Virtually excited for the 2020 Compliance and Ethics Institute

This week – Sept. 14-16 — Is the annual Compliance and Ethics Institute sponsored by the Society of Corporate Compliance and Ethics (SCCE), of which I am a proud member. I been on the faculty of the Institute for each of the last seven years, and I am not about to miss the #CEI this year just because the event is virtual. It’s a highlight of my year!

Here’s what I am talking about this year:

Monday, September 14, 5:00 PM CDT: “The Trouble with Moral Relativism”I’ll be leading an advanced discussion group at the SCCE Institute about the attitudinal trends represented in increasingly popular thoughts like, “It’s all good,” or “Who can tell – they’re all lying.” We’ll talk about whether this growing normative agnosticism creates unstable ground beneath the foundation of corporate compliance programs and any attempt at ethical leadership.

Tuesday, September 15, 10:15 AM CDT: “Speak-Up Success: Training and Communications to Truly Encourage Reporting and Reduce Retaliation.” – I will lead this workshop at the Institute, along with Amy McDougal and OSI’s Chris Cook about practical and effective ways to generate a Speak-up Culture.

And by the way: If my Compliance and Ethics Institute remarks sound interesting to you, then tune in to my next “Powering the Pandemic Pivot” webinar, Wednesday, September 24, 12:00 Noon ET, where I’ll try to share what I learn at this year’s Institute about fostering Company Culture.

Hope you can join us!

A Greeting Card for Businesses in the Time of Coronavirus

We have a timely present for your business or organization.

I was chatting last week with several of my good friends in the compliance sector: Nicole Rose of CreateTraining, the Australia-based education and training company that has produced several powerful animations for LeadGood clients; Richard Bistrong of CEO Front-Line Anti-Bribery LLC, the well-known anti-bribery consultant and speaker; and my frequent colleague and project partner Amy McDougal, JD, CCEP, of CLEAResources, a leading compliance program consultant. We share a deep belief, borne of professional experience, in the power of shared values to inspire people to do great things.

We found we also shared a desire to use what we do at work to somehow help organizations respond to the Coronavirus in a different, honest, but inspiring way — acknowledging that we are in it for the long-haul, and that for as long as it takes, we will have each others’ backs.

The result is this video, which we now offer to you to use as much as you want, however you see fit. Think of it as a video greeting card you can send to your teams, clients, and community. Consider yourself licensed to use it as you wish, to shorten it, to add your own message or logo, to make it yours – please distribute it as broadly as you’d like, just keep the credits at the end. (Nicole is happy to do edits, etc., if you wish, and even to change the voiceover from my voice to her Australian lilt.)

If you want to use this video and need help downloading the file, just contact me and I’ll be delighted to assist.

We hope this video helps your business say what you’re thinking to the people you care about, and and it helps us all stay steadfast.

People Power: A Greeting Card for Organizations to Share Some Love in the Time of Coronavirus

Goin’ Back… to SCCE

I’m excited and honored to have been asked once again by the Society of Corporate Compliance and Ethics to serve on the faculty of its Annual Compliance and Ethics Institute, outside Washington DC.

On Tuesday morning, September 17, Amy McDougal and I will update and reprise our presentation on “Compliance by Contract – Drafting and Negotiating Terms for Peer-to-Peer Compliance.” (It was a big hit when we last did it a few years back.) When you negotiate a commercial contract that includes terms about compliance — whether with customers, contractors, vendors or suppliers — the right terms can boost your own C&E program, and the wrong terms can undermine it. So we’ll share our experiences as lawyers and compliance pros, exchange pitfalls and engage in facilitated exercises. The goal: getting everyone better at closing good deals that support great compliance programs

Then on Wednesday, September 18, I’ll be leading a workshop on Counseling Compliance in Small to Medium Sized Organizations. which make up 97% of US companies. We will explore the unique challenges (and opportunities) of compliance leadership in SMBs — and nonprofits and governments — where budgets and headcount are limited, processes informal, and executive power dominant. The workshop will take place from 10:15 to 11:45.

