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Home Uncategorized

Monitoring: Building Bridges, Not Walls

Proactive assessments help close the gap between compliance and the rest of the company

by Jay Rosen
March 5, 2019
in Uncategorized
Man on blocked road contemplating brick wall

I am writing this column between one of the sessions at the American Bar Association (ABA) White Collar Crime (WCC) Conference in blustery New Orleans.

In this politically charged climate there has been a lot of discussion about building certain structures on our Southern border.  Whether or not our country has a “crisis” is a point that has been and continues to be hotly debated.  While walls are meant from keeping someone or something out — bridges are built to connect people.

Over the past decade a majority of Foreign Corrupt Practices Act (FCPA) matters have been resolved by either a Deferred Prosecution Agreement (DPA) or a Non Prosecution Agreement (NPA).  Over the past two years, the current administration has seen the Department of Justice (DOJ) come up with FCPA standards designed to bring more transparency and certainty for the business community. If we go back three years ago to 2016, in succession we saw the following policies rolled out by the DOJ:

  1. 2016 FCPA Pilot Program
  2. 2017 Evaluation of Corporate Compliance Programs
  3. 2017 FCPA Corporate Enforcement Policy
  4. 2018 anti-piling on and Safe Harbor in mergers and acquisitions (M&A)

This has also changed the position of monitoring and when it is chosen as the proper remedy to help a company find its moral compass. To some, this may sound like an aspirational goal, but I can tell you from working as a monitor, there is nothing like hearing feedback from your monitoring client that sounds something like, “Even though we did not want a monitor and only hired you because our regulator made us do it, we are completely sold on what you do and the value of monitoring.”

When a monitor hears this, it’s pure gold and makes everything worthwhile!

Let me jump back to the idea of DOJ transparency and certainty.   If a company finds a violation and self-reports to the DOJ or SEC, there is an expectation of a declination without a monitor. As this expectation is the new norm, one of the key factors now is that the regulators presume that the company’s ethics and compliance program, as it exists, is robust enough to have red-flagged this suspicious behavior.

If this is the new norm, what is there for a monitor to do?

Besides looking for career retraining, we in the monitoring field have found opportunities for companies to perform proactive independent assessments.  Now I know I may have thrown out a lot of jargon and government agencies to you, but I humbly ask you to join me on a journey where we will not only discus not all things anti-corruption, ethics, compliance and social responsibilities, but also will use the response, perspective and perception of how the events may look to a monitor.

I invite you to ask questions and join me on the bridge, as we build the connective tissue between the different silos of you company and your compliance program.  If you remember one thing from this column, let it be “bridges are good,” “walls are bad.”

This applies not only for your company, but in other arenas as well.

Well, it’s back into the conference room for me.  Hope the coffee’s hot, the chocolate cookies are gooey and the AC is on full blast.

Until next time,

Mr. Monitor

 


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Jay Rosen

Jay Rosen is Vice President, Business Development and Monitoring Specialist at Affiliated Monitors, Inc., the first company in the U.S. to focus on providing independent integrity monitoring and assessment services across a wide range of regulated industries and professions. Jay previously headed up Merrill Brink’s FCPA Investigations and Ethics and Compliance translation group. He has over eight years of experience assisting clients on cross-border investigations, as well as helping them localize their code of conduct and other mission-critical English documents for their global colleagues. For almost three years, Jay has co-hosted the #1 weekly FCPA podcast, “This Week in FCPA,” with Tom Fox. Tom and Jay recently launched a second podcast, “Popcorn and Compliance,” and Jay is also a commentator on the biweekly podcast, “Everything Compliance,” with Jonathan Armstrong, Tom Fox, Sarah Hadden, Matt Kelly and Mike Volkov.

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