FCPA Compliance and Ethics Blog

August 28, 2018

Why Isn’t Michael Cohen Getting a Cooperation Agreement? (Spoiler: He Probably Is) (Part One)

Filed under: Uncategorized — tfoxlaw @ 8:21 am


Dark room for interrogation. 3d renderingMuch was made this week of the fact that Donald Trump’s lawyer Michael Cohen pleaded guilty without a written cooperation agreement.

He pleaded guilty to multiple federal offenses, including tax fraud, campaign finance violations and bank fraud. The guidelines range agreed to in the plea deal is around 4 to 6 years.

Now, it’s true that his plea agreement did not have a cooperation provision in it. In fact, it said

The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines range set forth above is warranted. Accordingly, neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein.

Even though the plea agreement said that neither party would seek a downward departure (even for assistance), it’s still very possible that Mr. Cohen will get cooperation credit during the whole sentencing process.

Let’s explore how that could happen.

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August 3, 2016

Does an FCPA Violation Require a Quid Pro Quo? Further Developments in the JP Morgan “Sons & Daughters” Case

Filed under: Uncategorized — tfoxlaw @ 8:01 am

Excellent and succinct analysis.

GAB | The Global Anticorruption Blog

One of the Foreign Corrupt Practices Act cases we’ve been paying relatively more attention to here on GAB is the investigation of JP Morgan’s hiring practices in Asia (mainly China), in connection to allegations that JP Morgan provided lucrative employment opportunities to the children of powerful Chinese officials–both in the government and at state-owned enterprises (SOEs)–in exchange for business. A couple weeks back the Wall Street Journal published a story about the case, indicating that the government and JP Morgan were likely to reach an agreement soon in which the firm would pay around $200 million to settle the allegations. (The WSJ story is behind a paywall, but Thomas Fox has a nice succinct summary of both of the case generally and of the recent developments reported by WSJ,)

I’ll admit that my first reaction, on seeing the WSJ report, was skepticism that we were actually on the…

View original post 1,914 more words

August 4, 2015

Social Media Week Part II – Sharing in the Compliance Function

Social Media 2I continue my exploration of the use of social media as a tool of doing compliance by looking at some concepts around the sharing of information. In a recent podcast on Social Media Examiner, entitled “Sharing: The Art and Science of Social Sharing”, podcast host Michael Stelzner interviewed Bryan Kramer, a social strategist and author of the book “Shareology: How Sharing is Powering the Human Economy”. Kramer talked about several concepts that I found particularly useful for a Chief Compliance Officer (CCO) or compliance practitioner to think through when considering the use of a social media strategy in a best practices anti-corruption compliance program, under the Foreign Corrupt Practices Act (FCPA), UK Bribery Act or some other compliance regime.

Kramer’s book Shareology is a study of how, what, where, when and why people and brands share. For this book, Kramer conducted more than 250 interviews with executives, marketers and social media people, as well as professors of linguistics, psychology, sociology and so on, with the question “why people share” in mind.

The answer came down to one thing: connection. He found that “People all have the desire to reach out and connect with other people, whether it’s through sharing content and having someone reply back or by sharing other people’s content and helping them out.” From this research, Kramer identified six types of people who share:

  • Altruist: Someone who shares something specific about one topic all the time.
  • Careerist: Someone who wants to become a thought leader in their own industry, so they can see their career grow.
  • Hipster: Someone who likes to try things for the first time and share it faster than everyone else.
  • Boomerang: Someone who asks a question so they can receive a comment only to reply.
  • Connector: Someone who likes to connect one or more persons to each other.
  • Selective: This is the observer.

I find all of these categories to be relevant to a CCO or compliance practitioner in considering the use of social media in their compliance program. All of these can describe not only the reasons to use social media but they can also help you to identify who in your organization might be inclined to use social media and how it can facilitate your compliance program going forward.

The Altruist, Hipster and Careerist speak to how a CCO or compliance practitioner can be seen in getting out the message of compliance throughout your organization. Whichever category you might fall into, it is still about the message or content going forward. I find nothing negative in being seen as one or the other if your message is useful. Even if you are my age, there is nothing wrong with incorporating a little Hipster into your communication skills. As my daughter often reminds me, Dad you are so uncool that you are retro, but that is cool too. Applying that maxim to your compliance regime, if you can communicate in a manner your workforce sees as interesting or even hip, it may well help facilitation incorporation of that message into their corporate DNA.

