FCPA Compliance and Ethics Blog

January 23, 2015

From NH to Hollywood and Compliance Lessons from the Twins-interview with Jay Rosen

Jay Rosen

  1. Where did you grow up? What was it like in NH?

I grew up in Manchester, NH which the largest “city” in Southern New Hampshire with 100,000 residents.  We are effectively a bedroom community of Boston, which informs my fervent support of all things Boston: baked beans and Red Sox included as well as all things New England: clam chowda and Patriots!

In high school, I decided I wanted to see free movies and get free records (now I am dating myself).  Thus I became the newspaper’s resident movie and music critic.  

  1. Where did you go to college, what did you study and why did you leave the family business?

I had had enough frozen mornings in New Hampshire, so I thought I would make my way south to The Wharton School at the University of Pennsylvania in Philly. There something happened along the way….  My roommate John Chadwick saw a flyer for UTV (University Television), the on-campus student TV station.  He dialed up the number and shoved the phone in front of me – I stumbled and mumbled and said, “I would like to work at the station…”  

  1. What took you to LA? Describe your job progression.

After rising from production assistant (“PA”) to Station Manager three years later, I decided this entertainment thing was pretty cool. This led to Hollywood where I got my start working in the mail room at Triad Artists. In less than 6 months, I was being promoted to be an assistant on a Literary Agent’s desk. Literary agents represent .writers and directors, while talent agents represent actors.   Right before my promotion, I received a call one morning at 6:00 AM. My new boss had accepted a job at a competing agency and asked if I wanted to join him.

First ethical lesson.  I called my Dad and asked him whether I should go.  He said that Triad had invested time and resources in me and suggested I stay.  Then I called my Uncle Charles, who worked for Ogilvy & Mather.  Charles said, “Pack your bags.”  So I went to work that day waiting for my new boss to submit his resignation.  Only problem was there was no one for him to quit to.  Before I knew it, it was 2PM and still no call.  Finally he calls.  In less than four hours, I train my replacement, pack a banker’s box with my belongings and am escorted out of the office by a security officer.  Welcome to the corporate world!

I continued on with the new agency and found my way to 20th Century Fox where I had a wonderful mentor, Kimberly Cooper, who knew that I ultimately wanted to produce and write screenplays. This led to my brief career as a screenwriter where my writing partner and I got paid to write, rewrite and then paid not to write at all.  During our creative partnership we wrote 10 screenplays, but unfortunately we were never able to get our projects on the big screen.  My last fling with Hollywood was working as the assistant to the executive producer on “The Perfect Storm,” the film based on the novel by Sebastian Junger, directed by Wolfgang Peterson and starring George Clooney and Mark Wahlberg (Yes Rebecca, I purposely name-checked all these peeps just for you). 

So I joined a middle market investment bank in Los Angeles which was started by former Houlihan Lokey and Merrill Lynch investment bankers.  As this was a startup, in addition to my business development duties, I also received a crash course on investment banking.  I helped the firm close transactions in the Consulting, Healthcare, Health Clubs, Restaurants and Recreation and eDiscovery sectors.  All was going well until the fall of 2008.  With the market crashing, and 8 month old twin daughters, now was not a good time to get downsized…. or was it?    

  1. How did these jobs lead you to translation services?

Life has a funny way of teaching you the skills and preparing you for the next steps in your career.  Even though you may have little to no awareness that this is happening at the moment.  As I needed to find my next gig, I reached out to my virtual network on LinkedIn.  One of my vendors at the investment bank saw that I had an entertainment background.  He and his firm wanted to use a virtual data room (VDR) as a green technology solution to securely share screenplay assets in a studio environment. When I started at the office, I learned that this company made the bulk of their revenue from selling translations.  I soon began to absorb the legal translation sale process from my office mate.  I next became involved with an end-to-end foreign language eDiscovery solutions called PEARL.  One of the partners said that PEARL should be used for every FCPA matter.   I rushed home.  Googled “FCPA” and decided that the Fairfax County (home of my wonderful in-laws) Park Association was not the FCPA I was looking for… and then, two entries down the angels sang and I was bathed in the most incredible golden light.  I had discovered the four most beautiful letters in the alphabet FCPA, the Foreign Corrupt Practices Act.  

