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Corporate Legal Compliance Handbook, Third Edition by Theodore L. Banks Scharf Banks Marmor LLC; Compliance & Competition Consultants, LLC , Frederick Z. Banks Corporate Legal Compliance Handbook, Third Edition by Theodore L. Banks Scharf Banks Marmor LLC; Compliance & Competition Consultants, LLC , Frederick Z. Banks

Corporate Legal Compliance Handbook, Third Edition

By Theodore L. Banks, Frederick Z. Banks
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Overview

Corporate Legal Compliance Handbook, Third Edition, provides the knowledge necessary to implement or enhance a compliance program in a specific company, or in a client's company. The book focuses not only on doing what is legal or what is right—the two are both important but not always the same—but also on how to make a compliance program actually work.

The book is organized in a sequence that follows how to approach a compliance program. It gives the compliance officer, consultant, or attorney a good grounding in the basics of compliance law. This includes such things as the rules about corporate and individual liability, an understanding of the basics of the key laws that impact companies, and the workings of the U.S. Sentencing Guidelines. Successful programs also require an understanding of educational techniques, good communication skills, and the use of computer tools. The effective compliance program also takes into account how to deliver messages using a variety of media to reach employees in different locations, of different ages or education, who speak different languages.

Note: Online subscriptions are for three-month periods.

Pages 1724
Last Updated 06/12/2020
Update Frequency Semi-annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781543823714
SKU 10083407-7777
Publish Frequency Daily
Product Line Wolters Kluwer Legal & Regulatory U.S.
SKU 000000000010071663
Table of Contents

About the Editors

About the Contributors

Introduction to the Third Edition

Introduction to the Second Edition

Introduction to the First Edition

Compliance Knowledge Assessment

Quick Compliance Checklist

PART I THE WORLD OF CORPORATE COMPLIANCE

Chapter 1 GENERAL PRINCIPLES BEHIND A COMPLIANCE PROGRAM: THE CASE FOR COMPLIANCE - Theodore L. Banks and Christian E. Liipfert

§ 1.01

What is Corporate Compliance?

§ 1.02

Why Should Corporations Comply with the Law?

§ 1.03

Why Should Individuals Comply with the Law?

§ 1.04

Corporate Compliance Programs

§ 1.05

Conclusion

Chapter 2 AN EFFECTIVE COMPLIANCE PROGRAM UNDER THE SENTENCING GUIDELINES AND THE DEPARTMENT OF JUSTICE COMPLIANCE GUIDANCE - Jeffery M. Cross

§ 2.01

Introduction to the Sentencing Guidelines

§ 2.02

Historical Background of the Sentencing Guidelines

 

§ 2.03

The Organizational Guidelines

§ 2.04

Introduction to Compliance Guidance from the Department of Justice

§ 2.05

Background to the Compliance Guidance Issued by the Criminal and Antitrust Divisions

§ 2.06

An Effective Compliance Program Under Guidance from the Criminal and Antitrust Divisions

§ 2.07

Indirect Benefits of an Effective Compliance Program

§ 2.08

An International Standard?

§ 2.09

Compliance Program Checklist

Chapter 3 THE SARBANES-OXLEY AND DODD-FRANK ACTS: RULES FOR CORPORATE GOVERNANCE AND COMPLIANCE-  Jonathan T. Marks

§ 3.01

Introduction and Overview

§ 3.02

Regulatory Background and Applicability

§ 3.03

The PCAOB

§ 3.04

The Gatekeepers: Auditors and Attorneys

§ 3.05

Independence, Duties and Power of the Audit Committee

§ 3.06

Certification Requirements—Sections 302, 906, and 404

§ 3.07

Management Assessment of Internal Controls Under Section 404

§ 3.08

Measures for Enhanced Financial Disclosure

§ 3.09

Corporate Responsibility Requirements

§ 3.10

Remedies and Enforcement

§ 3.11

Changes to the NYSE and NASDAQ Rules

§ 3.12

Implementation of and Reactions to SOX

§ 3.13

The Financial Crisis of 2008 and the Dodd-Frank Act

§ 3.14

Recent Developments

Chapter 4 CORPORATE ANTITRUST LIABILITY AND COMPLIANCE PROGRAMS - Jeffery M. Cross

§ 4.01

Background

§ 4.02

The Relevance of Compliance Programs to Corporate Criminal Antitrust Liability

 

§ 4.03

The Relevance of Compliance Programs to Corporate Civil Liability

§ 4.04

The Potential Liability of Directors—The Caremark Decision

Chapter 5 WHO IS THE COMPLIANCE OFFICER?