I found the Boomerang, Connector and Selective categories as good ways to think about how your customer base in compliance (i.e. your employees) might well use social media tools to communicate with the compliance function. The use of social media is certainly a two-way street and you, as the compliance practitioner, need to be ready to accept those communications back to you. Indeed some comments by your customer base could be the most important interactions that you have with employees as their comments or questions could lead you to uncovering issues which may have arisen before they become Code of Conduct or FCPA violations. More importantly, it could allow you to introduce a proscriptive solution which moves your program beyond even the prevent phase.

Kramer also has some insights about the substance of your social media message. Adapting his insights to the compliance field, I found a key message to be that the problem is that companies do not write the way they speak, and don’t speak the language of their employee base. In many ways, compliance is a brand and Kramer believes that “brands and the people representing those brands need to change their language. If they focus on the title and the quality of the content, among other things, it’ll resonate more with their audience.” He also advocates using the social media tools and apps available to you. He specifically mentions Meerkat and Periscope, Snapchat, memes and/or videos to raise the value of the content. He was quoted as saying, “If you have a blog and there are no visuals, you might as well shut it down.”

It would seem the thesis of Kramer’s work is that sharing is a primary method to communicate and connect. In any far-flung international corporation this is always a challenge, particularly for discipline which can be viewed as home office overhead at best; the Land of No populated by Dr. No at worst. Kramer says that you should work to hone your message through social media. Part of this is based on experimenting on what message to send and how to send it. Yet another aspect was based upon the Wave (of all things) where he discussed its development and coming to fruition in the early 1980s. It took some time for it to become popular but once it was communicated to enough disparate communications, it took off, literally. Kramer noted, “It’s the same thing with social media. On social media, we think something will go viral because the art is beautiful or the science is full of deep analytics, but at the end of the day it really takes time to build the community.”

This means that you will need to work to hone your message but also continue to plug away to send that message out. I think the Morgan Stanley Declination will always be instructional as one of the stated reasons the Department of Justice (DOJ) did not prosecute the company as they sent out 35 compliance reminders to its workforce, over 7 years. Social media can be used in the same cost effective way, to not only get the message of compliance out but also to receive information and communications back from your customer base, the company employees.

Once again please remember that I am compiling a list of questions that you would like to be explored or answered on the use of social media in your compliance program. So if you have any questions email them to me, at tfox@tfoxlaw.com, and I will answer them within the next couple of weeks in my next Mailbag Episode on my podcast, The FCPA Compliance and Ethics Report.

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

July 3, 2015

IN CONGRESS, July 4, 1776

Filed under: Uncategorized — tfoxlaw @ 8:42 am

July 4Ed. Note-I hope that every American, at least once per year will take the time to read the foundational document of our country, the Declaration of Independence. What Thomas Jefferson wrote and his fellow signers agreed to still ring as true today as it did some 239 years ago. So to honor American, today I post the text of entire Declaration of Independence. I would ask that you take some time over this weekend to read it. 

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The 56 signatures on the Declaration appear in the positions indicated:

Column 1
Button Gwinnett
Lyman Hall
George Walton

Column 2
North Carolina:
William Hooper
Joseph Hewes
John Penn
South Carolina:
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton

Column 3
John Hancock
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton

Column 4
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
Caesar Rodney
George Read
Thomas McKean

Column 5
New York:
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris
New Jersey:
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark

Column 6
New Hampshire:
Josiah Bartlett
William Whipple
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
Rhode Island:
Stephen Hopkins
William Ellery
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
New Hampshire:
Matthew Thornton

May 19, 2015

A CCO Job Function: Managing Talent

Garo YepremianGaro Yepremian died this past week. For anyone who grew up watching National Football League (NFL) games in the late 1960s or 1970s; this was a name quite familiar to you even if you had trouble pronouncing it. Yepremian was a left-footed field goal kicker who went from the heights of glory such as once kicking six field goals in one game and ending the NFL’s longest game; the Miami Dolphins-Kansas City Chiefs 1971 playoff game which he won with a field goal in the second sudden death overtime. Unfortunately it is not these achievements that he is best known for. That rather ignominious distinction was when he had a field goal blocked in the 1973 Super Bowl against the Washington football team; then picked it up and tried to pass it only to have it slip from his hands into the arms of Mike Bass who ran it in for a touchdown. The score changed a one-sided game from 14-0 Dolphins to 14-7 and put their undefeated season on the line for the remainder of the game. Fortunately for posterity and Yepremian, the Dolphins held on to complete the NFL’s only undefeated season.

