Economic Downturn Week, Part I – Mapping of Your Internal Compliance Controls

This week I will present a series on steps that you can take in your compliance program if you find yourself, your company or your industry in an economic downturn. All of the recommendations I will make are ideas that have been put into action by companies currently facing these issues. They are ideas that you can use if you have scarce or lessened economic resources for your compliance function. Today I will take my cue from the recent Securities and Exchange Commission (SEC) enforcement action against BHP Billiton (BHP) as a key indicator of where greater and more rigorous SEC enforcement is heading. That is in the area of the enforcement of internal controls and steps that you can take right now, even with reduced head count and budgetary resources, to improve your Foreign Corrupt Practices Act (FCPA), UK Bribery Act or other anti-corruption compliance program.

However, before we get to that subject, I want to remember Marques Haynes, who died last week. Haynes was a basket baller extraordinaire who played with the Harlem Globetrotters off and on for 40 years. As was set out in his New York Times (NYT) obituary last week, Haynes “whose dazzling ball-handling skills, exhibited for more than 40 years as a member of the Harlem Globetrotters and other barnstorming black basketball teams, earned him a place in the Naismith Basketball Hall of Fame and an international reputation as the world’s greatest dribbler”. He was the first Globetrotter inducted into the Naismith Memorial Basketball Hall of Fame. I saw Haynes play in the later stages of his career with the Globetrotters; both on ABC’s Wide World of Sports and through their non-stop touring when they came to even my Podunk hometown. So here’s to you Marques and I am sure you have called ‘Next’ for that great pickup game in the sky several times now.

As they made clear with several FCPA enforcement actions from last fall, the SEC has placed a renewed interest in the accounting provisions of the FCPA, specifically the internal controls provisions. The BHP enforcement continued this trend, where there was no evidence that bribes were paid or offered in violation of the FCPA, tet the poor internal compliance controls at BHP led to a $25MM fine. Indeed Kara Brockmeyer, the Chief, FCPA Unit; Division of Enforcement of the SEC, who spoke at the recently concluded Compliance Week 2015, in a session entitled “A New Look at FCPA Enforcement”, reiterated that the SEC was committed to protecting investors in US public companies and those which list other securities in the US, through enforcement of the accounting provisions, including internal controls provisions of the FCPA. It would seem that the reason is straightforward; a company with rigorous internal compliance controls is better able to prevent, detect and remedy any FCPA violations that may occur.

So, in the midst of an economic downturn, what can you do around the FCPA’s requirements for internal controls and current SEC emphasis? I would suggest that you begin with an exercise where you map the internal controls your company has in place to the indicia of the Ten Hallmarks of an Effective Compliance Program, as set out in the FCPA Guidance. While most compliance practitioners are familiar with the Ten Hallmarks, you may not be as familiar with standards for internal controls. I would suggest that you begin with the COSO 2013 Framework as your starting point.

As a lawyer or compliance practitioner you may not be familiar with all the internal controls that you have in place. This exercise would give you a good opportunity to meet with the heads of Internal Audit, Finance and Accounting (F&A), Treasury or any other function in your company that deals with financial controls. Talk with them about the financial controls you may already have in place. An easy example is employee expense reports. Every company I have ever worked at or even heard about requires expenses for reimbursement to be presented, in documented form on some type of expense reimbursement form. This is mandatory for IRS reporting; so all entities perform this action. See how many controls are in place. Is the employee who submits the expense reimbursement required to sign it? Does his/her immediate supervisor review, approve and sign it? Does any party in the employee’s direct reporting chain review, approve and sign? Does anyone from accounts payable review and approve, both for accuracy and to make sure that all referenced expenses are properly receipted? Is there any other review in accounts payable? Is there any aggregate review of expense reports? Is there a monetary limit over which additional reviews and approvals occur?

Now if an employee has submitted expenses for activities that occurred outside the US are there are any foreign government officials involved? Were those employees identified on the expense reimbursement form? Was the business purpose of the meal, gift or other hospitality recorded? Can you aggregate the monies spent on any one foreign official or by a single employee in your expense reporting system? All of these are internal controls that can be mapped to the appropriate prong of the Ten Hallmarks or other indicia of your compliance program.

You can take this exercise through each of the five objectives under the COSO 2013 Framework and its attendant 17 Principles. From this mapping you can then perform a gap analysis to determine where you might need to implement internal compliance controls into your anti-corruption compliance program. This can lead to remedial steps that you can take. For example you can recommend procedures be written for all key compliance areas in which there are currently no procedures and your existing procedures can be updated to include compliance issues and clear definition how controls are to be evidenced. Through this you can move from having detect controls in place, to having prevent controls, whenever possible.

As a Chief Compliance Officer (CCO) or compliance practitioner, this is an exercise that you can engage in at no cost. You simply investigate and note what internal controls you have in place and how they may be a part of your anti-corruption efforts going forward. As I said last week, compliance is a straightforward exercise. This does not mean that it is easy; you do have to work at it so that you will simply not have a paper, “check the box”, program. But using the excuse that you have limited resources is simply an excuse and a rather poor one at that. While the clear lesson from the BHP enforcement action is that you are required to have effective internal controls in place, by engaging in this mapping exercise you can then figure out what you have and, more importantly, what internal compliance controls that you do not have and need to institute.

Finally, if you do have resources and need some help, you can reach me at the email below.

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

Compliance Week 2015 Wrap Up

Compliance Week 2015 has ended. This year was the tenth anniversary of the annual conference and in many ways I found it to be the best one yet. Matt Kelly and his team put together a conference and experience, which was absolutely first-rate. If you were not able to make this year’s event, I hope you will join us for Compliance Week 2016, which Matt announced the dates for at the conclusion of this year’s event. The dates for 2016 are May 23-26, back of course in Washington DC to be held yet again at the Mayflower Hotel. I wanted to give you some of my thoughts on the highlights of this year’s event and what made it so unique.

At my age, I am somewhat loathe to channel my teenage daughter but the first thing that I noticed was a very different vibe this year over past year’s conferences. From the Cocktail Party reception held on Sunday night, all the way through the conclusion of the event, there seemed to be an air that I have not quite been able to put my finger on. It was more than an acknowledgement and perhaps even an excitement about how far the compliance profession has come in the past ten years. While I have written about the Chief Compliance Officer (CCO) and compliance profession as CCO 2.0, I had the feeling that we may be moving on to CCO 3.0, as that was even the title of a session.

