FCPA Compliance and Ethics Blog

February 9, 2015

COSO and Internal Controls – Part III

Dean SmithThis post continues my exploration of internal controls and how companies can demonstrate compliance with the internal controls requirement under the Foreign Corrupt Practices Act (FCPA) by adhering to the Committee of Sponsoring
Organizations of the Treadway Commission (COSO) 2013 Framework. To help introduce today’s topic, I cannot think of a much more appropriate person to honor than Dean Smith, who died yesterday. Smith coached the North Carolina Tar Heels basketball team for 36 years. He retired with 879 victories, a winning percentage of 77.6% and two NCAA championships. He was one of the true giants of college coaching and the game of basketball itself. He will be missed but certainly never forgotten. If there was ever a coach that epitomized internal controls and frameworks, it was Dean Smith.

I restart my discussion of the COSO 2013 Framework with a look at the third component, Control Activities. In its Executive Summary of the 2013 Framework, COSO said these “are the actions established through policies and procedures that help ensure that management’s directives to mitigate risks to the achievement of objectives are carried out. Control activities are performed at all levels of the entity, at various stages within business processes, and over the technology environment. They may be preventive or detective in nature and may encompass a range of manual and automated activities such as authorizations and approvals, verifications, reconciliations, and busi­ness performance reviews. Segregation of duties is typically built into the selection and development of control activities. Where segregation of duties is not practical, manage­ment selects and develops alternative control activities.”

However, as with the other components of the COSO Cube, Control Activities are not to be taken in a vacuum. Larry Rittenberg, in his book COSO Internal Control-Integrated Framework, said the Control Activities “have traditionally received the most attention of the component” but noted that the real-world experience since the initial implementation of the COSO Framework back in 1992 has demonstrated that “the effectiveness of control activities must be evaluated with the context of the other five components.” Moreover, he believes that these conditions are aided by a company’s policies and procedures, which should help to lessen and manage risk going forward. Finally, Control Activities should be performed at all levels in the business process cycle within an organization.

The objective of Control Activity consists of three principles. They are:

(1) Principle 10 – “The organization selects and develops control activities that contribute to the mitigation of risks to the achievement of objectives to acceptable levels.”

(2) Principle 11 – “The organization selects and develops general control activities over technology to support the achievement of the objectives.”

(3) Principle 12 – “The organization deploys control activities through policies that establish what is expected and procedures to put policies into action.”

A White Paper, entitled “The Updated COSO Internal Control Framework”, emphasized the inter-related nature of the five objectives when it noted “The risk assessment driven by the company’s management provides a context for designing the Control Activities necessary to reduce risks to an acceptable level (Principles 10, 11 and 12). Note that Principle 10 deals with the selection and development of control activities that mitigate risk to the achievement of compliance objectives, and Principle 12 deals with the development of control activities through established policies and procedures. Principle 11 addresses the impact of controls over general technology to the extent they impact the achievement of control activities.”

Principle 10 – Control Activities to mitigate risk

Rittenberg noted that there is no “silver bullet” in selecting the right internal controls. Yet when combined with your risk assessment, this Principle would point to an integration of your policies, procedures and overall corporate responsibilities, which should be chosen “sufficiently to reduce the risk of not achieving the objectives to an acceptable level.” You should consider your relevant business processes, evaluate your mix of control activities and then consider at what levels within your organization they are applied. But Rittenberg cautions that you should not “begin an analysis of control activities with a list of controls and check off whether they are present or not present. Rather, controls should be assessed in relationship to the risk being mitigated.” 

Principle 11 – Control Activities over general technology

Last week I had a series of guest posts from Joe Oringel of Visual Risk IQ regarding the use of data analytics in your compliance program. The use of technology will be greater and more important going forward. I would certainly expect the Securities and Exchange Commission (SEC) to focus on a company’s use of technology in any evaluation of its overall compliance program.

Therefore, under this Principle you will need to determine not only the use of technology in your compliance related internal controls but also the use of such technology in your overall company business process. To do so, you will need to consider your technology infrastructure, around compliance internal controls, security management of the same and then use this information to move forward to obtain and implement the most appropriate technology around your compliance internal controls.

Principle 12 – Control Activities established through policies and procedures

This Principle should be the most familiar one to the compliance practitioner as it points to the establishment of policies and procedures to support deployment of your compliance regime. It also sets out the responsibility and accountability for executing policies and procedures, specifies and assures corrective action as required and mandates periodic reassessment. Interestingly it also directs that there be competent personnel in place to do so. Rittenberg noted, “Responsibilities for control activities should be identified through policies and various procedures. Processes should be in place to ensure that all aspects are implemented and working.”

While the objective of Control Activities should be the most familiar to the Chief Compliance Officer (CCO) or compliance practitioner, you may well think of it in a way that basketball fans thought of Dean Smith’s Four Corners offense; in other words boring. However, just as Smith’s innovation was based on crisp focus and outstanding teamwork, this objective demonstrates the inter-relatedness of all the five COSO objectives. It is your Control Environment and then Risk Assessment that should lead you to this point. It is the Control Activities objective that lays the groundwork for a living, breathing compliance program going forward.COSO Cube. jpg

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, 2015

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