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Jay Rosen’s Weekly Series on CCI: Suspension vs. Debarment – Part IV

By AMI News, Jay Rosen Event, Media

Every compliance professional should be familiar with the concept of present responsibility. Jay Rosen discusses the term and its place in suspensions and debarments.

Present responsibility has become sort of a buzzword. It’s the underlying basis for action involving excluding a party from the federal marketplace through suspension or department.

Unfortunately, the phrase itself is not defined anywhere in the regulatory structure. This means its determination comes down to the discretion of the federal officials who have been empowered to exercise the suspension and debarment authority.

Yet even with this lack of a statutory or regulator definition, there are some common factors and guidelines out there that can help the compliance community understand some of the elements of suspension and debarment as they relate to this issue.

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Gerry Coyne on Tom Fox's FCPA Podcast

5-Part FCPA Podcast Series feat. Jerry Coyne: The Use of Monitors by State Attorneys General

By AMI News, Jerry Coyne Event, Media

Day 1: in the first episode of a 5-part podcast series, AMI Managing Director Jerry Coyne, introduces the role of State Attorneys General in protecting state consumers through multi-state litigation. Listen below, or on the FCPA Compliance Report

Day 2: In Part 2 of a 5-part series, Jerry Coyne, Managing Director at Affiliated Monitors discusses the reaction to the Master Settlement Agreement with Big Tobacco and criticism of State AG’s as a result. What were the lessons learned by State AG’s in this process, and what are the risks and rewards of State AG’s using private attorneys to pursue multi-state litigation?

Listen below, or on the FCPA Compliance Report



Day 3: In this Part 3 of a 5-part series, Jerry Coyne, Managing Director at Affiliated Monitors discusses some of the issues faced by State Attorneys General in the post big-tobacco settlement era.

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Jay Rosen’s Weekly Series on CCI: Suspension vs. Debarment – Part III

By AMI News, Jay Rosen Event, Media

Jay Rosen, “Mr. Monitor,” continues a series on suspension and debarment, discussing where these actions meet with FCPA enforcement.

Debarment may be based on actions so serious or compelling that it affects the present responsibility of the contractor or subcontractor. There is some fairly broad language as to what the basis for a suspension and debarment can be. This means that in the context of anti-corruption laws, it can be the basis of a suspension or debarment.

Under the FCPA, the conduct to incur a violation does not require actual bribery or corruption read the full post here
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Jay Rosen, Mr. Monitor

Jay Rosen’s Weekly Series on CCI: Suspension vs. Debarment – Part II

By AMI News, Jay Rosen Event, Media

Jay Rosen, “Mr. Monitor,” explores the similarities between suspensions and debarments, as well as how the actions differ. As far as likenesses go, consider both actions the kiss of death for federal contractors.

Recalling that the GSA website states, “The Suspension and Debarment process protects the federal government from fraud, waste and abuse by using a number of tools to avoid doing business with non-responsible contractors. Suspensions, proposals for debarment and debarments are the most widely known tools as these actions are visible to the public.

A suspension is used when there is an immediate need. It is a temporary measure; there is a 12-month limit, which can be extended for another six months. A debarment is for a specific term, but generally not longer than three years.

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Jay Rosen’s Weekly Series on Corporate Compliance Insights: Suspension vs. Debarment

By AMI News, Jay Rosen Event, Media

Jay Rosen, “Mr. Monitor,” of Affiliated Monitors, continues his running series on monitorships with a sub-series on the tools the government uses to guard against fraud, waste and abuse.

The General Services Administration website states, “the suspension and debarment process protects the federal government from fraud, waste and abuse by using a number of tools to avoid doing business with non-responsible contractors. Suspensions, proposals for debarment and debarments are the most widely known tools, as these actions are visible to the public.”

Government Extending its Reach

Suspension and debarment are not civil or criminal matters resulting in a penalty being imposed on a party; instead, they are an administrative matter.

read the full post here
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Jay Rosen on How lawyers can engage monitors

Jay Rosen’s Weekly Series on Corporate Compliance Insights: How Can Lawyers Work with Monitors?

By AMI News, Jay Rosen Event, Media

Jay Rosen concludes his exploration on issues in working with monitors by considering how lawyers can engage monitors – most typically when their clients are under investigation for some regulatory issue, such as an FCPA enforcement action.

Don’t Wait Too Long

The biggest mistake outside counsel can make is waiting too long before bringing on an independent monitor.

AMI’s experience is that if you wait until after the conclusion of a matter, you have lost valuable time and potentially cost yourself money in the form of higher fines and penalties. The government expects compliance shortcomings to be remediated during the pendency of an investigation.

A monitorship can even begin before self-reporting to the government. This is because a company should want to find the problem before it voluntarily reports the problem to the government; the company could receive credit for having done so.

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Mr. Monitor discusses how regulators can leverage monitors

Jay Rosen’s Weekly Series on Corporate Compliance Insights: How Can Regulators Leverage Monitors?

By AMI News, Jay Rosen Event, Media

Jay Rosen discusses the various ways regulators at all levels – federal, state and local – use monitors, as well as how monitors can be used outside the regulatory context in areas as diverse as M&As, business ventures, IP and licensing.

Most compliance practitioners are aware of the role monitors play in the Foreign Corrupt Practices Act (FCPA) enforcement arena. However, the use of independent monitors is much broader than simply in criminal or civil enforcement actions involving a deferred prosecution agreement, non-prosecution agreement, corporate integrity agreement or other form of resolution.

Federal agencies use monitors for a wide variety
of roles to ensure compliance with agreements.

read the full post here
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5-Part FCPA Podcast Series feat. Eric Feldman: DOJ 2019 Guidance

By AMI News, Eric Feldman Event, Media

In a podcast series sponsored by Affiliated Monitors, Inc. (AMI), Tom Fox visits with Eric Feldman, Senior Vice President of AMI. They look at the Department of Justice (DOJ) Evaluation of Corporate Compliance Programs, (the “2019 Guidance”), which was released in April 2019. Over the next five podcasts we will explore what the 2019 Guidance changes are from the Evaluation of Corporate Compliance Program (2017 Guidance), released in February 2017, the structure and emphasis of the 2019 Guidance and what it means for the compliance practitioner going forward.

Listen to the full series below, or wherever you listen to podcasts.

Day 1:

In this first episode, they begin with some of Feldman’s observations on the 2019 Guidance. The 2019 Guidance asks three fundamental questions prosecutor should ask; all other questions are divided into these categories: (1) “Is the corporation’s compliance program well designed”; (2) “Is the program being applied earnestly and in good faith?”

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Eric Feldman featured on the SCCE Compliance Perspectives Podcast — the Benczkowski Memo & Corporate Monitors

By AMI News, Eric Feldman Event, Media
via Adam Turteltaub at SCCE

In October 2018 Assistant Attorney General Brian Benczkowski of the US Department of Justice issued a memo entitled “Selection of Monitors in Criminal Division Matters.”  Some took the memo to herald the end of corporate monitorships.

Not so, says Eric Feldman of Affiliated Monitors.  In this podcast he explains that, instead, the memo was designed to improve both the selection of monitors and the process for determining whether having a monitor is appropriate.

Over the years it had become the default to have a monitor when a Deferred Prosecution Agreement was put in place.  Now a cost/benefit analysis will be conducted before going down this often long road.  The DOJ will be examining factors such as who was involved in the wrongdoing and what progress the company has made on its own to strengthen its compliance efforts.

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