I thought about Yepremian, his gaffe and the fact he grew up in Cyprus playing soccer when I read a recent article in the Financial Times (FT), entitled “Game of talents: management lessons from top football coaches”, where Mike Forde and Simon Kuper wrote about how “football [soccer for you Yanks reading this blog] coaches grapple with egos, tantrums and rivalry. Business could learn a lot from them.” This is because talent management is a key component of any successful organization and none more so than on a soccer team where “Football managers are, above all, talent managers.” The article had some interesting insights for the Chief Compliance Officer (CCO) or compliance practitioner which I believe could be helpful when dealing with large egos found in any business organization.

  1. Big talent usually comes with a big ego. Accept it. I grew up professionally in the private practices world of a law firm where big egos not only existed but also thrived and were perhaps even cultivated. This is not always true in the corporate world. The authors believe that “managing difficult people is the best test of a good manager.”
  2. Look for big egos that have ‘gotten over themselves’. At some point we all grow up. In the business world, just as in sports, “some players underperform early in their careers because they are immature.” Maturity can lead to players “accept their limits and become coachable.”
  3. Single out and praise those who make sacrifices for the organization. Reward those who might be willing to make a personal sacrifice. If you do, you behavior as a leader will be noticed and others in the business may well do the same.
  4. The manager shouldn’t aspire to dominate the talent. In soccer “Talent wins matches…Successful managers accept this. They don’t try to emphasise their leadership by dominating talent.” As a CCO, you should not only work to help the business folks succeed but let them take the glory if a big deal is closed.
  5. Ask talent for advice – but only for advice. While it seems self-evident, it always bears repeating if you take someone’s advice to craft a solution, that person will then be personally invested in the success of that solution. The authors quoted David Brailsford, general manager of the Team Sky cycling team, for the following, “We all perform better if we have a degree of ownership of what we do.”
  6. The manager’s job isn’t to motivate. “Great talent motivates itself.” The converse of this means that if you have top-notch sales talent, part of your job as a CCO or compliance practitioner is “not to demotivate them”. But more than simply not ‘demotivating’ your job should be to encourage “long-term commitment: sustained motivation over time.”
  7. Talent needs to trust each other more than it needs to trust the manager. This directly relates to the culture you set. If the only way for employees to succeed is to steal and cheat from their co-workers, you will have a toxic environment. Think of this in the context of your Foreign Corrupt Practices Act (FCPA) investigation protocol; if your goal is to skin some employee to save the company, you will not have much credibility left with your other employees.
  8. Improve the talent. Unfortunately, most managers spend most of their time managing incompetent employees. The authors believe this is a wasted opportunity as most top talent “have a gift for learning and a desire to improve. That desire often drives their career choices.” For a CCO this means you need to provide such opportunities to those on your compliance team. But think about taking this concept out into the workforce. What if you could offer a top sales person or executive a chance to not only learn something but also advance their career by a rotation through the compliance department or a signature project they could lead?
  9. 99% per cent of recruitment is about who you don’t sign. Here the message is to use your background due diligence to make sure that that ‘someone’ is the right person in the right situation because “Introducing a weak or undisciplined player [employee] can damage the standards and culture.”
  10. Accept that talent will eventually leave. “Few talented people are looking for a job for life.” Indeed in the compliance arena, since there are no trade secrets around anti-corruption compliance, the skills a compliance practitioner uses can be easily translated into another company. I often think about Jay Martin, the CCO of BakerHughes Inc. (BHI) in Houston. He is now on his third generation of compliance practitioners who work under him. While they are at BHI they have the chance to work under and for one of the top in-house compliance practitioners around and for a company that has a robust compliance program. They work very hard while they are at BHI but they get great experience, a great resume entry and a great reference from one of the top compliance practitioners around. If you are a CCO you might consider the BHI model.
  11. Gauge the moment when talent reaches its peak. In the sports world, the only person who wins every time (eventually) is Father Time. While that may not be as true in the corporate world, burnout is true. I went through it in my 40s as a trial lawyer and many others do as well. If you are a CCO and see reduced enthusiasm or commitment in an employee this may be the reason. Would you consider a sabbatical for the employee? How about a plumb overseas role to rekindle the passion? As a leader, you need to recognize this issue and use your leadership skills to address the situation.