But this vibe was more tangible than simply a feeling. One key ingredient for me was the use of social media into the conference experience. While many events have a conference app, which can provide you information on such things as the agenda, speakers and their presentations, room locations and the like; the Compliance Week 2015 app was fully interactive, allowing you to live tweet, send IM to fellow conference attendees and receive text messages when a room changed or other conference alteration occurred. It also provided a virtual help desk for all attendees.

Many of sessions were led by CCOs from major corporations and they were able to provide a strategic vision of where they were going at their organizations. This was kicked off from the start of the conference, from the first panel on the first day where the CCOs from Boeing, GE and the Director of Compliance for Wal-Mart began the event. Obviously these are three of the largest companies in the US and do business on a worldwide basis. Yet, while sharing their strategic visions, each one was able to provide a solid example from their respective organization that a CCO or compliance practitioner from any sized company could implement. From Wal-Mart with a workforce of 2.2 million employees, it was keep the message simple. From Boeing, it was incorporate any compliance failures as teaching moments or lessons learned into your internal compliance training going forward. From GE, it was how to inculcate and incorporate compliance into your everyday business planning.

The conversations were excellent as usual. I led the FCPA conversation and there were several alumni present, who told me they look forward to attending each year. One of the reasons is that there is no avenue in their hometowns to get together in an environment to discuss issues of mutual concern. It is concept that Mike Snyder and I used in founding the Houston Compliance Roundtable. A place where you can ask any question and have it answered by another compliance professional in an environment where Chatham House rules apply. While I certainly started the discussion, it quickly became fully interactive with all participants sharing their views on a variety of topics. While we have some great compliance talent in Houston at our Roundtable, it cannot top the level of maturity and sophistication present at the Compliance Week annual conference. We all benefited from the experience.

This experience was doubled when I led a breakfast event on Tuesday. While an inducement to attend was a complimentary copy of my book Doing Compliance, there were 25 attendees who joined me for a very engaging and free-flowing conversation about the state of compliance, we practitioners and where enforcement may be heading. Compliance Week treated us all to breakfast and, once again, I probably learned as much as any one. But since Chatham House rules were in effect, I cannot report on any of the substantive things that were discussed. I will share with you that I am excited to lead such a breakfast again next year and I hope you will be one of the 25 to sign up.

As always there were a number of government representatives who spoke at Compliance Week again this year. For me, the parade was led by Department of Justice (DOJ) Assistant Attorney General Leslie Caldwell. While I will be writing further, and in more detail, about Caldwell’s remarks, she said a few things that I think bear emphasis. One was that compliance professionals need to work towards more data analytics in the form of transaction monitoring to assist in moving to a prevent and even predictive and prescriptive mode for your best practice compliance program. Next she emphasized that your compliance program must not be static but must evolve as your business risks evolve. Finally, and much closer to my heart, were her remarks that you need to “sensitize your business partners to compliance.” It was if she was channeling her inner Scott Killingsworth with his groundbreaking work on ‘Private-to-Private’ or P2P compliance solutions. Or, as I might say, she was advocating a business solution to the legal problem of bribery and corruption across the globe.

But Caldwell was not the only DOJ representative as we had Laurie Perkins, Assistant Chief, Foreign Corrupt Practices Act (FCPA) Unit and Kara Brockmeyer, Chief, FCPA Unit; Division of Enforcement from Securities and Exchange Commission (SEC), on a panel moderated by yours truly. First I would urge that if you are ever asked to moderate a panel with FCPA enforcers and regulators, jump at the chance. The reason is that you get to ask the questions you want answers to; even if you get past your prepared questions, when there is a lull in questions from the audience, you can follow up with something you want to know or in my case always wanted to know. So I asked some basic questions like: What is Criminal Information? (to Perkins) and Could you explain the process for the SEC’s Administrative Procedure? (to Brockmeyer). I was certainly enlightened by their answers to both questions.

The event sponsors were of course there to provide information on their solutions to assist any compliance practitioner. If you have never been to an event at the Mayflower Hotel in Washington, the conference rooms are along a wide hall that allows good people flow and adequate room for the sponsors and others to set up, meet attendees and discuss their products and services. I view the sponsors and vendors as a part of the compliance solution going forward and while they are clearly there to sell; they also engage in a fair amount of education. But the education runs both ways with many compliance practitioners communicating needs they have which can be incorporated into new product developments.

Unfortunately Compliance Week 2015 had to come to an end. But the feeling, information and new friends I met will last with me until Compliance Week 2016 next year. I hope you will plan to join me.

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

Senn Interview, Part III – Post Incident Remediation

I conclude my three-part series based upon my podcast interview of noted white-collar defense lawyer and Foreign Corrupt Practices Act (FCPA) practitioner Mara Senn, a partner at Arnold & Porter LLP. In Part I, I considered Senn’s thoughts on conducting internal investigations. In Part II, I looked at Senn’s decision-making calculus around the decision to self-disclose if you have determined that a potential FCPA violation existed. Today, I consider her thoughts on what steps a company should take if it comes to the decision not to self-report a potential FCPA violation. These include the remediation of potential or actual conduct that might arguably violate the FCPA and the actions you should take on an ongoing basis.

One of the things Senn made clear is that whether you decide to self-disclose or not, your company must fully remediate the issue which led to that. She suggested that a company should act as if they will draw government scrutiny. She said, “the best way to go about it is to assume, act as if, the government is breathing down their necks on this very issue and fully remediate. The nice thing is they can decide what that means, fully remediate.”

I inquired as to whether that meant a systemic look at the company’s operations on a global, worldwide basis, particularly in view of Assistant Attorney General Leslie Caldwell’s recent admonition not to ‘boil the ocean’ in the context of your FCPA internal investigation. Senn replied, “It used to be that in the government’s view, fully remediating meant go to 10 different countries, even if there’s no suspicion of any activity going on, just to make sure that everything’s okay. They’re now backing away from that, and in fact, they’re saying that the private sector is the one who started that whole trend, which is not quite consistent with history.”

