FCPA Compliance and Ethics Blog

May 14, 2013

What is Your Compliance Strategy?

Do you have a strategy? The Houston Astros claim to have a strategy that involves being the worst team in baseball for up to the next five years and then magically they will become a winner. I suppose that having the worst record in baseball demonstrates that they are on the right path. Another three game series, another three game sweep by the visiting team, thus ending three games of some of the most pathetic baseball I have ever seen. However, even the ever-optimistic Astros manager, Bo Porter, admitted in an interview to the Houston Chronicle last week that “He has no idea if the Astros’ rebuilding plan will work.”

Now suppose you are in management, though not in the Houston Astros where you are implementing a strategy to set the all-time season record for losses, but a successful compliance program. How can you go about it? While most companies have compliance programs, they do not have a compliance strategy. To endure, a compliance strategy must address the interests of all stakeholders: investors, employees, customers, governments, NGOs, and society at large. A compliance strategy should increase shareholder value while at the same time improve the firm’s performance on environmental, social, and governance (ESG) dimensions. These concepts were recently explored in an article on sustainability in the May issue of the Harvard Business Review (HBR), article entitled “The Performance Frontier”. I found the concepts that the authors Robert G. Eccles and George Serafeim put forth, translate into the compliance arena as well.

The basic posit is that corporate investments in compliance do not necessarily require trade-offs in financial performance. Instead, if a company will focus on the issues that are the most relevant to both risk and shareholder value, a company should be able to boost both financial value and compliance performance. The authors believe that to do so, companies should focus on four areas.

1.      Identify Material Compliance Issues

While the overall list of compliance issues may be long and broad, the key is to determine the material issues to your company. In the context of sustainability, the authors suggest you can use a “Which Issues Matter Most” data map. They also phrased it in another manner by stating, “Evidence of economic impact is determined by evaluating both anecdotal reports and quantitative studies to gauge whether management (or mismanagement) of the issue will affect traditional corporate valuation parameters: revenue growth, return on capital, risk management, and management quality.” In the compliance arena, this would correspond to a risk assessment.

2.      Quantify the Relationship Between Financial and Compliance Performance

After you understand your company’s material compliance issues, assess the impact that improvements in each would have on financial performance. Compliance performance has many dimensions and depending on the company’s compliance strategy and the issue being considered, the most important dimension could be cost reduction, revenue growth, or gross margin defense. In the sustainability area, the authors state that a “host of factors complicate evaluations of the relationship between ESG and financial performance. Not the least of them are limitations on the ability to precisely measure ESG performance—a challenge that SASB and others are working to address.” However, even with this difficulty, I believe that a company can make an informed estimate of the slope of the performance-frontier curve for any pair of compliance and financial variables by determining whether each incremental improvement in compliance performance causes a corresponding positive or negative change in financial results – or has no impact.

3.      Innovate Products, Processes and Business Models

As with any strategy, it should be informed by your analysis. Once you determine the compliance issues to focus on, you should benchmark your industry peers on these issues. If your company’s performance falls short of industry benchmarks in a particular risk parameter, getting it up above par is the first priority. Within the sustainability context, the authors state that “At the very least it will mitigate your risks, since stakeholders tend to focus on industry laggards in campaigns aimed at increasing corporate ESG performance. Many improvements, such as reducing manufacturing waste, involve minor or moderate innovations that can enhance efficiency and, therefore, financial performance. Those sorts of innovations are increasingly necessary (but not sufficient) to ensure competitiveness.”

In the compliance arena, there are many resources available to you for benchmarking. The first place to start is the Department of Justice (DOJ)/Securities and Exchange Commission (SEC) Foreign Corrupt Practices Act (FCPA) Guidance released last November. The “Hallmarks of Effective Compliance Programs” set forth in the Guidance is an excellent compilation of where we are and what you need in place to go forward. I recommend this as a good a starting point to evaluate the state of an ongoing compliance regime so assess your company’s risks and use these hallmarks as a basis to move forward.

4.      Communicate the Company’s Innovations to Stakeholders

This may be one area of a typical compliance strategy that a company does not normally take into account. A company’s compliance function cannot assume that shareholders and other stakeholders will understand how its innovations have improved both compliance and financial performance – and how the two interrelate – unless such information is communicated effectively. As the authors state in the framework of sustainability “This is more than a matter of public relations; major innovations often require substantial investments whose benefits will not be seen for years to come. If a company expects shareholders to commit for the long term in order to receive those benefits, it needs to provide them with information that justifies their investments.” The authors call this “integrated reporting” and I believe that this is also true in the area of compliance.

As a communications tool, integrated reporting involves more than posting a PDF version of the Code of Conduct on a company’s website. As with almost all reporting, the most effective reporting is as much about listening as talking, and it serves as a key platform for stakeholder engagement. The authors believe that integrated reporting is a “way to establish a conversation that considers a company’s performance in a holistic way, identifies the tough trade-offs, and builds a case for innovation and the benefits it can generate. This engagement is also central to eliciting feedback on how well the company is meeting expectations, the quality of its communications, and what it can do to improve them.”

On the final point, the authors state something that I believe is often overlooked as a part of any compliance strategy. It is that “integrated reporting enhances discipline. It forces management and employees to think about both the financial and the ESG implications of their decisions and helps spur innovation as they seek to improve both kinds of performance.” The FCPA Guidance speaks to Incentives and Disciplinary Measures, which is generally considered to be both the carrot and the stick. The stick to demonstrate that there should be appropriate discipline in place and administered for any violation of the FCPA or a company’s compliance program. The carrot as the DOJ and SEC recognize that positive incentives can also drive compliant behavior. This would dovetail with the authors’ observation that integrated reporting enhances discipline.

Eccles and Serafeim discuss in their article the corporate benefits of having a sustainability strategy. I think their ideas are applicable to the compliance field and give you new ways to think about old problems. As for the Astros, maybe they could develop a winning strategy.

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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