The authors note, “Talent management has been a business obsession at least since 1997, when the consultancy McKinsey identified a “war for talent.”” As a CCO you should certainly consider these issues in managing your compliance function. However I believe the concepts laid out by Forde and Kuper work for the broader corporate world as well. If you are going to use you influence throughout the organization, you should consider incorporating these techniques into your skill set.

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

May 14, 2015

Compliance Risk Logic’s Mastering Compliance in International Markets Conference

Filed under: Uncategorized — tfoxlaw @ 12:01 am

Compliance Risk LogicIf you are in the Far East there is now a master conference centered around the top compliance practitioners in the region. Next month, from June 8-9, Compliance Risk Logic is putting on its a conference in Singapore, entitled “Mastering Compliance in International Markets. Maija Burtmanis and her team have put together a great program and the list of speakers is simply stunning. It includes the following Chief Compliance Officers (CCOs) and senior compliance folks: Howard Lin, Eli Lilly; Abdul Luheshi, Johnson and Johnson, Masood Ahmed, Sanofi; Karen Eryou, UCB Pharma, Redentor Romero, Teva Pharmaceuticals; Matthew Griffiths, Shell, and a host of other luminaries in the field of Foreign Corrupt Practices Act (FCPA) and UK Bribery Act anti-corruption compliance programs. Even if you live outside of Singapore, the compliance talent at this event will rival any other event in the Far East.

Some of the panels and topics for discussion include: Challenges for a Compliance Officer Operating in the International Markets; Perspectives on “Risk Management” &Effective Governance from the C-Suite;; A review of the differences in the delivery of compliance services in different industries; Best practices for investigations; A case study of JP Morgan’s “Sons & Daughters” compliance imbroglio; and some of the soft skills a compliance practitioner needs to develop. These are but some of the sessions and there are many other excellent panels, sessions and speakers which I have not mentioned.

Burtmanis has said that one of the reasons she created this event was to bring some of the top compliance talent to Singapore to meet and explore compliance best practices. So beyond simply the formal presentations, there are social events designed to allow a wider and more varied discussion and sharing of ideas. From my perspective she has certainly put together not only a top-notch program but also a conference agenda that facilitates both goals. But more than simply the ‘nuts and bolts’ of compliance programs, there will be speakers who discuss a wide variety of topics that are important to your compliance efforts going forward. So for instance, Amin Hosseinipour, from Hays Executive Recruitment, will talk about “Effective Talent, Sourcing & Retention Strategies for “MNC Compliance””. Ms. Burtmanis will share her thoughts on business risk; how to assess it and use that assessment as a part of your business plan going forward. Phil Johnson, from Control Risks, will discuss “Compliance & Security “Tips & Traps” in Newly Emerging Markets”.

I will be speaking at the conference on the lessons to be learned for the compliance practitioner from the GlaxoSmithKline PLC (GSK) bribery case from China. My presentation is designed to provide the compliance practitioner with the key takeaways for your compliance program. You will learn about concrete steps you can take to make certain your compliance program can withstand the scrutiny of a regulator from any country, from the US to the UK to China.

I hope that you can attend this most excellent compliance conference with the two-day sessions on Monday, June 8 and Tuesday June 9. Very few compliance conferences in the Far East have the detailed focus on compliance that Compliance Risk Logic has put together. If your funding for compliance conferences this year has been reduced, I would submit that this is the one event you should attend. The list of speakers and topics are first-rate and you will be able to interact with some of the top compliance practitioners in this part of the globe. I hope to see you in Singapore. For the conference brochure and full details regarding the agenda and registration, click here.

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

May 8, 2015

Interview with Tanya Otterstein-Liehs-the Process of Fitness

Filed under: Uncategorized — tfoxlaw @ 12:01 am
  1. TanyaWhere did you grow up?

I grew up in Kitchener, Ontario, Canada and now reside in Waterloo, Ont. Canada.

  1. Where did you go to college, what did you study and how did it influence your career going forward?

I went to Conestoga College in Kitchener to study and pursue a career in Early Childhood Education. However I came to a point in my life where I felt it was time for a career change. Deciding to go and follow my passion for fitness by becoming both a Certified Personal Trainer Specialist and Nutrition & Wellness Specialist.   

  1. From your original profession in teaching how did you move to fitness? Most particularly, changing professions can be quite scary, how did you get the courage to do so?

