BREAKOUT SESSIONS B

Track 1: The Intended (and Unintended) Consequences of Compliance Program Certification: Unpacking the Future of the Compliance Function, and What is “Reasonably Designed”
Track 2: Revisiting Your Self-Disclosure Calculus: New Considerations Amid the Enhancement of Prerequisites to Obtain Cooperation Credit and the Broadened Scope of Prior Misconduct
Track 3: Creating a Best-in-Class ESG Compliance Program: Engaging with Stakeholders and Leveraging Cross Functional Teams to Identify Key Risk Factors and Ensure Compliance

November 30, 2022 4:05pm

Track 1:

Lisa Miller
Deputy Assistant Attorney General, Fraud and Appellate Sections, Criminal Division
U.S. Department of Justice

Katherine Choo
Vice President and Chief Counsel, Global Investigations
General Electric Company

Candy Lawson
SVP, Chief Compliance Officer and Senior Deputy General Counsel
Comcast

Ruti Smithline
Partner
Morrison & Foerster LLP

Daniel Kahn
Partner
Davis, Polk & Wardwell LLP
(Former Deputy Assistant Attorney General of the Criminal Division, U.S. Department of Justice)

Track 2:

Rita D. Mitchell
Partner
Willkie Farr & Gallagher LLP (UK)

Zane David Memeger
Partner
Morgan, Lewis & Bockius LLP

Kimberly A. Parker
Partner
WilmerHale LLP

James G. Tillen
Member
Miller & Chevalier Chartered

Brian E. Kowalski
Partner
Latham & Watkins LLP

Track 3:

Michael Ortwein
Assistant General Counsel & Chief Compliance Officer
General Motors

William (Widge) Devaney

William (Widge) Devaney
Partner
Baker McKenzie

Beth Jones
Senior Managing Director, Risk and Investigations
FTI Consulting

William D. Semins

William D. Semins
Partner
K&L Gates LLP

Iris E. Bennett

Iris Bennett
Partner
Steptoe & Johnson LLP

Track 1: The Intended (and Unintended) Consequences of Compliance Program Certification: Unpacking the Future of the Compliance Function, and What is “Reasonably Designed”

As the DOJ indicated it would earlier in the year, they have officially mandated – as part of resolving a corporate enforcement action – that a Chief Compliance Officer and CEO must certify under penalty of perjury and pursuant to a robust obstruction statute, that their organization’s compliance program is reasonably designed to prevent future violations.

With this expansion of the enforcement process, the C-suite and upper management must now expect these certifications in future resolutions with the DOJ in plea agreements or pre-trial diversion agreements. As such, it is critical for organizations to take the necessary steps to ensure that their compliance and ethics programs are effectively designed to detect and prevent violations of law.

Join us in this session as we discuss the real-world impact of these developments and what it now takes for your program to be “reasonably designed”, such as:

  • Your commitment to compliance that highlights the policies, procedures and systems needed for proper oversight
  • The extent of due diligence required to ensure that compliance programs are “reasonably designed”
  • Conducting periodic risk-based reviews
  • Training and guidance initiatives
  • Internal reporting and investigation capabilities
  • Enforcement and discipline processes – including for third-party relationships
  • Assurances in place for seamless and compliant mergers and acquisitions
  • Steps in place for effective monitoring, testing and remediation
  • Accurately identifying your organization’s risk profile to ensure that your program is well-designed; adequately resourced; and empowered to function effectively
  • Assessing risk and building a program that is tailored to match resources that are specific to your risk profile

Track 2: Revisiting Your Self-Disclosure Calculus: New Considerations Amid the Enhancement of Prerequisites to Obtain Cooperation Credit and the Broadened Scope of Prior Misconduct

The DOJ does provide specific benefits to companies that self-disclose in the context of FCPA violations. However, when companies are evaluating whether to self-report violations of the FCPA, it is important to consider a myriad of factors.

The risk calculus is complicated and fact-intensive. During this session, leading outside counsel will discuss key factors to incorporate into your analysis and decision-making:

  • Initial considerations regarding the benefits and risks of self-disclosure
  • Whether the company is a recidivist
  • The practical impact of U.S. disclosure on foreign corruption investigations – will this expose your organization to foreign prosecution?
  • The likelihood of similar, but undiscovered, misconduct in other locations or countries in which the company operates
  • Assessing the possibility of full cooperation with the DOJ, including the production of documents and witnesses, both within the United States and overseas
  • Possible exposure to parallel investigation by another regulator, such as the SEC, and civil litigation
  • The company’s compliance program and internal controls and their willingness to enhance that program
  • The dynamics of whether self-disclosure will be considered “voluntary”
  • Getting the sequencing and the substance right
  • Identifying in which order to disclose, how much to say, and to whom

Track 3: Creating a Best-in-Class ESG Compliance Program: Engaging with Stakeholders and Leveraging Cross Functional Teams to Identify Key Risk Factors and Ensure Compliance

An increase in investor and shareholder focus on ESG has further emphasized the link between a robust anti-corruption program and a company’s ESG compliance program.

Recent and expected shifts in the regulatory reporting landscape pushed ESG to the forefront along with anti-corruption. In this session we will review best practices for successfully bringing ESG into the broader due diligence and compliance process, and walk you through the steps needed to implement and sustain a successful ESG program.

Key Takeaways:

  • How to define ESG – along with the corresponding strategy, lessons learned, priorities and resources that are needed
  • Operationalizing ESG and identifying the key data, metrics and risk factors to prioritize in your program
  • Identifying potential human rights risks associated with business operations, including how to effectively conduct human rights impact assessments
  • Implementing a technology solution that enables your organization to have a cohesive workflow that can capture and assess anti-corruption and ESG risks
  • Assessing self-reported information provided by third parties, and supporting it with independent checks to better understand and verify your ESG footprint and approach
  • Finding the right setup for merging ESG and compliance teams, based on: the factors driving your ESG interest; the specific risk profile and tolerance of your organization; and, the types and locations of the work your company does