Recognizing that there is always a risk that the government will come knocking, either via a whistleblower or other mechanism, Senn replied, “you want to be squeaky clean, so that when the government comes to you, if in the future, like a year down the line, you have another problem or the government has a whistleblower or whatever, that you can say, look, in our opinion, we did an analysis, and we thought it was not necessary to self-disclose. On the other hand, we were horrified and very upset by the fact that this potential infraction happened on our watch, and we’ve done the following 5 things, and we’ve remediated.”

She went on to explain, “What you want to do is show to the government, “We understand the problems that caused this, and we got to the root of it. Either it’s a bad apple, and we got rid of that bad apple, or it was really a failure of compliance structures, and we’ve fixed that part of the compliance structures. In fact, we’ve added more, just to double check and make sure that in this particular area or similar areas, depending on what it is, we will detect, prevent, and if we detect something, we will remediate.” They, the government, can feel comfortable that you did what they would have asked you to do anyways. That doesn’t always have to be onerous, sometimes it is depending on the scope of the issue, but that’s what I would say about that.”

Senn listed several actions that a company could engage in to demonstrate that it had taken solid remediation steps. Obviously, a company can “bulk up its compliance program.” But she added that it is important that a company demonstrate action taken against the nefarious party or parties. A company can discipline up to and including discharge. But do not forget lesser forms of discipline including docking pay or suspension without pay or other steps short of termination. I would add that you should consider the FCPA Guidance on this final point where it notes, “A compliance program should apply from the board room to the supply room—no one should be beyond its reach. DOJ and SEC will thus consider whether, when enforcing a compliance program, a company has appropriate and clear disciplinary procedures, whether those procedures are applied reliably and promptly, and whether they are commensurate with the violation.” [emphasis supplied]

Yet more than simply remediating an issue or even violation, Senn believes that a company should work to stay on top of its program thereafter. Certainly if you agree to a Deferred Prosecution Agreement (DPA) or Non-Prosecution Agreement (NPA), your company will either have an external monitor or reporting obligation to the Department of Justice (DOJ) going forward.

I asked her about ongoing monitoring of your compliance program; both the enhancements you might put in place to remedy generally and the specific issues that caused the problem initially. Senn agreed that is an important step going forward, she stated, “Absolutely, but I think that the monitoring requirement has now essentially expanded to the whole program. The government really expects you now to be having ongoing improvement and ongoing monitoring, so it’s not like you put in a policy 3 years ago and don’t do anything and then assume it’s okay. I think maybe you would put in a special extra audit or something like that on that particular situation, but really you should have in your compliance program an overall monitoring function that allows you to do that for all of your programs to various levels and various degrees. Yes, I think so, but it may not be as intensive as your typical external monitor, because you’re going to be integrating that into a program that’s really more holistic than just checking on that one thing. You’re going to be checking on a system-wide basis.”

Clearly this position was articulated in the FCPA Guidance as Hallmark Nine of an Effective Compliance Program. The Guidance states, “An organization should take the time to review and test its controls, and it should think critically about its potential weaknesses and risk areas.” The Guidance ended this Hallmark by stating, “Although the nature and the frequency of proactive evaluations may vary depending on the size and complexity of an organization, the idea behind such efforts is the same: continuous improvement and sustainability.”

To listen to the full Mara Senn interview, go to the FCPA Compliance and Ethics Report, by clicking here, or download it from iTunes.

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

King Arthur Week – The Quest for the Holy Grail and Compliance Defense – Part V

We conclude our Arthurian themed week with the Holy Grail, which has fired the imagination of artists for millennia. What was the Holy Grail? According to Professor Dorsey Armstrong in her Teaching Company lecture series, entitled “King Arthur: History and Legend”, the Holy Grail has taken various forms over the years. For Chrétien de Troyes, it was a fancy serving dish; for Wolfram von Eschenbach, it is a magical stone; for Robert de Boron, it is the cup that Christ drank from at the Last Supper; for the comedy troupe Monty Python, it is a cartoon sketch that no one ever finds; and for the modern day author Dan Brown, it is both a person, who is a descendant of Mary Magdalene, and a bloodline which leads to the Merovingian kings of France. In other words, it means many things to many people.

One of the articulated reasons for the creation of King Arthur’s Round Table was tied to the Holy Grail, since it was allegedly used at the Last Supper, it seems only natural that Arthur would seek it from his table as well. Indeed in Robert de Boron’s account of Arthur, the wizard Merlin tells Arthur the Round Table was established to identify the one Knight, who was pure of heart, who could find the Holy Grail. Only after the great quest for and locating of the Holy Grail was achieved could Arthur’s other ambitions come to pass.

Another interesting twist on the Grail legend is that it was in Britain. Curiously it was first ‘discovered’ by some enterprising Monks in Glastonbury, England in the late 12^th century. They just happened to come across a well that ‘bled’ water around the time of an annual pilgrimage. Going viral in the Middle Ages was tough but the Monks built upon their initial find by claiming that both King Arthur and his Queen Guinevere were also buried at their abbey. Do you believe any of the above? Are you on your own Grail Quest, however dreamy that quest might be?

I thought about the quest for the Holy Grail in the context of the renewed call for a compliance defense addition to the Foreign Corrupt Practices Act (FCPA), which would give companies a pass if they had sustained a FCPA violation. In a recent blog post, entitled “Wal-Mart’s Recent Disclosures”, the FCPA Professor renewed his clarion call for a compliance defense for FCPA violators, using Wal-Mart’s last three-year spend on compliance resources as a starting point. He wrote, “Wal-Mart disclosed spending approximately $220 million over the past three years in global compliance program and organizational enhancements.” He went on to note, “The key policy issue is this. Wal-Mart has engaged in FCPA compliance enhancements in reaction to its high-profile FCPA scrutiny. Perhaps if there was a compliance defense more companies would be incentivized to engage in compliance enhancements pro-actively. A compliance defense is thus not a “race to the bottom” it is a “race to the top” (see here for the prior post) and it is surprising how compliance defense detractors are unable or incapable of grasping this point.”

