Our Compliance team has extensive experience in the development and evaluation of corporate compliance programs, and counseling clients about meeting their compliance obligations, in industries as diverse as aerospace, healthcare, national retail chains, sporting goods, electronics and other manufactured products, transportation, and telecommunications, and in a wide variety of legal fields.  Our compliance clients have included the nation’s largest carpet manufacturer, the second largest retailer, the leading players in two transportation-industry segments, a $30 billion defense contractor, a $35 billion pharmaceutical company,  major national pharmacy and department store chains, and many others. 

Our professionals have assisted our clients with:

• Compliance program design, including functional definition of the compliance department, internal reporting relationships and operating relationships with other corporate constituencies, compliance monitoring and training issues, and relevant Board committee charters.

• Policy and procedure development, including Codes of Conduct, ethics hotline response and investigation procedures, and domain-specific policies in areas such as corporate governance, labor and employment, environmental, healthcare, antitrust and trade regulation, SEC and national market listing standards compliance, privacy issues, Foreign Corrupt Practices Act, ERISA, campaign finance, OSHA and safety, customs, immigration, government contracting, banking and finance, records retention and management, money laundering, Anti-Boycott Act, federal export controls, intellectual property, information technology, and the like.

• Ongoing counseling in compliance matters of all types.

• Review, evaluation and improvement of existing compliance programs, including assessment against  the requirements of the revised Federal Sentencing Guidelines and similar penalty-mitigation programs at the agency level, Sarbanes-Oxley, and national market listing standards (see additional information on program assessments below).

• Compliance training, including Board training and the authoring of both custom and “off-the-shelf,” live and web-based compliance training programs in areas such as labor and employment law, EEOC and affirmative action, HIPAA and Stark regulations, Gramm-Leach-Bliley, and Fair Credit Reporting Act.

• Internal investigations and representation of independent Board committees.

• Design, roll-out and administration of national discovery compliance programs for clients with large consumer litigation portfolios, to ensure accurate and consistent discovery responses.

• Assistance with government investigations and in the negotiation, implementation and ongoing management of Corporate Integrity Agreements and other settlements with regulatory authorities.

Our Professionals

The professionals on our Compliance team draw on a variety of substantive disciplines, as necessary to cover the breadth of substantive issues encountered in this area.  Many compliance-law practices are primarily offshoots of a legacy white-collar crime practice, a specialized regulatory practice (such as healthcare, environmental, or FCPA), or an SEC/corporate governance practice.  None of these can suffice alone.

In our team, Business and Finance attorneys bring expertise in corporate governance, SEC and national market listing requirements, and related disciplines, as well as a specific focus on entity-level compliance program issues.  They work with domain specialists in substantive legal areas such as those listed above, who have experience both in substantive compliance within their domain, and in assessing the conformity of domain-specific compliance processes to the Sentencing Guidelines criteria.  Many of these specialists also have considerable experience working with governmental regulators and enforcement personnel on enforcement issues, sometimes with assistance from members of our Special Matters practice.  Together these professionals can address compliance program structure and function, substantive compliance counseling, and enforcement, defense, settlement and remediation issues.

Our Assessment & Compliance Program Development Experience

Background: The Best Practices Survey.  In 2001 we performed one of the first comprehensive surveys of evolving compliance standards and practices at leading U.S. multinational companies.  The survey, commissioned by a Fortune 100 company, was designed to examine and report on the corporate compliance programs at major corporations and highlight “best practices” so that our client could better evaluate its own program.

As part of the survey, Powell Goldstein attorneys reviewed compliance programs at dozens of major corporations, culminating in interviews with senior compliance officials at twenty-nine Fortune 200 corporations that represented a variety of industries.  The interviews focused on the compliance procedures in place at these corporations and included examination of written materials, training programs, monitoring systems, auditing procedures, and investigatory processes, as well as the overall structure of the compliance program.  These corporate officers also were asked to identify aspects of their corporate programs that worked particularly well and that offered insight into improving corporate compliance procedures.

One of the main teachings of this experience and others in the entity-level compliance program area was that there is frequently a disconnect between a company’s entity-level compliance program elements and its operational, substantive compliance activities – the familiar staff versus line communications gap.  This disconnect was, candidly, mirrored within our Firm  – so we created a formal Compliance practice group to bring together our formerly separate compliance-related practices under a single canopy.  As a result, our Business and Finance attorneys have become more adept at spotting substantive compliance issues in other disciplines, our regulatory specialists have become more familiar with the Sentencing Guidelines paradigm and other entity-level considerations, and both now speak a common language.

We strive to provide comprehensive assessment and remediation services as a team, with appropriate division of responsibilities, responsible staffing, and the efficiency borne of experience.  We are keenly aware that, in theory, there is no end to the tasks that could be performed or the questions that could be reviewed in an assessment of compliance activities, but in practice, there must be an end.  We try to stop well short of the point of diminishing returns.  A compliance program review can be very valuable, but it is not a behavioral audit and cannot be expected to uncover noncompliant actions that are taking place clandestinely – though this sometimes occurs as a byproduct of a review. 