If you work in compliance or ethical leadership, you’ll get a real charge from the colleagues and camaraderie at #SCCEcei. Hope you can see it!

LeadGood Seminars and Sessions in 2018 (Thanks for Asking)

I am honored and excited to have once again been asked to present a double-shot of panels at the annual Compliance and Ethics Institute of the Society of Corporate Compliance and Ethics, coming up in Las Vegas in October 2018.

On Sunday, October 21, I will co-lead a three-hour workshop on “Preventing harassment: can compliance ever succeed?” Joining me will be my frequent speaking partner and project colleague Amy McDougal of CLEAResources, LLC, and Susan A. Parkes, General Counsel & Vice President of Alyeska Pipeline Service Company.

It’s been 20 years since the Supreme Court rulings in Faragher and Ellerth made corporate anti-harassment efforts routine, yet there are more headlines than ever about blatant acts of harassment, especially among corporate and cultural leaders. Sharing research and our collective experience, this workshop will focus on training, policies and culture-building, to explore why we have failed in preventing harassment, where we have engaged, and how we can elevate behavior. One critical focus will be retaliation vs. a “speak-up” culture, including best practices for creating, maintaining, and getting management support for an Open Work Environment.

Then on Monday, October 21, Amy and I will return to present a discussion on “Counseling compliance in small to medium sized businesses.”

Businesses with under 100 employees make up 97% of US companies, and headlines show they are at least as prone to compliance-related failures as the Fortune 2000. But “SMBs” are unlikely to have a CCO or even GC. So the task of leading and counseling compliance falls to other professionals, including HR and outside counsel. In this panel, Amy and I will explore the unique challenges of compliance leadership in SMBs, where budgets may be limited, processes informal, and executive power dominant. We’ll share experiences, including ways to use regular operational processes as tools to promote compliance, and to use the strong culture in these companies to their ethical advantage.

The idea for this panel was inspired in part by the Charlie Rose episode, which even though it involves a major TV star, is really a failure of small business compliance. Rose’s production company had no HR department, only a executive producer who among other duties may have tended to enable rather than check her “CEOs” misconduct. Our hope is that this panel will be of particular appeals to HR professionals and the “compliance lawyer.”


I’m also very excited that I have been asked to moderate a panel at the upcoming UIDP26 Conference in San Jose, CA. UIDP is the University-Industry Demonstration Partnership, an organization that considers university-industry (U-I) relations and opportunities to develop new approaches to how academia and business can work together. The panel is entitled: “Ethics and Compliance 2018: a University-Industry Dialogue.“

From #MeToo to campus speech to AI to perceived conflicts of interest, concerns about ethics are now even more a part of daily life at companies, colleges and universities alike. For both sides, this concern is only more heightened when it comes to their partnerships with other institutions. (Who are your partners, and what do they appear to stand for?) In this panel, ethics and compliance professionals from academia and industry will share their respective points of view and current concerns. The goal will be for attendees to understand better not just what their partner needs their institution to do, but how it hopes they will do it.

If you are at any of these events, say hi!

Looking forward…

My Proposals for the 2016 #SCCEcei – What’s Your Fave?

I’m really excited about the three panel proposals I submitted last night to the Society of Corporate Compliance and Ethics (SCCE), for its 2016 Compliance and Ethics Institute. Thanks to Amy Hutchens, JD, CCEP, Page Motes and Heather Powell for joining in.

Our proposed topics were:

  1. An advance workshop on drafting and negotiating contracts with compliance provisions — this would take the next step from the compliance contract panels that Amy and I did at the CEI in 2014 and this year.
  2. “The Good Reasons Why People Do the Wrong Things” — Exploring the frequent instances when people follow their own ethical code and choose to break rules. (Think about teachers or nurses following their deep ethic of care.) The lesson: it’s not just greed or “bad guys” that lead to misconduct.
  3. “Fostering a Speak-Up Culture: What Really Works” — Now more than ever, it’s critical for compliance professionals and business leaders to focus on what, objectively, has worked best to foster and maintain a culture in which people report suspected wrongdoing freely, constructively, and internally. So how do you make that happen?