Leaving aside the issue of whether I am “unable or incapable” to grasp these issues I raised, I see this quest for (or ‘race’ as the FCPA Professor calls it) for a compliance defense for companies that violate the FCPA to be as quixotic as the quest for the Holy Grail. As there were two requirements for the Knight who was destined to find the Grail, we will begin pureness of heart. Recognizing that it might be difficult to find a corporation that is ‘pure of heart’, the appropriate analogy might be more than simply spending what may appear to be a large dollar amount on a compliance program. This is because it is not the amount of money you spend that informs the effectiveness of your compliance program. In three years Wal-Mart has reported it spent $220MM. The FCPA was enacted into existence in 1977. What do you get if you divide $220MM total spend into 38 years? My (recovering) trial lawyer math shows that to be approximately $5.78MM per year. How many billions of dollars per year was the annual revenue of Wal-Mart during that time? (Hint – a lot)

Moving our quest time frame to the modern era of FCPA enforcement, to say 2005. That would give an annual compliance spend of $20MM per year. If one looks at the company’s revenue from the middle of the last 10 years, for the fiscal year ending January 31, 2011, Wal-Mart reported net income of $15.4 billion on $422 billion in gross sales. Now what do you think about Wal-Mart’s quest for an effective compliance program based upon three year’s spending of $220 being significant? Indeed what is the percent of its revenues over the past three years that Wal-Mart spent creating its compliance program? Alas my trial lawyer math skills do not allow me to calculate a number so small.

How about the second part of the Grail quest that requires a ‘chaste’ Knight? Once again it is somewhat difficult to understand how a corporation could be chaste but I think the appropriate analogy is the doing of compliance. Put another way, it is not having a compliance program in place but having an effective compliance program. So not only does the amount of money a company spends become immaterial to our quest but also the same can be said to the claim that having a written program should entitle you some type of defense to any FCPA violations. Just as questing for the Holy Grail is seeking something that does not exist, affording companies a defense from their own FCPA violations by having a written program in place is not a temporal reality.

Under the FCPA Ten Hallmarks of an Effective Compliance Program, that it is an interplay of the right compliance message, tools in place to communicate and enforce the compliance message and then oversight to ensure compliance with the entire compliance regime. Such things as monitoring are recognized as a key element so your company should establish a regular monitoring system to spot issues and address them. Effective monitoring means applying a consistent set of protocols, checks and controls tailored to your company’s risks to detect and remediate compliance problems on an ongoing basis. To address this, your compliance team should be checking in routinely with the finance departments in your foreign offices to ask if they have noticed recent accounting irregularities. Regional directors should be required to keep tabs on potential improper activity in the countries they manage. Additionally, the global compliance committee should meet or communicate as often as every month to discuss issues as they arise. These ongoing efforts demonstrate your company is serious about compliance.

In addition to monitoring, structural controls are recognized as an important element. It has been said that large companies “must use structural means to maintain control.” One of the best explanations of the use of internal controls as a structural component of any best practices compliance program comes from Aaron Murphy, a partner at Foley and Lardner in San Francisco, in his book entitled “Foreign Corrupt Practices Act”, where he said, “Internal controls are policies, procedures, monitoring and training that are designed to ensure that company assets are used properly, with proper approval and that transactions are properly recorded in the books and records. While it is theoretically possible to have good controls but bad books and records (and vice versa), the two generally go hand in hand – where there are record-keeping violations, an internal controls failure is almost presumed because the records would have been accurate had the controls been adequate.” These two parts are but a sampling but it is in the doing of compliance that any anti-corruption compliance program becomes effective; it is not simply having one in place.

Finally, as with all quests, what will it bring you if you actually achieve it? As with the Holy Grail, it is a good story but that is about it. I find this view best articulated by Matthew Stephenson, in a blog post entitled “The Irrelevance of an FCPA Compliance Defense”, where he gave three reasons why a compliance defense is not warranted. First (and perhaps almost too obvious to state) is that if your company is invoking a compliance defense, there has been a FCPA violation. The second is “The U.S. Department of Justice (DOJ) already takes into account a corporation’s good-faith efforts to implement a meaningful compliance program when the DOJ decides whether to pursue an FCPA action against the corporation, and what penalties or other remedies to impose. Indeed, the adequacy of the corporation’s compliance program is a standard subject of negotiation between the DOJ and corporate defendants.” Third is that “An FCPA compliance defense would only alter the DOJ’s bargaining position if a corporation unhappy with the DOJ’s position could either (1) convince the DOJ lawyers that the DOJ’s position is unreasonable in light of the corporation’s compliance program, or (2) credibly threaten to go to court and defeat the DOJ’s enforcement action altogether by successfully invoking the compliance defense before a federal judge.” Stephenson discounts subpart 1 because DOJ lawyers already take a company’s compliance program into account. But his second subpart is even more important because no company will go to trial against the government using a compliance defense to a demonstrable FCPA violation. Leaving aside the Arthur Anderson effect, no company is going to risk losing at trial when they can control their own fate through settlement. The modern day Knights seeking the Holy Grail of a compliance defense will never find it because of this last fact. Moreover, just as there were no real Knights who could meet the requirements to actually find the Holy Grail after their quest, there are no companies which can meet the same criteria; that being that a compliance defense could or even should trump a FCPA violation.

So we leave our King Arthur themed week with our quest intact, bringing message I hope that you have ascertained in these five posts about some of the things you need to do around the ‘nuts and bolts’ of anti-corruption compliance. I also hope that you might be able to look at the tales surrounding the King Arthur myth for your own inspiration.

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

King Arthur Week – the Pentecostal Oath and Code of Conduct – Part II

One thing for which King Arthur is remembered are his chivalric knights. He helped create this legend, in large part, by establishing a Code of Conduct for the Knights of the Round Table. The King required each one of them to swear an oath, called the Pentecostal Oath, which was Arthur’s ideal for a chivalric knight. The Oath stated, “The king established all his knights, and gave them that were of lands not rich, he gave them lands, and charged them never to do outrageousity nor murder, and always to flee treason; also, by no mean to be cruel, but to give mercy unto him that asketh mercy, upon pain of forfeiture of their worship and lordship of King Arthur for evermore; and always to do ladies, damosels, and gentlewomen succor upon pain of death. Also, that no man take no battles in a wrongful quarrel for no law, ne for no world’s goods. Unto this were all the knights sworn of the Table Round, both old and young. And every year were they sworn at the high feast of Pentecost.” (Le Morte d’Arthur, pp 115-116)

Interestingly, the Oath first appeared in Sir Thomas Malory’s Le Morte d’Arthur and in none of the prior incarnations of the legend. In Malory’s telling, after the Knights swore the Oath, they were provided titles and lands by the King. The Oath specifies both positive and negative conduct; that is, what a Knight might do but also what conduct he should not engage in. The Pentecostal Oath formed the basis for the Knight’s conduct at Camelot and beyond. It was clearly a forerunner of today’s corporate Code of Conduct.

