and communication style based on the audience’s behavior style, emotions, and level of understanding and learning about the customs, language, and etiquette of the cultures they interact with.

Join Tom Fox and Karen Jacobson on this episode of the FCPA Compliance Report to delve deeper into this insightful perspective.

Key Highlights:

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Karen Jacobson

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes Professor Karen Woody and they take a deep dive into the Segway case from Delaware.

The bottom line is that proving bad faith and breaching the duty of oversight remains a challenging task. The conversation delved into the fiduciary duties of directors and officers, specifically the duty of care and the duty of loyalty. The duty of care requires fiduciaries to be well-informed about material information and exercise prudence in decision-making. On the other hand, the duty of loyalty necessitates undivided interests towards the corporation, with no conflicts of interest or self-dealing.

The duty of oversight, derived from the landmark Caremark case in 1996, is an extension of the duty of loyalty. It requires the establishment of information reporting systems and compliance programs to inform senior management and the board about potential issues. There are two prongs to bring a duty of oversight claim: the systems or information prong and the red flag prong. The former focuses on the absence or ineffectiveness of systems, while the latter deals with the conscious disregard of red flags.

However, proving bad faith and breaching the duty of oversight is a high bar to clear. The Caremark standard is challenging to meet, and most cases are dismissed on a motion to dismiss. The recent Segway case, following the McDonald's case, indicated a pushback against lowering the bar for officers compared to directors. The interpretation of the duty of oversight remains stringent, emphasizing the need for strong evidence of bad faith.

The conversation concluded by acknowledging the importance of context and the specific facts of each case. While there has been a slow march of weakening the Caremark standard in some cases, the facts in those instances were particularly egregious. The recent cases discussed in the episode did not exhibit the same level of egregiousness, leading to a retraction and a reaffirmation of the high bar set by the Caremark standard.

Resources:

Karen Woody on LinkedIn

Tom Fox

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes Jay Rosen who discusses the recent FCPA enforcement action involving the software giant SAP.

Jay Rosen is a seasoned compliance professional with a deep understanding of the SAP FCPA enforcement case. His perspective on the topic of SAP’s FCPA enforcement case and the importance of cooperation and self-disclosure is shaped by his belief that self-disclosure is paramount in any FCPA investigation or enforcement action. He points out that SAP did not initially self-disclose, but began to cooperate only after investigative reports were made public in South Africa. Despite this, Rosen acknowledges SAP’s commendable efforts in providing regular, prompt, and detailed updates to the fraud section, producing relevant documents, and undertaking extensive remediation actions. He underscores the importance of conducting a root cause analysis, implementing data analytics, and enhancing compliance programs and internal controls, asserting that companies can recover if they follow these steps and use data-driven analytics to counterbalance any negative facts. Join Tom Fox and Jay Rosen as they delve deeper into this topic on this episode of the FCPA Compliance Report.

Key Highlights:

Resources

Jay Rosen on LinkedIn

Tom Fox

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Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom Fox welcomes Frank Orlowski.

Frank Orlowski is a seasoned professional with a wealth of experience in managing emerging markets in the pharmaceutical industry, having spent over 25 years at Pfizer Pharmaceuticals. His extensive knowledge, particularly in South America, Middle East Asia, and Eastern Europe, where he faced difficulties in compliance, controls, and adhering to US accounting regulations, has shaped his perspective on managing emerging markets. Orlowski emphasizes the importance of understanding different cultures, regulations, and geopolitical issues when working in these markets. After retiring from Pfizer, he founded the Ation Advisory Group, where he leverages his expertise to assist companies in commercializing products in the life science industry. Join Tom Fox and Frank Orlowski on this episode of the FCPA Compliance Report podcast to gain more insights into managing emerging markets in the pharmaceutical industry.

Key Highlights:

Resources:

Frank Orlowski on LinkedIn

Tom Fox

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