  1. How has your view of translation services evolved from a reactive product to a preventative tool?

For me, it was quite intuitive.  I posited that most FCPA matters, whether they were investigations, monitorships or preventative mandates would require some form of translations as these matters are global in nature. While Merrill has had the fortune to work on some major “above the fold” multinational FCPA investigations, transnational litigation and global IP litigation matters, I felt that there must be more we can do from a proactive perspective.  Our clients began to ask us whether or not we could assist them with localizing their Code of Conduct as well as other global companywide communications.

I began to focus on a second front of not only helping our clients increase efficiency and save costs on their investigations, but I also began collaborating with my Merrill colleagues to reach out to our clients and educate them on the benefits or proactively using translations as an insurance policy to inoculate and insulate the Company’s anti-bribery and anti-corruption exposure with qualified, outsourced, independent translation solutions.  Although many companies try to leverage existing internal translation solutions – such as foreign language fluent assistants, overseas associates or other on-the-ground personnel (forensic analysts and document reviewers), they fail to understand the risk they incur by using non-trained, translations resources who are not able to attest to and certify the accuracy of their translation work product.  Beside incurring any internal and opportunity costs by avoiding professional translation resources, they potentially expose themselves to a greater risk. 

  1. You have written many ethics lessons you have learned from your daughters? Can you describe their similarities and differences AND what parts of you or Rebecca are in each.

Michaela and Millie were born 10 weeks premature on Sunday, February 3, 2008.  The date of the Patriots first Super Bowl loss to the New York (Football) Giants.  Michaela came out first and then it seemed like an eternity (4 minutes) until Millie was untangled from both umbilical cords and finally emerged.  They went through a 41-day stay in the NICU and miraculously were discharged on the same day! Michaela, being the oldest, quite often takes the lead and asks for and usually gets whatever she wants.  She is the plotter of the crimes and Millie executes.  Millie is definitely a people pleaser and wants to make sure that not only her older sister, but her mom and dad are happy and content.

Millie is often concerned with fairness and this is something that she definitely gets from Rebecca.  Michaela is more of the comedienne and quite often acts goofy, which is a reflection of me.  Depending on who you ask and what day it is, people say Millie has my pudgy Rosen cheeks and Michaela has Rebecca’s fair complexion and straight hair.  All I know is that Rebecca and I are so fortunate that we had the help of our doctors to conceive and bring these two wonderful girls into the world.

Jay Rosen can be reached at jay.rosen@merrillcorp.com.

The other day we were walking in our second home, the Happiest Place on Earth, Disneyland and Millie was casually strolling with her arm loosely draped over her sister’s back.  I looked a Rebecca and she said, “Either we are doing something right or those two girls just love each other”.  We both look forward to learning more lessons from them as the days and years go by.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015

September 3, 2014

Language as a Long Term Compliance Strategy

LangaugeI constantly rely on Jay Rosen and his team at Merrill Brink for translation and other language related services in the compliance portion of my work. (Yes I do practice law and compliance for a living; I blog for gratis.) For not only am I required to help evaluate documents in a foreign language which need to translated into English but often I need a foreign language version of compliance related documents that I create, from third party questionnaires to contracts to Foreign Corrupt Practices Act (FCPA) training materials. While I still tend to think of language as a tactical issue, Jay has long striven to have me see it as part of a businesses overall strategy.

I think I may have finally seen the light that Jay has been preaching to me over the past few years when I read an article in the September issue of the Harvard Business Review (HBR), entitled “What’s Your Language Strategy?” by Tsedal Neely and Robert Steven Kaplan. The authors posit that language should bind not only your company’s global talent pool but also your company’s vision. After concluding the article, I now understand how language is a strategy to help inform your compliance program as well. This is because just as “Language pervades every aspect of organizational life” the authors believe that companies “often pay too little attention to it in their approach to talent management.” I would add that is also true in the compliance function.

The authors believe that problems revolve around potential “blind spots regarding language.” They write that company leaders pay too little attention to the role of language when “hiring, training, assessing and promoting employees. This can lead to miscommunication and friction, especially among team members who collaborate across borders.” While the authors point that a company’s competitiveness that may suffer, I would suggest that a company’s compliance function could also suffer. The authors believe that a company should align its language strategy with its overarching priorities. Further, by building “language skills and cultural awareness throughout your organization in order to acquire and develop the kind of talent you need to compete globally and locally.” The authors believe that by paying attention to this issue, your company can potentially turn “vulnerability into a competitive strength.”