Including fitness in my weekly routine and taking care of myself has always been important to me; a healthy body and mind creates balance.

Finding the courage was rather simple because I just followed my passion and became a Certified PTS. Looking at life and realizing reality – that although I loved teaching and working with young children, I knew as I became older, this very demanding (and rewarding) job would become more difficult to do. Yes, changing careers and leaving a workplace can be scary, but only I could be accountable for change and to remain happy. I find people are too afraid to step out of their comfort zone, even if they do not like the line of work they are in or their workplace. But you need to let go and release yourself- know that it is okay. You can remain in a job you dread going to every day – find it difficult to crawl out of bed for, or you can pursue a new career you are excited about and love to the fullest! You look forward to each and every day.

  1. Your fitness philosophy seems to build from a variety of sources, including business process. How does process come into play for fitness? How about a positive attitude?

Looking at the overall picture of what you want to achieve – the steps you will need to take and follow through on to help you achieve your overall goal(s).

Nothing happens over night – when we break things down into smaller, more achievable and attainable steps, this helps lead to success. Yes, it’s a process and people often want instant gratification – instant results – but where does responsibility then come into play. People need to take on and be more responsible for their actions; they need to learn and acknowledge the importance of the process.

Positive attitude is huge! I like to believe, and people who know me will tell you that I always say, “Things could always be worse.” People forget to value and be-grateful for the little things in life. Valuing what you have, loving yourself first and then others, all helps bind a positive attitude and view of life in general. Okay, some days really stink, but at the end of the day, I have a roof over my head, food to put on the table, my health and the ability to use all my senses and move all my body parts, and I have a loving family, which also includes our dog.

Always begin your day with being thankful for, feeling gratitude for at least five things in your life; think about your dreams and really see them happen; and before you fall asleep at night, think about something great that happened that day. Remember, these are all personal, they do not need to be huge, can be simple.

  1. How have you been able to use social media to build you client base and business?
  • Monthly newsletter builds subscriber lists
  • Reach out to audiences beyond my city to share my ideas and views on various topics of interest
  • Interviews for newspaper articles attracts readers to look at my website and contact me
  • Reach out to audiences who believe and shares in similar and/or same values
  • Reach audiences who span out from around the globe
  • Attracts outside agencies to collaborate with them on various projects 
  1. For the busy compliance practitioner, what tips can you provide on how to think through a fitness program?
  • Mark “SANITY MEETING” on your calendar; schedule 30 – 60-minutes to yourself and dedicate it to a fitness/exercise program
  • Already have your goals set out before you begin your exercise program
  • Have your workout written down so you can get straight to it, and done without needing to think about it
  • Find an exercise activity that you enjoy
  • Think of your fitness program as one of your clients – would you drop them at the last minute, cancel without notice; or would you follow through with what is expected, keep on top of completing a job and/or a project
  • Join a small fitness class and get to know the other participants – camaraderie builds an important support system
  • Hire a certified personal trainer to help you stay accountable
  • And most important, when you are working out/exercising, focus on yourself (your form & technique) this is your time. Do NOT think about work or your clients!

Tanya can be reached via email at Tanya@bodybusiness.ca. Her WebSite is www.bodybusiness.ca and her blog is http://bodybusiness.ca/blog/

February 27, 2015

In Memory-Live Long and Prosper

Filed under: Uncategorized — tfoxlaw @ 11:41 am

Mr. SpockLeonard Nimoy 1931-2015

January 20, 2015

Language Solutions as Preventative Tool in Anti-Corruption Compliance

Filed under: Uncategorized — tfoxlaw @ 12:01 am

LanguageEd. Note-I partnered with Merrill-Brink to write a White Paper on the use of local languages as a preventative tool in FCPA, UK Bribery Act and anti-corruption compliance. Today’s blog post is an excerpt from the full article entitled, “From ‘Detect’ to ‘Prevent’: Translation Solutions as a Preventative Tool in Your Anti-Corruption Program, which can be found by clicking here. 

I often write and talk about what I call ‘McNulty’s Maxims’ on the three questions he would ask to determine the effectiveness of an anti-corruption program. The queries are as follows: (1) What did you do to prevent it?; (2) What did you do to detect it?; and (3) What did you do when you found out about it? These three questions became part of the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) Foreign Corrupt Practices Act (FCPA) Guidance when they stated, “A well-constructed, thoughtfully implemented, and consistently enforced compliance and ethics program helps prevent, detect, remediate, and report misconduct, including FCPA violations.

