FCPA Compliance and Ethics Blog

March 18, 2013

An Oscar Winner for Compliance

Ben Affleck has certainly had his share of ups and downs in his professional career. He shared an Oscar for Best Original Screenplay for Good Will Hunting with his fellow Bostonian buddy Matt Damon at age 25. Thereafter things were not always at that same height for him professionally. He had a very public affair and engagement to Jennifer Lopez, in which there were jointly knows as ‘Bennifer’ which ended when the engagement was broken off. He appeared in some movies that, how can one best put it, were somewhat less than Oscar worthy, Gigli and Surviving Christmas come to mind. But once again proving that F. Scott Fitzgerald’s adage that “There are no second acts in American lives” is not, and perhaps never was, true Affleck was awarded this year’s Oscar award for Best Picture for his work as the Director on Argo.

In a recent article in the Houston Business Journal (HBJ), entitled “Business lessons from an Academy Award winner”, Harvey Mackay wrote about some of the lessons that he drew from Affleck’s professional journey. Affleck’s lessons provide some interesting perspectives for the compliance practitioner. When accepting the Oscar, Affleck said “I never thought I would be back here, but I am because of so many wonderful people who extended themselves to me, who had nothing to benefit from it.” From this statement Mackay drew the lesson of the importance of networking and mentoring. Mackay wrote that “Over the years he has reached out to a lot of people in Hollywood who helped him learn the movie business and advance his career. Members of the Academy were able and willing to help him, even though he wasn’t necessarily in a position to reciprocate.

As a compliance practitioner, the importance of networking and mentoring cannot be overstated. Not only is it important in assisting to advance your own career but also your professional grown. In my own blogging and social media career I have been fortunate to have several mentors; Dick Cassin, the FCPA Professor and Francine McKenna being three prominent ones. But more than simply having such personal mentors, compliance professionals need to turn to others in our profession for professional guidance and support. Almost everyone I have approached for help, guidance or advice has given it to me freely, without even a hint of any desire for reciprocation.

One of the ways you can do so is to set up an informal compliance roundtable in your city or community. By this I mean an informal group, without dues or fees that can get together and discuss matters of mutual interest. Together with Mike Snyder, of Donovan Watkins, and Dan Chapman we have recently started one here in Houston. Last week I spoke at one such group for compliance professionals in Singapore. But the key to making such a group work is that everything said is off the record and stays within the four walls of the room. In these events, compliance practitioners can ask very detailed, fact specific questions and draw upon a wide variety of sources for guidance. All one really needs is a facilitator to throw out one question and see where it goes from there. So if you do not have such a group in your city, town or community my suggestion would be for you to send an email around and see who might be interested. I think that you will find it can be a great way to network and either find or be a mentor to other compliance practitioners.

The second business lesson that Affleck gave during his Oscar acceptance speech was that “You have to work harder than you think you possibly can.” I was in private practice for 20 years. One of the boneheaded things I always thought was that lawyers went in-house so they would not have to work so much. Boy did I get that wrong. If you work for an international company you know that time zones are basically meaningless. Five PM in China is Five AM in the US. I also heard several in-house lawyers tell me that they went to work for a company for lifestyle reasons. While that may have been true, they found out what I found out, that in-house lawyers work very long and very hard.

In almost every compliance group I have ever known, there are never enough resources. If that is the situation you face, try and find a way to do more with less. There are several other departments in your company which may be able to help in the goal for your company to do business in a manner compliant with your Code of Conduct and the Foreign Corrupt Practices Act (FCPA) and UK Bribery Act. One department which you can work with is Human Resources (HR). HR can also be used to ‘connect the dots’ in many divergent elements in a company’s FCPA compliance and ethics program. The roles include training, employee evaluation and succession planning, hotlines and investigations and background screenings. By asking HR to expand their traditional function to include the FCPA compliance and ethics function, you can move towards a goal of a more complete compliance program, while not significantly increasing costs. Additionally, by asking HR to include these roles, it will drive home the message of compliance to all levels and functions within a company and help to make such behavior will become a part of a company’s DNA.

The third business lesson is one that Affleck closed his Oscar acceptance speech with and as Mackay noted “possibly the most important”. He quoted that Affleck said, “It doesn’t matter how you get knocked down in life because that’s going to happen. All that matters is that you gotta get up.” For the compliance practitioner, I would say this means that even with a robust compliance program in place, you will still have issues arises because there is no compliance which can assure 100% compliance, 100% of the time. Just as Affleck said that “you gotta get up”; in many ways if you do have a compliance issue arise, what matters is how you handle it.

In the context of Paul McNutly’s three maxims regarding any compliance issue; he said there were three questions he would ask when he was Deputy Attorney General. They were: (1) What did you do to prevent it?; (2) What did you find when you looked into it?; and (3) What did you do when you found out about it? But in large part, he focused on Maxim 3. So, in addition to a thorough investigation and reporting, the key is what did your company do to remedy the issue in question? Did you discipline those employees or third parties involved in the conduct at issue? Did you remedy any defect in your compliance program which may have allowed the issue to arise? Did you expand your compliance program to handle future issues? Did you train employees based on the issue or other high risk factors? The point follows Affleck’s last statement, “you gotta up”. How you respond as your company’s compliance representative may well be a significant factor in determining your final result with the Department of Justice (DOJ) or Securities and Exchange Commission (SEC).

Ben Affleck’s Oscar win was certainly a validation for someone who fell from great heights early in his career. While most of us may not scale to such heights early in our career, or perhaps ever, the tools, techniques and work ethic that Affleck used so that he once again could give an Oscar acceptance speech are some of the same tools that you can use as a compliance practitioner for your own career, to better and advance yourself professionally and to help your company through any compliance issues that may arise during your tenure in a compliance group. They are good words for you to think about going forward.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

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