The foundational document of any Foreign Corrupt Practices Act (FCPA) compliance program is its Code of Conduct. This requirement has long been memorialized in the US Sentencing Guidelines, which contain seven basic compliance elements that can be tailored to fit the needs and financial realities of any given organization. From these seven compliance elements the Department of Justice (DOJ) has crafted its minimum best practices compliance program, which is now attached to every Deferred Prosecution Agreement (DPA) and Non-Prosecution Agreement (NPA). These requirements were incorporated into the 2012 FCPA Guidance. The US Sentencing Guidelines assume that every effective compliance and ethics program begins with a written standard of conduct; i.e. a Code of Conduct. What should be in this “written standard of conduct”.

Element 1

Standards of Conduct, Policies and Procedures (a Code of Conduct)

An organization should have an established set of compliance standards and procedures. These standards should not be a “paper only” document, but a living document that promotes organizational culture that encourages “ethical conduct” and a commitment to compliance with applicable regulations and laws.

In the FCPA Guidance, the DOJ and Securities and Exchange Commission (SEC) state, “A company’s code of conduct is often the foundation upon which an effective compliance program is built. As DOJ has repeatedly noted in its charging documents, the most effective codes are clear, concise, and accessible to all employees and to those conducting business on the company’s behalf.” Indeed, it would be difficult to effectively implement a compliance program if it was not available in the local language so that employees in foreign subsidiaries can access and understand it. When assessing a compliance program the DOJ and SEC will review whether the company chapter has taken steps to make certain that the code of conduct remains current and effective and whether a company has periodically reviewed and updated its code.

In each DPA and NPA over the past 36 months the DOJ has stated the following as item No. 1 for a minimum best practices compliance program.

1. Code of Conduct. A Company should develop and promulgate a clearly articulated and visible corporate policy against violations of the FCPA, including its anti-bribery, books and records, and internal controls provisions, and other applicable foreign law counterparts (collectively, the “anti-corruption laws”), which policy shall be memorialized in a written compliance code.

In an article in the Society for Corporate Compliance and Ethics (SCCE) Complete Compliance and Ethics Manual, 2nd Ed., entitled “Essential Elements of an Effective Ethics and Compliance Program”, authors Debbie Troklus, Greg Warner and Emma Wollschlager Schwartz, state that your company’s Code of Conduct “should demonstrate a complete ethical attitude and your organization’s “system-wide” emphasis on compliance and ethics with all applicable laws and regulations.” Your Code of Conduct must be aimed at all employees and all representatives of the organization, not just those most actively involved in known compliance and ethics issues. From the board of directors to volunteers, the authors believe that “everyone must receive, read, understand, and agree to abide by the standards of the Code of Conduct.” This would also include all “management, vendors, suppliers, and independent contractors, which are frequently overlooked groups.”

There are several purposes identified by the authors that should be communicated in your Code of Conduct. Of course the overriding goal is for all employees to follow what is required of them under the Code of Conduct. You can do this by communicating what is required of them, to provide a process for proper decision-making and then to require that all persons subject to the Code of Conduct put these standards into everyday business practice. Such actions are some of your best evidence that your company “upholds and supports proper compliance conduct.”

The substance of your Code of Conduct should be tailored to the company’s culture, and to its industry and corporate identity. It should provide a mechanism by which employees who are trying to do the right thing in the compliance and business ethics arena can do so. The Code of Conduct can be used as a basis for employee review and evaluation. It should certainly be invoked if there is a violation. To that end, I suggest that your company’s disciplinary procedures be stated in the Code of Conduct. These would include all forms of disciplines, up to and including dismissal, for serious violations of the Code of Conduct. Further, your company’s Code of Conduct should emphasize it will comply with all applicable laws and regulations, wherever it does business. The Code needs to be written in plain English and translated into other languages as necessary so that all applicable persons can understand it.

As I often say, the three most important things about your FCPA compliance program are ‘Document, Document and Document’. The same is true of communicating your company’s Code of Conduct. You need to do more than simply put it on your website and tell folks it is there, available and that they should read it. You need to document that all employees, or anyone else that your Code of Conduct is applicable to, has received, read, and understands the Code. For employees, it is important that a representative of the Compliance Department, or other qualified trainer, explains the standards set forth in your Code of Conduct and answers any questions that an employee may have. Your company’s employees need to attest in writing that they have received, read, and understood the Code of Conduct and this attestation must be retained and updated as appropriate.

The DOJ expects each company to begin its compliance program with a very public and very robust Code of Conduct. If your company does not have one, you need to implement one forthwith. If your company has not reviewed or assessed their Code of Conduct for five years, I would suggest that you do in short order as much has changed in the compliance world.

What is the value of having a Code of Conduct? I have heard many business folks ask that question over the years. In its early days, a Code of Conduct tended to be lawyer-written and lawyer-driven to “wave in a defense situation” by claiming that “see we have one”. But is such a legalistic code effective? Is a Code of Conduct more than simply, your company’s law? What is it that makes a Code of Conduct effective? What should be the goal in the creation of your company’s Code of Conduct?

Just as the Pentecostal Oath was required to be sworn out each year, you should have your employees recertify their adherence to your Code of Conduct. Moreover, just as King Arthur set his expectations for behavior your company should do so as well.

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

International Anti-Corruption Enforcement Efforts

While the US Foreign Corrupt Practices Act (FCPA) is still the most widely recognized and enforcement anti-bribery and anti-corruption law across the globe, there have been a number of initiatives which will lead directly to greater anti-bribery and anti-corruption enforcement. This increased enforcement will lead to increased risks for companies that do not have anti-bribery and anti-corruption compliance programs in place. This post discusses the efforts of other countries to enact and enforce legislation to curb bribery and corrupt across the globe.