I wish they’d let us do all three of them! So tell me, what’s your favorite?IMG_3426

Tone at the Very Top: The Umpire Strikes Back

The other shoe has dropped.

I wrote last month about concerns that the Justice Department may have gotten off to the wrong foot, tone-wise, following its “Yates Memo” declaration that it intended to prosecute individuals within companies for their organization’s wrongdoing.

But, as Mike Volkov so well summarizes, the top enforcer on this playing field quickly found a case with which to make its point. On October 29th, the DOJ announced a $125 Million criminal settlement with pharmaceutical company Warner Chilcott (once Galen, now Actavis). In the same breath, Justice also announced criminal charges against four company employees — including the company’s former president. According to the release, several other employees have already pled guilty or been indicted on criminal charges. The cases arise from Warner Chilcott’s payment of kickbacks to physicians to induce them to prescribe its drugs.

DOJ’s press release makes its intended message explicit:

“Pharmaceutical company executives and employees should not be involved with treatment decisions or submissions to a patient’s insurance company.  Today’s enforcement actions demonstrate that the government will seek not only to hold companies accountable, but will identify and charge corporate officials responsible for the fraud.”

Interesting, and not surprising, that Justice struck this blow in the healthcare industry. Pharma and Medical Technology have been the industries on the bleeding edge of enforcement (and internal compliance efforts) since the 90’s (at least).

In commenting on my earlier post about the tone being struck by the DOJ, Scott Killingsworth pointed out that “the DOJ will tell you what they are going to do, and then by golly they will do it.” I agreed, and I speculated that the Department must be “itching” to prosecute some company executives. Not that it took much in the way of powers of prediction, but it looks like we were right. Executives and companies who ignore the Yates Memo do so at their peril.

 

Chalk Lines: On Baseball, Groundskeepers, and Compliance


In honor of the end of baseball season, I am recalling (and revising) some thoughts I originally posted last fall
— and adding some pictures. Hope this takes you out to the ball game.

Catcher and field closer1By Wednesday, the Major League season will come to its last glorious inning. And this afternoon, my son will catch the last game of the year for his Babe Ruth League team, ending a long string of seasons and games that began in March. So

Doing what I do, every time I leave the clean white chalk powder on the rusty matte of the base paths, I think to myself, “Even here, even now, I’m leading compliance!”

Does that make me Mister Baseball Buzzkill? Yeah, maybe so. But I think there is a parallel between the Compliance Officer and the Groundskeeper.

I mean, compliance is in large part about winning while staying inside the lines. And for an organization, who paints those lines?

Government? Regulators? An industry Code? Your Code of Conduct? Sure, but not precisely.The Rules of the Game may specify that the foul line extends from the first base line and the third base line. But it is still the compliance team that has to paint the lines precisely.

To push my metaphor way too far, compliance leadership has to decide the slope of the base path, and the tendency of slow grounders to stay in bounds or to roll foul. And to abandon the realism of my metaphor, we have to decide whether to paint the lines on our own field with a little cushion, so minor fouls don’t really cross the legal line… or paint the lines wide, to give our organizations a bigger playing field but also a bigger risk of stumbling out of bounds.

But most of all, as compliance leaders we have to do the painting. The Rules may say where the foul line should be, but the players would be left to just guess what’s foul and what’s not if we didn’t draw an actual line that they can see while they are playing.  Our teammates rely on our education programs, our communications, and our internal enforcement to know where the dividing line falls.

The author's first-base line left something to be desired, but did not ultimately affect the course of play.
The author’s first-base line was visibly imperfect, but did not ultimately affect the course of play.

Frankly, I can think of times when my base lines left something to be desired, straightness-wise. The umpire might have checked to see how I drew the line (or he might not have), but once play began, he relied on the white line I put down in chalk. It’s a big responsibility.

So you can picture me standing out there today, superimposing all these philosophical musings about work onto our national pastime. Then you can picture my son pointedly reminding me that the game is about to begin, and that I need to get my carcass off the field, and help coach my players to success.