The FCPA Guidance also goes on to say that use of local language is a key component to a minimum best practice FCPA compliance program when it said, “Indeed, it would be difficult to effectively implement a compliance program if it was not available in the local language so that employees in foreign subsidiaries can access and understand it.” But more than this simple prescription the understanding of how to treat foreign languages has bewildered many companies, particularly when they have faced a multi-nation and multi-lingual internal investigation.

Many compliance practitioners do not normally consider translations as a part of an effective compliance program. However, I believe that through the effective use of translation services, companies can use language localizations as a part of the answers to McNulty’s Maxims and to use language to move from detect to prevent in any best practices anti-corruption compliance program. The key is to think globally, both for the extraordinary events any multi-national company might face and the ordinary, day-to-day work of the compliance practitioner. By doing so you can move from a simple detect mode only to using language as a part of your preventative prong as well.

However, more than simply using language translation as a part of your detection prong of a best practices anti-corruption compliance program, through the localization of the languages in a multi-national organization, you can move towards prevention of a potential FCPA violation. Any best practices compliance program is going to have a wide number of documents to govern and guide its employees.

The FCPA Guidance provided a clear statement that the government expects language localization to be used. In two of the hypotheticals, the Guidance contrasted one company, which after an acquisition, circulated its “compliance policies to all new personnel after the acquisition, it does not translate the compliance policies into the local language or train its new personnel or third-party agents on anti-corruption issues.” When conduct violative of the FCPA continued to occur after the acquisition, the DOJ indicated that it would prosecute under the facts presented.

This was contrasted with a fact pattern where, in another post acquisition setting, Company B’s business lines were merged into Company A’s own robust internal controls, including “its anti-corruption and compliance policies, which it communicates to its new employees through required online and in-person training in the local language.” Based upon these factors, “DOJ and SEC have declined to prosecute companies like Company A in similar circumstances.”

It is clear from these hypotheticals, that the use of localized language can not only help a company demonstrate to the DOJ that it does have an effective compliance program but also that such localization of language can help to prevent conduct from becoming full blow FCPA violations. Consider what the Guidance says about training, “Regardless of how a company chooses to conduct its training, however, the information should be presented in a manner appropriate for the targeted audience, including providing training and training materials in the local language.” Simply giving your FCPA training in English, even if your company has a worldwide English language use policy in place, will not be sufficient.

By their nature FCPA investigations demand a different level of sophistication and execution. Moreover, document translation is not an isolated event. By engaging a professional LSP to help you set up a foreign document review protocol, you can leverage filtering and translation solutions that will result in a more cost and time efficient language management process and assist in preventing corruption issues from becoming FCPA violations. In other words, document translations can be a part of your preventative prong.

Depending on the type of organization, manufacturing, sales, distribution, or a combination of all three and the number of countries and the local languages where your company conducts global business, your business will most likely need to translate or localize some, if not all, of the following documents:

  • Code of Conduct
  • Anti-Bribery Policy
  • Anti-Corruption Policy
  • Third Party Due Diligence Questionnaire
  • Contracts

Ethics and legal compliance documents usually fall under the scope of corporate legal or compliance, HR, internal audit or training stakeholders.  In some corporations, the documents may also belong to an import/export or ITAR group.  Source material will most often be in English and require translation into a number of languages. These services may be sourced directly by your Company or through outside counsel.

Often, local stakeholders may suggest engaging “in-country” resources to translate these materials.  These resources are often bi-lingual employees whose primary role is something other than translation. While certain internal communications may be best handled by “in-country” resources, the timely translation of ethics and compliance documents is usually best accomplished when outsourced to a trusted LSP who is accountable for meeting quality standards and delivery deadlines.  “In-country” resources can be valuable partners for reviewing translated content to ensure it meets local standards but such partnerships between outside LSP and internal resources are highly recommended.

Once the documents have been translated, the LSP will maintain a Translation Memory (“TM”) that can be leveraged to minimize the costs of future code and policy updates as well as repurposing ethics and compliance material for eLearning, HR, internal audit, and training. This means that once you complete the initial translation of key compliance program documents, you will only need to update them on your regular updating rotation, typically every two to three years. Moreover, you can use your base compliance documents and your training documents on a rotating basis. Finally, you can use these same documents to expand the reach of your compliance program by training third parties in your sale side or supply chain, which is fast becoming a minimum best practice; which not only the DOJ and SEC expect to see, but also businesses up your chain that you might contract with.

