FCPA Compliance and Ethics Blog

December 11, 2013

Keep Your Hand on the Control

#14748 Hand on the Throttle by Karl-Heinz Morawietz 2011-01-27Yesterday Nelson Mandela’s casket was driven to the state capital where he will lay in state until his funeral on Sunday 15th December. Dignitaries from all over the world will attend. Mandela was praised for his non-violent approach to ending apartheid in South Africa and his leadership in the peaceful transition of power. But he was also recognized as incorruptible. So today we honor that aspect of his career.

I am continually amazed at the seemingly disparate current events which provide tangible lessons for the compliance practitioner. In an article in the New York Times (NYT), entitled “Hearings on San Francisco Crash Set to Explore Broader Problems”, reporter Matthew L. Wald wrote about the upcoming National Transportation Safety Board (NTSB) hearings on the deadly plane crash last July at San Francisco International Airport. Investigators quickly were able to determine the immediate cause of the crash; that being the pilots failure to monitor their airspeed. However these hearings will go further and try to determine more basic reasons which led to the pilots to make the decisions which caused or contributed to the disaster.

The first was an over-reliance on technology. Crews for the airline involved, Asiana, are “accustomed to programming the autopilot to land their planes” rather than manually taking over during the landing procedure. The first problem was compounded and became disaster when a second problem apparently arose which was that the pilots had “evidently limited ability to manage the ubiquitous automated systems in the cockpit.” So they flew expecting the auto-pilot to land the plane but did not realize or appreciate that the auto-throttle portion of the system was in the off position. The article was clear that, even with these reasons, the problems which led to the crash were “more broad than bad pilots.”

The reliance on technology or big data has become an issue in the Foreign Corrupt Practices Act (FCPA) or other anti-corruption laws such as the UK Bribery Act. The Department of Justice (DOJ) has brought up the tool of transaction monitoring as a best practice at least since the Morgan Stanley Declination. But, just as these tools are important to the compliance practitioner, it is important to keep in mind that one of the remedies certain US based airlines have come up with will make it harder for crews to overlook problems like low airspeed, even when a plane’s auto-pilot is turned on during a descent. The solution is elegant for its simplicity, certain airlines mandated that “a pilot keep a hand on the throttle, to sense its position, during descent.” Simple, elegant and cost effective I would add.

For the compliance professional this also means a compliance program is more than simply about numbers and systems. As Paul McNutly and Stephen Martin say in their five essential elements of an effective compliance program, it is important to not only understand but ascertain if your employees are staying with the compliance program. Even after all the important ethical messages from management have been communicated to the appropriate audiences and key standards and controls are in place, there should still be a question of whether the company’s employees are adhering to the compliance program. Two of the seven compliance elements in the Federal Sentencing Guidelines call for companies to monitor, audit, and respond quickly to allegations of misconduct. These three highlighted activities are key components enforcement officials look for when determining whether companies maintain adequate oversight of their compliance programs.

The next area that the NTSB hearings will look at is training and procedures. One thing that US pilots are trained on and given a wide berth to do is to “speak up if they sense a problem, even if the pilot at the controls has seniority, and to listen to subordinates.” Recognizing that part of the issue here is cultural, because South Korean crews “have had trouble with those procedures”,  the clear message here is training. For the compliance practitioner, the message is also clear, again it is training, training and training. Whether you call it a ‘Speak Up, Speak Out’ or ‘Raise Your Hand’ culture, such a system must be put in place to allow an employee who senses a problem to get that information to people who can take a more focused look at the problem.

But, more than training, the company has to commit to more than having a system. The company must commit to listening. One of the biggest changes in the airlines cockpits is that more senior pilots are instructed listen to junior pilots. The same must be true in a company. The company has to listen to employee concerns. This requirement to listen has been made even stronger with the Dodd-Frank Whistleblower provisions. But the clear message for the compliance practitioner is that speaking up and listening are a two-way exercise.

Just as in every catastrophic accident, in almost every circumstance regarding a compliance issue which becomes a FCPA violation, there is at some point a situation where an employee did not report a situation or event up to an appropriate level for additional review. This failure to escalate led to the issue not reaching the right people in the company for review/action/resolution and the issue later became more difficult and more expensive to deal with in the company. This means that a company needs to have a culture in place to not only allow elevation but to actively encourage elevation. Additionally, both a structure and process for that structure must exist. Lastly, while a whistleblower process or hotlines are necessary these should not be viewed as the only systems which allow an employee to escalate a concern. In the cockpit it means a junior pilot can speak directly to a more senior pilot.

One of the things that I have learned practicing compliance is that process is very important. But the investigation into the Asiana crash shows that keeping your hand on the throttle to understand the pulse of things is a very good technique to maintain.


Please join myself and Eddie Cogan, CEO of Catelas as we discuss Risk-Based 3rd Party Vetting, Screening and Monitoring Strategies for High Risk Jurisdictions Thursday, December 12. For information and registration click here.

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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