Play ball!

Tone at the Very Top, DOJ-Style

As compliance professionals and leadership counselors, we focus on “tone at the top.” What the C-Suite says is critical to establishing an ethical culture in an organization. What is even more important to foster that culture is whether top executives speak and act consistently. We advise our leaders that even one act of apparent hypocrisy, or of “looking the other way,” can undo a lot of cover-letters-with-Codes-of-Conduct.

With this perspective, I commend to you two recent blog posts by fellow compliance lawyers, about the tone coming from the very top, compliance wise: the Department of Justice.

One is Mike Scher’s post this week in the FCPA Blog about the DOJ’s findings that downplay the alleged corruption violations by WalMart in Mexico.

The other is  Michael Volkov‘s comment on the outcome of the DOJ’s investigation at General Motors, first published in September but recirculated through LinkedIn this week.

Screen Shot 2015-10-24 at 10.26.38 AMAt the SCCE’s annual Compliance and Ethics Institute earlier this month, I perceived a consensus of approval among the compliance community for the DOJ’s September 9th “Yates Memo,” in which Deputy Attorney General Sally Quillan Yates sought to send a strong message that the DOJ would henceforth be eager to prosecute culpable individuals for wrong-doing within the corporations they lead. There were many concerns (see this and this), yet the general thought seemed to be that the tone set by the Yates Memo would reinforce our efforts to get buy-in within our companies.

But Mike Volkov raises this concern: with the GM case (as now with WalMart), do the DOJ’s actions speak louder, tone-wise, than Yates’ words?

 

When Contracts and Compliance Collide: Lessons Learned

As important as it usually is that “Compliance” be independent from “Legal,” there are realms in which it’s best when those two functions are full collaborative partners. One of those is the realm of contracts with third parties.

Twitter pix of SCCE panel 15-1005That was an inescapable take-away from a session on October 5th at the SCCE’s annual Compliance and Ethics Institute: “Peer-to-Peer Compliance: Are Y
our Contract Clauses Running Offense and Defense For Your Ethics and Compliance Program
?” I had the honor of presenting the session, with Amy Hutchens of CLEARresources. I also had a complete blast, pretending to negotiate typical clauses with Amy, fielding questions about covenants that troubled SCCE colleagues in the audience, and sharing our lessons-learned.

Lessons such as?

  • That the intersection (collision?) of transactional law and corporate compliance is happening more often, as companies pay more attention to the risks their third-party relationships can pose, and authorities from the Sentencing Commission to the FDA voice their expectation that these risks be managed contractually.
  • That a careless clause can damage the structure or credibility of a company’s compliance regime – but a legal department engaging in zero-sum negotiations, without benefit of a partner from compliance, might miss that risk.
  • That there are two strategic extremes for the company in the “prime contractor” role, each of which can be problematic: Unyieldingly insist on the most favorable language for your side, and eager vendors may agree even though they know they cannot follow the contract they signed. Take an overly flexible position, open to each vendor’s full range of concerns, and your resources may get nibbled to death while you wind up with no predictable consistency among your agreements.

What’s an enlightened company to do? First, consider your goal – is it to get a signed document full of hard-ball victories, or to have third-parties who are actually working with your guidance to engage in compliant behavior? Assuming it is the latter, your company may be better served by living its core values even in its negotiating style, and by taking a firm, comprehensive, but reasonable form of contract to market. And for that to happen, “Legal” and “Compliance” must work together, and understand the other’s issues.

If you missed the session at the CEI – or if you missed the CEI altogether – no worries. We are reprising the session in the form of an SCCE Webinar, on Tuesday, October 13th. Please join us!

10/13 Webinar: Compliance and Commercial Contracts

Here’s the link if you’d like to sign up for my Webinar on Tuesday, October 13, on “Compliance and Commercial Contracts.”

And here’s a link if you’d like more information.

This is a new, longer and expanded web-conference version of the panel I presented at the SCCE Institute on October 5th. You can read more about that in my previous post.