§ 5.01

Defining the Role of the Chief Compliance Officer

§ 5.02

Qualifications of the Chief Compliance Officer

§ 5.03

Conflicts in the Role of Chief Compliance Officer; Compliance Officer Liability

§ 5.04

Filling the Chief Compliance Officer Role

§ 5.05

Ethical and Fiduciary Obligations of the Compliance Officer

§ 5.06

The Compliance Officer Under U.S. Securities Regulation Laws

Chapter 6 ETHICS AND THE CORPORATION

§ 6.01

Introduction

§ 6.02

Major Components of Effective Compliance Programs

§ 6.03

Implementing Compliance and Ethics Programs

PART II IDENTIFYING YOUR COMPLIANCE RISKS

Chapter 7 ASSESSING YOUR RISKS

§ 7.01

The Compliance Risk Assessment and Analysis

§ 7.02

Looking at Your Company's Activities

§ 7.03

Looking at External Developments

§ 7.04

Assembling the Assessment

§ 7.05

Reputational Risk

Chapter 8 HEALTH CARE COMPLIANCE PLANS - David A. Koenigsberg

§ 8.01

Introduction

§ 8.02

Medicare/Medicaid

 

§ 8.03

Enforcement

§ 8.04

Federal Sentencing Guidelines

§ 8.05

Health Care Compliance Programs

§ 8.06

OIG Guidance Suggestions

§ 8.07

Employee Education About False Claims Laws Required by the Deficit Reduction Act of 2005

§ 8.08

Publicly Available Compliance Documents

Chapter 9 E-COMPLIANCE - Vincent Polley and Jonathan Rubens

§ 9.01

What Is E-Compliance?

§ 9.02

Advertising

§ 9.03

B2B and Antitrust

§ 9.04

Copyright

§ 9.05

Social Media, Defamation, and Other Electronic Misbehavior

§ 9.06

Domain Names

§ 9.07

E-Mail and Electronic Documents

§ 9.08

Electronic Transactions

§ 9.09

Linking and Crawling

§ 9.10

Privacy and Cybersecurity

§ 9.11

SPAM and Spyware

§ 9.12

Securities Law

§ 9.13

Tax Law

§ 9.14

Information Security and Identity Theft

§ 9.15

Security Breach Notification Laws

§ 9.16

Net Neutrality

§ 9.17

FTC Proposed Online Behavioral Advertising Privacy Principles

Chapter 10 COMPLIANCE PROGRAM FOR MANUFACTURING PLANTS - Donna Bunch Coaxum

§ 10.01

Taking Preventive Measures

§ 10.02

The Type of Program to Establish

§ 10.03

Sample Manufacturing Plant Program and Considerations

§ 10.04

Product Safety and Facility Security After 9/11

 

§ 10.05

Reaching the Blue-Collar Employee

§ 10.06

Materials Used in Manufacturing

PART III ADDRESSING YOUR COMPLIANCE RISKS

Chapter 11 LEGAL AND PRACTICAL ASPECTS OF RECORDS AND INFORMATION MANAGEMENT - William A. Brandt, Jr.