Scott Killingsworth has coined the phrase ‘private-to-private’ or “P2P” for the phenomena that I called a business solution to a legal issue. In practice it works something like this. A company needs a product or service. As part of the regular contracting process, the company will inquire into the contractor’s compliance function and policy. If the contractor provides a service which deals with a foreign government in any way or has foreign government touch points, the service company may well come and audit the contractor’s compliance program prior to executing the contract. Thereafter the contractor is subject to being audited for not only the execution of the contract but also the continued maintenance of its compliance program. All of this is done for business reasons. It is a business response to a legal issue, that being compliance with the FCPA. However, through the use of localized language you will be able to go far towards satisfying any business partner who may want to review the overall effectiveness of your compliance program.

Finally, engage a LSP with specific subject matter expertise (SME) in FCPA and UK Bribery Act (UKBA) ethics and compliance translation and localization. This allows you to leverage not only your own company’s internal resources but a LSP with specific FCPA or UKBA experience. This experience will enable your compliance program to have the full benefit of service provider with a solid anti-corruption/anti-bribery focus to assist in the maturing of your compliance regime.

By seeking out a professional and reputable legal translation solutions provider, the Company will be taking an important first step in guaranteeing the quality of its ethics and compliance translations and establishing the cornerstone of a global corporate compliance and ethics translation program. You will also follow the prescripts of both McNulty’s Maxims and the FCPA guidance by moving the use of language from only a detect component of your anti-corruption compliance program but to a more sophisticated and more cost-effective prevent mode.

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

December 24, 2014

A Visit from St. Nicholas BY CLEMENT CLARKE MOORE

Filed under: Uncategorized — tfoxlaw @ 12:01 am

Night Before Christmas






‘Twas the night before Christmas, when all through the house
Not a creature was stirring, not even a mouse;
The stockings were hung by the chimney with care,
In hopes that St. Nicholas soon would be there;
The children were nestled all snug in their beds;
While visions of sugar-plums danced in their heads;
And mamma in her ‘kerchief, and I in my cap,
Had just settled our brains for a long winter’s nap,
When out on the lawn there arose such a clatter,
I sprang from my bed to see what was the matter.
Away to the window I flew like a flash,
Tore open the shutters and threw up the sash.
The moon on the breast of the new-fallen snow,
Gave a lustre of midday to objects below,
When what to my wondering eyes did appear,
But a miniature sleigh and eight tiny rein-deer,
With a little old driver so lively and quick,
I knew in a moment he must be St. Nick.
More rapid than eagles his coursers they came,
And he whistled, and shouted, and called them by name:
“Now, Dasher! now, Dancer! now Prancer and Vixen!
On, Comet! on, Cupid! on, Donner and Blitzen!
To the top of the porch! to the top of the wall!
Now dash away! dash away! dash away all!”
As leaves that before the wild hurricane fly,
When they meet with an obstacle, mount to the sky;
So up to the housetop the coursers they flew
With the sleigh full of toys, and St. Nicholas too—
And then, in a twinkling, I heard on the roof
The prancing and pawing of each little hoof.
As I drew in my head, and was turning around,
Down the chimney St. Nicholas came with a bound.
He was dressed all in fur, from his head to his foot,
And his clothes were all tarnished with ashes and soot;
A bundle of toys he had flung on his back,
And he looked like a pedler just opening his pack.
His eyes—how they twinkled! his dimples, how merry!
His cheeks were like roses, his nose like a cherry!
His droll little mouth was drawn up like a bow,
And the beard on his chin was as white as the snow;
The stump of a pipe he held tight in his teeth,
And the smoke, it encircled his head like a wreath;
He had a broad face and a little round belly
That shook when he laughed, like a bowl full of jelly.
He was chubby and plump, a right jolly old elf,
And I laughed when I saw him, in spite of myself;
A wink of his eye and a twist of his head
Soon gave me to know I had nothing to dread;
He spoke not a word, but went straight to his work,
And filled all the stockings; then turned with a jerk,
And laying his finger aside of his nose,
And giving a nod, up the chimney he rose;
He sprang to his sleigh, to his team gave a whistle,
And away they all flew like the down of a thistle.
But I heard him exclaim, ere he drove out of sight—
“Happy Christmas to all, and to all a good night!”

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