The authors identify five key points which a company should evaluate regarding language. I would also add they relate directly to any international company’s anti-corruption compliance function whether under the FCPA; UK Bribery Act or other anti-bribery regime.

Hiring and Training

Here companies need to understand how candidates might come across in the interview or other pre-employment evaluation process. While a candidate with multiple language fluency may overshadow deficits in other critical areas, it may also be a problem because as an evaluator, “you may need to accept some limitations on language capabilities and be prepared to provide training to meet both global and local language needs.” But even if you get pass this first hurdle the authors identify a follow up problem in this area; that is, after hiring and/or promotion. They state, “Another blind spot is a tendency to over rely on external lateral hires with a certain degree of language skill to fill midlevel roles rather than hiring and grooming outstanding junior candidates with the capacity and motivation to learn new languages. While the latter approach may initially take more time, companies often find that entry-level hires ultimately become their best leaders, because they have been trained from an early stage in company culture and practices. Defaulting to lateral hires can make it more difficult to build a cohesive culture—those recruits have been trained elsewhere and may have trouble assimilating.”

Evaluating Talent Accurately

Even if your company does improve its entry level hiring practices and provide training to assist new employees in their language skills, you still need to make accurate performance evaluations. Here companies may get into trouble because “Language agility does not necessarily spell high performance.” The authors point to the need for a robust process to assess skills and attributes which allows a company to “look beyond verbal agility when gauging performance. It’s a reality check, a way to make sure that you and other leaders are not unduly swayed by fluency.”

Rethinking the Role of Expatriates

One of the key areas in the compliance field is to develop local compliance talent and expertise. This is not only because “expatriates may not be familiar with the local language, culture, and business practices, they can bring knowledge of organizational culture along with an understanding of the company’s products, processes, and systems.” One of the roles of any compliance manager, particularly an ex-pat is “to focus on developing local talent and ensuring that indigenous professionals begin to play leadership roles in the local businesses.” Equally important is to “think about the people you’re choosing to send abroad. To build a strong team of local leaders, it’s critical to give expatriate assignments to your best people—not just to solid contributors who happen to have the right language skills and are more easily dispensed with at home. Otherwise, you may find that your firm’s global offices fail to attract, develop, and retain the strong indigenous talent they need for high performance.”

Managing Communications on a Global Team

Most of the company’s I have worked at hold all their communications in English-language on a company wide basis. Of course I thought this was great. But the authors note that “managers often unwittingly position native speakers of a lingua franca as “winners” within the firm; consequently, nonnative speakers experience a substantial loss of power and status. If companies don’t take such issues into account, they can cause otherwise talented and engaged professionals to underperform and even withdraw.”

The authors believe that managers need to understand which of their employees are comfortable with the second-language proficiency and those who may not be so comfortable. They provide specific guidance as follows, “Global managers must deal directly with such issues to promote productive global cooperation. They must be sensitive to how employees of varying language proficiency are interacting. The goal is to make it easier for native and nonnative speakers to establish trust and communicate effectively. Managers’ observations should include the following: Who attends meetings? Who speaks up? Are the best employees contributing, or is language getting in the way? It’s then important to facilitate meetings and calls so that nonnative and native speakers get equal airtime. Often this means coaching primary-language people to speak less and second-language people to speak more. It also involves setting clear agendas up front, considering the mode of communication, and thinking through meeting choreography in advance.”

Building Cultural Awareness

The authors conclude by reminding us that language fluency does not always equate to cultural fluency, as “too often leaders underperform because they fail to adapt their management styles and practices to fit a multicultural environment. For them, understanding the cultural background of each team member, the role of the company, its products and services, and the customers it serves within various cultural and regional contexts is as essential as learning to conjugate new verbs.” They believe that “Managers should be held accountable that language and cultural skills are developed throughout their organization.”

The authors’ piece is chock full of ideas, insights and issues for a Chief Compliance Officer (CCO) or compliance practitioner. Any company doing business internationally is going to have the issues that the authors discuss in their article. The compliance function has all of these issues in spades because if you need to consider the FCPA, it is because you are doing business internationally.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

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