§ 11.01

Introduction

§ 11.02

Understanding Information Processes

§ 11.03

The Risks of Uncontrolled Information

§ 11.04

Obstacles to the Creation of Records and Information Management Programs

§ 11.05

Developing a Sound Records and Information Management Program

§ 11.06

Conclusion

Chapter 12 USING HOTLINES TO REPORT WRONGDOING—AND IMPROVE THE ORGANIZATION - Alice Peterson

§ 12.01

Introduction

§ 12.02

Purposes Served by Ethics Reporting Mechanisms

§ 12.03

The Value of a Disciplined Process and System for Handling Hotline Issues

§ 12.04

Confidential Employee Communication Options

§ 12.05

Determining How the Hotline Will Work and Who Will Do What

§ 12.06

The Board of Directors' Role in Overseeing the Hotline, Ethical Culture

§ 12.07

Privacy and Data Protection/International Implementation

§ 12.08

Sample Ethics Hotline Policy

 

Chapter 13 THE CORPORATE OMBUDS—AN INFORMAL AND CONFIDENTIAL ALTERNATIVE FOR RESOLVING DISPUTES AND ADDRESSING CONFLICT IN THE WORKPLACE - Melissa Connell

§ 13.01

History and Distinctions of Ombudsmen

§ 13.02

Independence

§ 13.03

Neutrality and Impartiality

§ 13.04

Confidentiality

§ 13.05

Informality and Other Standards

§ 13.06

The Ombuds Privilege and Other Legal Ramifications

§ 13.07

Functions of the Ombudsman

§ 13.08

Benefits of Establishing the Ombuds Office

§ 13.09

Setting up an OMBUDS Office

§ 13.10

Certification for Certified Organizational Ombudsman Practitioners

Appendix 13-1: References

Chapter 14 INTERNATIONAL ACTIVITIES - John J. Fedele, Crystal R. Jezierski, Sylwia A. Lis,  and Alexandre Lamy

§ 14.01

Introduction

§ 14.02

Antiboycott

§ 14.03

Antitrust

§ 14.04

Bribery and Corrupt Practices

§ 14.05

Child and Forced Labor

§ 14.06

Data Security and Privacy

§ 14.07

Export Controls, Trade Sanctions, and Foreign Investment

Chapter 15 CORPORATE CODES, POLICIES AND COMPLIANCE PROGRAMS

§ 15.01

Codes of Conduct and Ethics

§ 15.02

What Should Be in Your Code?

§ 15.03

Going Beyond the Code: The Compliance Program

§ 15.04

Codes for Third Parties

 

PART IV COMMUNICATIONS AND OTHER PROGRAM COMPONENTS

Chapter 16 TOOLS FOR IMPLEMENTATION

§ 16.01

Introduction

§ 16.02

The Structure of the Compliance Program

§ 16.03

The Carrot and the Stick (Incentives and Discipline)

§ 16.04

Recordkeeping

§ 16.05

Demonstrating an Effective Compliance Program

§ 16.06

The Reporting Path

§ 16.07

The Role of Other Departments

§ 16.08

Getting Help

Chapter 17 COMMUNICATIONS AND TRAINING

§ 17.01

What Is Effective Communication?

§ 17.02

Effective Presentations

§ 17.03

Speaking Skills

§ 17.04

Written Support Materials

§ 17.05

Audiovisual Support

§ 17.06

Media Variety

Chapter 18 (on CD-ROM only) EIGHT STEPS TO SUCCESSFULLY IMPLEMENTING AN ENTERPRISE-WIDE ETHICS AND COMPLIANCE eLEARNING INITIATIVE -
Erica Salmon Byrne and Eric Morehead

§ 18.01

Introduction

§ 18.02

Step One: Determine Training Goals and Estimated Budget

§ 18.03

Step Two: Assemble, Staff, and Meet with the Steering Committee

§ 18.04

Step Three: Create a Code of Conduct Training Plan

§ 18.05

Step Four: Determine a Three- to Five-Year Ethics and Compliance Training Plan

§ 18.06

Step Five: Determine Technology and Deployment Strategy and Preferences

 

§ 18.07

Step Six: Receive Proposals from Vendors; Analyze, Narrow, and Negotiate Contract

§ 18.08

Step Seven: Customize Programs, Conduct Systems Integration, and Design Communications Plan

§ 18.09

Step Eight: Launch Training Initiative and Drive Completion Rates

Chapter 19 (on CD-ROM only) USING MULTIMEDIA SIMULATIONS FOR COMPLIANCE TRAINING - Kemi Jona, Ph.D.