China 

Over the past 18 months, GlaxoSmithKline PLC (GSK) was embroiled in a very public, very nasty bribery and corruption investigation. It culminated in the conviction of GSK and the assessment of a $491 million fine, criminal conviction of four senior GSK China subsidiary managers and the criminal convictions of two ancillary GSK-hired investigators. The entry of the Chinese government into the international fight against corruption and bribery is truly a game-changer. While there may be many reasons for this very public move by the Chinese government, it is clear that foreign companies are now on notice. Doing business the old fashioned way will no longer be tolerated. This means that international (read: western) companies operating in China have a fresh and important risk to consider; that being that they could well be subject to prosecution under domestic Chinese law.

The international component of this investigation may well increase anti-corruption enforcement across the globe. First of all, when other countries notorious for their endemic corruptions, for example India, see that they can attack their domestic corruption by blaming it on international businesses operating in their country, what lesson do you think they will draw? Most probably that all politics are local and when the localities can blame the outsiders for their own problems they will do so. But when that blame is coupled with violations of local law, whether that is anti-bribery or anti-price fixing, there is a potent opportunity for prosecutions.

One of the audit failures of GSK was around well known compliance risks in China, including (1) event abuse planning; (2) mixture of legitimate and illegitimate travel; (3) other collusion with travel agencies; and (4) parallel itineraries. So those risks are well known and have been documented. While the cost of monitoring is high and would involve the tedious work of verifying millions of receipts by calling hotels, airlines and office supply stores and scrutinizing countless transactions for signs of fraud; if your compliance risks are known for a certain profile, then you should devote the necessary resources to making sure you are in compliance in that area.

Brazil 

While GSK was a harbinger of international anti-corruption investigations and enforcement actions based on domestic anti-bribery laws; Brazil and its state-owned energy company Petrobras may become the world’s largest corruption investigation. In a New York Times (NYT) article, entitled “Scandal Over Brazilian Oil Company Adds Turmoil to the Presidential Race”, the scandal was detailed by a former Petrobras official, Paulo Roberto Costa. Mr. Costa was the person who oversaw the company’s refining operations. He has admitted to having engaged in the receipt of bribes for at least a 10 year period “equivalent to 3 percent of the value of the deals from the Brazilian construction companies that obtained the contracts” to build refineries. This amounted to literally millions being “stashed in bank accounts in Switzerland and the Cayman Islands.” He “inflated budgets for new projects” by 3% and then had that amount kicked back to him as bribes. The allegations were verified “through an associate, Alberto Youssef, a black-market money dealer who testified that he helped launder funds in the scheme. Mr. Youssef, who has also accepted a plea deal, testified that more than a dozen of Brazil’s largest construction companies had paid hefty bribes to obtain lucrative Petrobras contracts.” Interestingly, Brazilian President Rousseff “has also effectively acknowledged the prevalence of corruption inside the executive suites of Petrobras, while denying that she had known about the kickbacks when they were taking place.”

The scandal has not only engulfed suppliers to Petrobras in Brazil. It has now moved to the international stage. From shipyards in Singapore, which have been alleged to have paid bribes to Petrobras, to Rolls Royce in Great Britain which has been alleged to have paid bribes for the sale of turbine engines; this scandal truly is international in scope and may engulf more companies going forward. In addition to violations of Brazilian law, the US government has reportedly opened an investigation, as Petrobras USA is a US stock-exchange issuing entity and subject to the FCPA. Indeed, in the US there are already multiple shareholder derivative lawsuits against the US entity for mis-representing its true value because of the corruption allegations against the company in Brazil.

The Petrobras scandal continues to make news almost daily and its repercussions continue to reverberate across the globe. The FCPA Blog, in an article entitled “Swiss AG freezes $400 million in Petrobras bribe probe”, stated that in Switzerland alone there are nine open investigations into alleged money laundering tied to Petrobras. In mid-March the Office of the Attorney General of Switzerland (OAG) announced that they had issued an order to freeze $400 million of assets allegedly tied to a Petrobras corruption scheme. The FCPA Blog further stated the OAG announced “The release of over $120 million reflects Switzerland’s clear intention to take a stand against the misuse of its financial center for criminal purposes and to return funds of criminal origin to their rightful owners.”

The domestic Brazilian Anti-Bribery Law, the Clean Company Act, enacted into law in 2014, is uniquely designed for oversight by internal audit. Compliance programs will be evaluated on three prongs: the structure of the program; specifics about the legal entity; and an evaluation of the program’s efficiency. The first prong will include consideration of the existence of mechanisms for reporting suspected or actual misconduct, training, code of conduct, policies and procedures, periodic risk assessments, and application of disciplinary measures against employees (including senior management too) involved in wrongdoing. Under the second prong, the compliance risks associated will be considered. Compliance programs should be tailored to the company’s risks; “one-size-fits-all” programs will not be accepted. The third prong will consist of a case-by-case verification, that it is not simply a paper program.

Finally, and no doubt spurred by the Petrobras corruption scandal, the FCPA Blog also reported, in another article entitled “After protests, Brazil president issues anti-graft regulations”, that Brazilian President Dilma Roussef issued a presidential decree with regulations under the Clean Company Act. The new regulations issued address some of the crucial questions concerning the administrative procedure for imposing corporate liability and assessing fines. It also set out the criteria for determining fines, evaluating compliance programs, and entering into leniency agreements. Finally, the decree also provides that books and records accuracy and completeness will be a key criterion for evaluating compliance programs, no doubt inspired by the FCPA accounting provisions. As the FCPA Blog said, “The regulations under the Clean Company Act are a critical milestone in the effort to restore credibility to Brazil’s federal government, in light of its past commitments to fighting corruption in the corporate world.”

Conclusion 

What does all of the above mean for a global company? It means that some law that prohibits bribery and corruption will cover your business. It will not and does not matter if you are a US, UK or Brazilian company doing business outside of your home country, somewhere a law prohibiting bribery and corruption will cover your actions. Even if you are not covered by the FCPA, the UK Bribery Act or the Clean Company Act, if you are doing business in a local country you can still be subject to prosecution under its domestic anti-bribery laws. This means that there will be greater enforcement going forward and greater cooperation between enforcement agencies.

For businesses the only response to this plethora of new laws is to implement and enhance a best practices anti-bribery/anti-corruption compliance program and there are several examples that companies can follow to do so. In the US, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) provided their suggestions with their Ten Hallmarks of an Effective Compliance Program; the UK Ministry of Justice (MOJ) has provided commentary on the Six Principles of an Adequate Procedures compliance program and the Organization of Economic Cooperation and Development (OECD) has put forth its Good Practice Guidance on Internal Controls, Ethics, and Compliance.