 Representative Matters: 

• Designed and performed a comprehensive review and report on the compliance program of a Fortune 500 company and its operating subsidiaries, two of which are the largest participants in their respective industries. This included entity-level advice on compliance department structure and function, including reporting relationships and processes, monitoring and training issues.  In addition, we performed assessments of (and in some cases provided development assistance on) individual policies, procedures and processes for ensuring compliance in most major legal risk areas for these companies, both in operations, such as environmental compliance, and at the structural level, such as document management and Code of Conduct issues.  (Tax and accounting issues were excluded because of the coverage of these areas by the company’s auditors and the Sarbanes-Oxley 404 process).
• Represented a large public hospital system (including an 800-bed tertiary care teaching hospital and its affiliated community hospitals, long-term care centers and physician clinics) in the context of a federal criminal investigation.  This representation involved extensive counseling on the current function and restructuring of the hospital’s corporate compliance program, and included the following activities:
  • Perform a governance compliance and function assessment and assist the system in moving toward optimal governance-directed corporate compliance. 
  • Perform a full review of the system’s compliance program, including both operational and clinical compliance with legal and accreditation standards. 
  • Identify and prioritize a list of potential and actual compliance issues, including a variety of suggested possible actions to minimize or eliminate risk associated with identified areas needing improvement.
• Based on information obtained during the compliance review and associated activities, develop and recommend alternative structures for an organizational compliance program implementing a system-wide, multi-disciplinary cooperative approach to continuous quality improvement.
• Following government investigations that predated our representation, we successfully negotiated Corporate Integrity Agreements with the U.S. Health and Human Services Office of Inspector General (“OIG”) on behalf of (i) the largest public hospital system in the third most-populous state in the country, and (ii) one of the largest nationwide pharmacy retail chains.  With respect to compliance activities, both these negotiations required us to:
  • Audit the client’s current compliance activities, including its governance function and oversight, licensing and accreditation compliance, clinical compliance, relationships with referral sources, and affiliated or associated supplier compliance;
  • Develop alternative strategies to address outstanding issues and assist in implementation as required; and
  • Monitor and document ongoing compliance activities under the Corporate Integrity Agreement.
• Following compliance processes for a national evangelical ministry and its associated church and affiliated entities, covering issues such as corporate governance, tax exemption and tax compliance, contracting processes, intellectual property issues, and other areas.
• Performed a compliance assessment for a 12 hospital system in the Western U.S.  The project included reviewing core documents and interviewing corporate and regional representatives of the system to identify areas in which their corporate compliance program could be enhanced, drafting recommendations for refinement, and assisting in the client’s implementation of our recommendations, including:  (i) revising core compliance documents, including the code of conduct and compliance plan; (ii) drafting key policies and procedures; and (iii) creating various training protocols to effect the roll-out of the revised program.
• Provided antitrust compliance programs and advice to Fortune 100 and 200 clients in diverse industries.  For example, for one of the world’s largest floor coverings manufacturers, we provided a comprehensive review of its firmwide pricing policies to verify compliance with Robinson-Patman Act requirements.  This project entailed interviews with the heads of each of the company’s selling divisions and with other senior management, review of pricing documentation and data, the development of new pricing policies and procedures and the rollout of the new system to the worldwide sales force.
• Provided industry-tailored antitrust compliance programs for trade association clients and standard setting organizations.
• Assisted U.S. and multinational corporations to meet their obligations under the Foreign Corrupt Practices Act and the ever-growing list of international anti-corruption conventions, including the OECD Anti-Bribery Convention, the U.N. Convention Against Corruption and the Inter-American Convention Against Corruption. Our clients in this area include major defense and aerospace companies, energy developers, medical device manufacturers, pharmaceutical companies, consumer electronics firms, and foreign governments.
• Conducted due diligence audits of export control compliance, assisting clients in implementing compliance programs, and have presented customized in-house training programs on economic sanctions to several companies.
• Provided compliance assessments and recommendations on every aspect of labor and employment law to multiple clients, for example Kimberly-Clark and Shaw Industries.
• Provided assistance regarding implementation of compliance programs under federal contracting Administrative Agreements resolving suspension and debarment actions, to clients including jewelry distributors, construction companies and aerospace firms.
• Performed risk assessments of seven large federal cost-reimbursement contracts with the Center for Medicare and Medicaid Services, including review and assessment of Information Systems Security, representations and certifications, internal controls and compliance with requirements of the CFO Act and the Federal Financial Management Act, Privacy Act and Payment Procedures and related vulnerabilities under the Civil and Criminal False Claims Acts.
• Conducted domain-specific internal audits, due diligence reviews and corporate internal investigations for defense contractors, health care providers, retail pharmacies and pharmaceutical companies.