§ 19.01

Introduction

§ 19.02

Why Compliance Training Can Be Ineffective

§ 19.03

Creating Effective Compliance Training

§ 19.04

Goal-Based Scenarios: A Framework for Developing Effective Computer-Based Learning Environments

§ 19.05

Case Studies of Compliance-Related Learning Systems

§ 19.06

Principles to Improve the Effectiveness of Compliance Training in Your Organization

Chapter 20 USING TECHNOLOGY FOR COMPLIANCE TRAINING AND MONITORING - Christian E. Liipfert

§ 20.01

Introduction

§ 20.02

Training

§ 20.03

Compliance Monitoring Technology

Chapter 21 WRITING FOR UNDERSTANDING - Sarena Green

§ 21.01

The State of Written Compliance Materials

§ 21.02

Ten Writing Tips

§ 21.03

Before and After Example

 

Chapter 22 USE OF THE “DRAMATIZATION” IN COMPLIANCE TRAINING - Tim Mooney

§ 22.01

Introduction

§ 22.02

Other Ineffectual Compliance Techniques

§ 22.03

What the Theater Brings to Business

§ 22.04

Working with a Writer

§ 22.05

Video Issues

§ 22.06

From Idea to Script: Money Laundering

PART V EVALUATION

Chapter 23 MEASURING YOUR PROGRAM

§ 23.01

Introduction

§ 23.02

Thinking About the Purpose of Compliance Programs

§ 23.03

Risk Analysis

§ 23.04

Benchmarking

§ 23.05

Objective Evaluation

§ 23.06

Subjective Evaluation

§ 23.07

Auditing and Compliance

§ 23.08

Investigations of Wrongdoing

§ 23.09

The Self-Critical Evaluation Privilege

Chapter 24 MAKING THE BEST OF A BAD SITUATION: INVESTIGATING AND DISCLOSING WRONGDOING - Scott R. Lassar

§ 24.01

The Possibility of Wrongdoing

§ 24.02

Conducting an Internal Investigation

§ 24.03

Disclosing Wrongdoing

§ 24.04

Responding to a Government Investigation

§ 24.05

Cooperating with the Government

§ 24.06

Taking the Punishment

 

Chapter 25 COMPLIANCE WITH GOVERNMENT AGREEMENTS  AND DECREES

§ 25.01

Compliance with Government Agreements & Decrees

§ 25.02

Compliance with the Sentencing Guidelines

PART VI KEY LEGAL AREAS

Chapter 26 ABANDONED PROPERTY - Scott J. Heyman

§ 26.01

State Laws

§ 26.02

Failure to Comply with Legal Requirements

§ 26.03

Establishing a Compliance Procedure

Chapter 27 ADVERTISING

§ 27.01

Overview

§ 27.02

FTC Rules

Chapter 28 ANTITRUST

§ 28.01

Background

§ 28.02

Pricing

§ 28.03

Trade Associations and Joint Activity

§ 28.04

Bigness and Badness

§ 28.05

The Freedom to Sell

§ 28.06

Lawsuits and Privilege

§ 28.07

Imposed Antitrust Compliance Programs

§ 28.08

Director Interlocks

Chapter 29 ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY COMPLIANCE PROGRAMS - Mary Robinson

§ 29.01

Background

 

§ 29.02

Employee Responsibilities

§ 29.03

International Situations

§ 29.04

Attorney Responsibilities

Chapter 30 COMMODITY AND FINANCIAL FUTURES TRADING - Leslie A. Blau and Carl Gilmore

§ 30.01

Overview

§ 30.02

Key Statutes

§ 30.03

Agencies and Organizations

§ 30.04

Who Must Register—Generally

§ 30.05

Major Categories of Registration

§ 30.06

Due Diligence—Obtaining Information on Registrants from NFA

§ 30.07

Futures Exchanges

§ 30.08

Swaps Execution Facility (“SEF”)

§ 30.09

Futures Clearing Organizations

§ 30.10

Negotiating Customer Account Agreements

§ 30.11

Futures Margin

§ 30.12

Segregation of Customer Funds

§ 30.13

Churning

Chapter 31 COMMUNICATIONS AND CRISIS MANAGEMENT - Christopher Beard

§ 31.01

Communications

§ 31.02

Confronting Disasters

Chapter 32 CONFIDENTIAL INFORMATION AND TRADE SECRETS - Charles B. Brown

§ 32.01

Background

§ 32.02

Ethical Guidelines

§ 32.03

What Is a “Trade Secret”?