All of these anti-bribery/anti-corruption regimes set forth easily digested concepts that a company could implement. However, there must be more than simply a paper program in place. A company must actually do compliance for it to be effective. By making compliance a part of normal business practices, it will be possible to prevent, detect and then remediate any bribery or corruption issues that may arise.

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

Who is Responsible for Complying with the FCPA?

The Department of Justice (DOJ) still faces criticism over its Foreign Corrupt Practices Act (FCPA) enforcement strategy. Some decry that it is too aggressive, that the DOJ has moved into waters Congress never intended the DOJ to navigate into regarding the FCPA. Others worry that the DOJ, through its use of settlement mechanisms such as Deferred Prosecution and Non-Prosecution Agreements (DPAs and NPAs), let corporations off to easily with fines and other monetary penalties being the equivalent of a slap on the wrist. Yet another school of thought says that it is up to the DOJ to tell companies how not to engage in bribery and corruption by specifying precisely what type of anti-corruption compliance program to put into effect.

One thing these commentariat all have in common is that they generally do not look to those responsible for obeying the law, i.e. companies and persons who are subject to the FCPA, for their responsibility of complying with the law. Such failure seems to me to be sadly misplaced. But it is not simply Mike Volkov’s FCPA Paparazzi who fail to assess a corporation’s role in their failure to comply with the law; unfortunately it is also company leaders themselves.

We recently were treated to another such display of ‘What Me Worry?’ mentality by HSBC Chief Executive Officer (CEO) Stuart Gulliver when he said, “Can I know what every one of 257,000 people is doing?” Leaving aside the issue of whether a corporate CEO who has signed one of the largest DPAs in the history of the world (for money-laundering, not FCPA violations); should admit he (1) he doesn’t care or (2) his company is too unwieldy for it to obey the laws that you and I follow everyday; Gulliver inadvertently hit upon one of the key concepts of a best practices compliance program. That concept is a well-rounded program that assures compliance, not some all knowing, all seeing narcissist at the top.

In a Financial Times (FT) article entitled “Too big to manage”, Andrew Hill blasted Gulliver’s statement as “disingenuous” but went on to state, “Knowing what every employee is doing is not the leader’s responsibility. But by using a combination of the right structure, the latest technology and, above all, by imbuing a company with the correct culture and reinforcing regular communication with visits to the shop floor, he or she should be able to limit the chance of a major scandal.” Hill quoted management thinker Henry Mintzberg for the following, ““You can’t excuse [scandals] by saying we have so many employees. You . . . have got to be on the ground to have a sense of what your organisation is all about.””

This means a CEO is not required to know everything but he does need to have an overall sense of whether his company is moving in a direction to do things such as follow the law. I would say this is even truer when you have promised (yet again) in a DPA that your company will follow the law. It also means that the leader sets the tone. If your leader takes the position that he or she cannot know what everyone is doing; that tone will be communicated down to the field troops but the message will be that said maximum leader does not care what the middle and lower levels are doing. Hence the DOJ would say that it all starts with Tone at the Top. Sadly Gulliver does not seem to acknowledge, let alone understand, that issue.

But more than simply having a leader that cares and is engaged; Gulliver’s statement belies other aspects of a best practices compliance program. Technology provides a mechanism for oversight of a compliance regime. Under the FCPA Ten Hallmarks of an Effective Compliance Program, monitor is recognized as a key element so your company should establish a regular monitoring system to spot issues and address them. Effective monitoring means applying a consistent set of protocols, checks and controls tailored to your company’s risks to detect and remediate compliance problems on an ongoing basis. To address this, your compliance team should be checking in routinely with the finance departments in your foreign offices to ask if they’ve noticed recent accounting irregularities. Regional directors should be required to keep tabs on potential improper activity in the countries they manage. Additionally, the global compliance committee should meet or communicate as often as every month to discuss issues as they arise. These ongoing efforts demonstrate your company is serious about compliance.

In addition to monitoring, structural controls are recognized as an important element. Hill said that large companies “must use structural means to maintain control.” One of the best explanations of the use of internal controls as a structural component of any best practices compliance program comes from Aaron Murphy, a partner at Foley and Lardner in San Francisco, in his book entitled “Foreign Corrupt Practices Act”, where he said, “Internal controls are policies, procedures, monitoring and training that are designed to ensure that company assets are used properly, with proper approval and that transactions are properly recorded in the books and records. While it is theoretically possible to have good controls but bad books and records (and vice versa), the two generally go hand in hand – where there are record-keeping violations, an internal controls failure is almost presumed because the records would have been accurate had the controls been adequate.”

I would advocate that it is the interplay of the right message, tools in place to communicate and enforce the message and then oversight to ensure compliance with the message that allows a 250,000 plus employee base company to have a chance to operate in compliance with their legal obligations. Echoing this maxim, Hill quoted Rick Goings, Chairman and CEO of Tupperware Brands Corporation, for the following, “Wars are won not by generals, but by non-commissioned officers. If you have the right kind of structure…and behind that a value system, I think you can do it.”

HSBC continues to be the poster child for compliance lessons learned, whether intentional or not. Hill concluded his piece with the following, “The lesson may be that, irrespective of the size of the company, executives who lose touch with how their staff are using the culture they preach are courting embarrassment and scandal. The trend towards large companies operating through smaller units, with more autonomy and accountability for their actions, does not absolve leaders from meeting their traditional responsibilities to know what is happening on the frontline. As Prof Fischer suggests, they should manage according to the old Russian proverb that Ronald Reagan adopted when dealing with the Soviet Union in the 1980s: trust, but verify.”

There is a plethora of compliance regimes that companies can look to in order to create a best practices compliance program. Simply put, it is a relatively straightforward exercise; perhaps not easy but certainly there are well-articulated compliance programs that companies can follow. To continue to criticize the DOJ (and Securities and Exchange Commission) for failing to communicate what they wish to see in a best practices compliance program, simply fails to take into account the responsibility that corporations have in complying with US laws. The information is out there in abundance. Even a weekend article in the FT lays it out for you.