§ 32.04

Misappropriation and Other Violations

§ 32.05

Federal Defend Trade Secrets Act

 

Chapter 33 CONSUMER PRODUCT SAFETY - Debra S. Rade

§ 33.01

Corporate Policies

§ 33.02

Federal and Private Standards

Chapter 34 CONTRACTS

§ 34.01

Contract Law Training

§ 34.02

Special Considerations for Sales Employees

Chapter 35 COPYRIGHT

§ 35.01

What a Copyright Does

§ 35.02

Corporate Concerns

§ 35.03

Copyright Treaties and Acts

Chapter 36 CORPORATE GOVERNANCE AND SECURITIES LAW - Krista A. Endres and Talita Ramos Erickson

§ 36.01

Background

§ 36.02

Compliance, Corporate Law, and Corporate Governance

§ 36.03

Securities Laws

Chapter 37 CREDIT AND COLLECTION - John Verscaj

§ 37.01

Overview

§ 37.02

Federal Statute

Chapter 38 DOCUMENTS

Chapter 39 EMPLOYMENT LAW - Suzanne Alexander

§ 39.01

Introduction

 

§ 39.02

Age Discrimination in Employment Act

§ 39.03

Americans with Disabilities Act

§ 39.04

At-Will Employees and Personnel Handbooks

§ 39.05

Child Labor and the Fair Labor Standards Act

§ 39.06

Civil Rights Act of 1964

§ 39.07

Covenants Not to Compete

§ 39.08

Executive Order 11246 (1965)

§ 39.09

Employee Polygraph Protection Act of 1988 and Background Checks

§ 39.10

Family and Medical Leave Act

§ 39.11

Independent Contractors (Temporary, Contingent Employees)

§ 39.12

Immigration Reform and Control Act of 1986

§ 39.13

Sexual Harassment

§ 39.14

Telecommuting and Employee Supervision

§ 39.15

Uniformed Services Employment and Reemployment Rights Act of 1994

§ 39.16

Worker Adjustment Retraining and Notification Act of 1988 and Similar State Laws

§ 39.17

Whistleblowing

Chapter 40 ENVIRONMENT - Jennifer T. Nijman and Kristen L. Gale

§ 40.01

Introduction

§ 40.02

Background

§ 40.03

Establishing an Environmental Management System

§ 40.04

Maintaining and Improving an EMS

§ 40.05

Available Resources

§ 40.06

Conclusion

Chapter 41 FOOD LAW - Gary Jay Kushner and Brian D. Eyink

§ 41.01

Background: Federal Regulation of Food

§ 41.02

Adulteration: FDA Food Safety Requirements

§ 41.03

Misbranding: FDA Food Labeling Requirements

§ 41.04

Imports

§ 41.05

Inspections, Enforcement, and Recalls

§ 41.06

Special FDA-Regulated Foods

 

§ 41.07

USDA Regulation of Meat and Poultry Products

§ 41.08

Other Agencies Involved in Regulating Foods

Chapter 42 GOVERNMENT CONTRACTS -  Barbara Kinosky

§ 42.01

Overview

§ 42.02

Procurement Integrity Act

§ 42.03

Anti-Kickback Act

§ 42.04

Truthful Cost or Pricing Data

§ 42.05

Conflicts of Interest

§ 42.06

Trade Agreements Act (“TAA”) and Buy American Act (“BAA”)

§ 42.07

Issues Unique to GSA Schedule Contracts

§ 42.08

Labor Laws Unique to Federal Contractors

§ 42.09

False Claims and False Statements Acts

Chapter 43 MERGERS

§ 43.01

Background

§ 43.02

The Merger Review Regime

§ 43.03

The Compliance Standards of the Acquired Company

Chapter 44 MONEY LAUNDERING

Chapter 45 OCCUPATIONAL SAFETY AND HEALTH (OSHA) - Janine Landow-Esser and Adam Falkof

§ 45.01

Introduction

§ 45.02

Background

§ 45.03

Establishing an OSHA Compliance Program

§ 45.04

Maintaining Compliance

§ 45.05

The OSHA Enforcement Program

§ 45.06

Case Example: The 2005 Texas City Disaster

§ 45.07

Potential Future Changes: I2P2

§ 45.08

Available Resources

§ 45.09

Conclusion

 

Chapter 46 PATENTS - Erik B. Flom

§ 46.01

Introduction

§ 46.02

Patent Enforcement Concerns

§ 46.03

Perfecting Patent Rights or Their Alternatives

Chapter 47 POLITICAL ACTIVITIES - James Portnoy

§ 47.01

Background

§ 47.02

Lobbying Activities

§ 47.03

Political Contributions

§ 47.04

Gifts to and Entertainment of Public Officials

Chapter 48 DATA PRIVACY & SECURITY - Alan Friel, Adam Kardash, and Sarah Pearce

§ 48.01

Background

§ 48.02

United States

§ 48.03

Canada

§ 48.04

Data Protection and Privacy in the European Union

§ 48.05

Compliance Programs

Chapter 49 SERVICE OF PROCESS AND OTHER GOVERNMENT CONTACTS

§ 49.01

Background

§ 49.02

Ex Parte Contacts

§ 49.03

Search Warrants and “Dawn Raids”

§ 49.04

Service of Process

Chapter 50 TRADEMARK - Steven Mandell

§ 50.01

Trademark Advantages

§ 50.02

Protecting a Trademark

§ 50.03

Legal Rights Conferred

 

§ 50.04

Compliance Indicators

§ 50.05

Domain Names

§ 50.06

Other Resources

Chapter 51 CORPORATE SOCIAL RESPONSIBILITY - Sarah A. Altschuller

§ 51.01

CSR and Compliance: Strategic Responses to Evolving Societal Expectations

§ 51.02

The Value of Integrating CSR and Compliance

§ 51.03

CSR and Compliance: Practical Approaches to Integration

§ 51.04

Conclusion

Table of Cases

Index

About The Experts
Highlights

Highlights of some of the new material discussed in the Third Edition include:

  • How does the concept of “ethics” mesh with the concept of “compliance?” See § 1.01.
  • Chapter 3, covering compliance aspects of the Sarbanes-Oxley and Dodd-Frank Acts, has been completely revised.
  • Chapter 4 has been updated to reflect the changed enforcement policy of the Antitrust Division of the Department of Justice (DOJ).
  • When a compliance officer is a family member, there may be a conflict of interest. See § 5.03.
  • Management must visibly support every aspect of a compliance program in order for employees to believe that they must follow it. See § 6.02[C].
  • Risk assessments should now consider required disclosure regarding an organization’s program to deal with environmental, social, and governance issues. See § 7.04.
  • Could a statement that a company followed strong compliance guidelines actually cause securities law problems as a false statement? See § 7.04.
  • The principle of prosecuting individuals as well as their organizations seems to still be part of the DOJ enforcement philosophy. See § 8.04.
  • How do companies find out about wrongdoing? Usually through a tip. See § 12.01[A].
  • Fear of a defamation suit should not deter companies from conducting a thorough investigation. See § 24.02.
  • A quick response to a government investigation may result in more lenient treatment. See § 24.05.
  • Self-reporting may enable a company to qualify for a deferred prosecution agreement. See § 25.01.
  • The DOJ has released guidelines on when it will request that a monitor be appointed and how it selects monitors. See § 25.02[B].
  • A company is usually advised not to stonewall when bad news is forthcoming. See § 31.01.
  • The Securities and Exchange Commission may go after a private company if it engages in fraudulent conduct. See § 36.03.
  • New rules from the Department of Labor explain how it analyzes joint employment situations. See § 39.11.
  • How can you monitor what the Federal Bureau of Investigation takes when they serve a search warrant? See § 49.03.
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