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

Farewell to Mr. Spock and Risk Assessment Under COSO

Leonard Nimoy died last Friday. He will be forever associated with the role of Mr. Spock in the original Star Trek television show which premiered in 1966. The original series ran for only three years but had a full life in syndication up through this day. He also reprised the role in six movies featuring the crew of the original series and in the recent reboot.

Mr. Spock was about a personal character for me as I ever saw on television. For a boy going through the insanity of adolescence and the early teen years, I found Mr. Spock and his focus on logic as a way to think about things. He pursued this path while dealing with his half human side, which compelled emotions. This focus also led me to explore Mediations by Marcus Aurelius. But more than simply logic and being a tortured soul, Mr. Spock and his way looking at things and Star Trek with its reach for the stars ethos inspired me when it came out and still does to this day.

Mr. Spock and his pursuit of logic inform today’s blog post. Every compliance practitioner is aware of the need for a risk assessment in any best practices compliance program; whether that program is based on the US Foreign Corrupt Practices Act (FCPA), UK Bribery Act or some other compliance law or regime. While the category of risk assessment is listed as Number 3 in the Ten Hallmarks of an Effective Compliance Program in the FCPA Guidance, both the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) intone that your compliance journey begins with a risk assessment for two basic reasons. The first is that you must know the corruption risks your company faces and second, a risk assessment is your road map going forward to manage those risks.

Interestingly Risk Assessment is the second objective in the Committee of Sponsoring Organizations of the Treadway Commission (COSO) Cube. In its volume entitled “Internal Control – Integrated Framework”, herein ‘the Framework Volume’, it recognizes that “every entity faces a variety of risks from external and internal sources.” This objective is designed to provide a company with a “dynamic and iterative process for identifying and assessing risks.” For the compliance practitioner none of this will sound new or even insightful, however the COSO Framework requires a component of management input and oversight that was perhaps not as well understood. The Framework Volume says that “Management specifies objectives within the category relating to operations, reporting and compliance with such clarity to be able to identify and analyze risks to those objectives.” But management’s role continues throughout the process as it must consider both internal and external changes which can effect or change risk “that may render internal controls ineffective.” This final requirement is also important for any anti-corruption compliance internal control. Changes are coming quite quickly in the realm of anti-corruption laws and their enforcement. Management needs to be cognizant of these changes and changes that its business model may make in the delivery of goods or services which could increase risk of running afoul of these laws.

The objective of Risk Assessment consists of four principles. They are:

Principle 6 – “The organization specifies objectives with sufficient clarity to enable the identification and assessment of risks relating to the objectives.”

Principle 7 – “The organization identifies risks to the achievement of its objectives across the entity and analyzes risks as a basis for determining how the risks should be managed.”

Principle 8 – “The organization considers the potential for fraud in assessment risks to the achievement of objectives.”

Principle 9 – “The organization identifies and assesses changes that could significantly impact the system of internal control.”

Principle 6 – Suitable Objectives 

Your risk analysis should always relate to stated objectives. As noted in the Framework Volume, it is management who is responsible for setting the objectives. Rittenberg explained, “Too often, an organization starts with a list of risks instead of considering what objectives are threatened by the risk, and then what control activities or other actions it needs to take.” In other words your objectives should form the basis on which your risk assessments are approached.

Principle 7 – Identifies and Analyzes Risk 

Risk identification should be an ongoing process. While it should begin at senior management, Rittenberg believes that even though a risk assessment may originate at the top of an organization or even in an operating function, “the key is that an overall process exists to determine how risks are identified and managed across the entity.” You need to avoid siloed risks at all costs. The Framework Volume cautions that “Risk identification must be comprehensive.”

Principle 8 – Fraud Risk 

Every compliance practitioner should understand that fraud exists in every organization. Moreover, the monies that must be generated to pay bribes can come from what may be characterized as traditional fraud schemes, such as employee expense account fraud, fraudulent third party contracting and payments and even fraudulent over-charging and pocketing of the differences in sales price. This means that is should be considered as an important risk analysis. It is important that any company follow the flow of money and if the Fraud Triangle is present, management be placed around such risk.

Principle 9 – Identifies and Analyzes Significant Change

It really is true that if there is one constant in business, it is that there will always be change. The Framework Volume states, “every entity will require a process to identify and assess those internal and external factors that significantly affect its ability to achieve its objectives. Rittenberg intones that companies “should have a formal process to identify significant changes, both internal and external, and assess the risks and approaches to mitigate the risk” in a timely manner.

Today’s blog post is a tribute to Mr. Spock as he, Star Trek and its characters continue to teach us lessons which we can apply in business going forward. It is the process of compliance which informs your program going forward. A risk assessment is recognized by sources as diverse as the DOJ, SEC and COSO as a necessary step. Just as Mr. Spock, the Science Officer onboard the Enterprise, was required to assess the risk to the ship and crew from a scientific perspective, a risk assessment can give you the tools to not only assess the corruption compliance risk to your company but a road map to managing that risk. So farewell to my long time friend Mr. Spock, you gave to me more than I ever gave back to you. I can think of no more fitting tribute to Spock than to say Live Long and Prosper.

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

Doing Less with Less and the Unification of Germany

I am attending the SCCE Utilities and Energy Conference in Houston this week. As usual, the SCCE has put on a great event for the compliance practitioner. This year there is live blogging by Kortney Nordum so there should be much about the conference up on the SCCE blogsite, this week and into the future. Lizza Catalano has put together a first rate program for compliance practitioners of many stripes. As an added benefit, SCCE Chief Executive Officer (CEO) Roy Snell has brought some cold weather down to Houston for the event for our late February enjoyment. While it was 80 on Saturday, today is was a balmy 36 courtesy of our Minnesotan guests.

As you might guess the current economic downturn is on everyone’s mind and a subject of much conversation. Last week I wrote a post about the depression of oil and gas prices in the energy space and some of the increased Foreign Corrupt Practices Act (FCPA) or other anti-corruption risks that might well arise from this economic downturn. Over the next couple of days, I want to explore how a Chief Compliance Officer (CCO) or compliance practitioner might think through responses to this increased compliance risk. Today I will focus on doing less with less. Tomorrow I will suggest some technological solutions.

I have been around long enough to see more than one of these economic events in the energy space. While not suggesting that we Texans never learn not to repeat our mistakes, they do seem to have a pattern. Prices drop precipitously, companies who are overstocked, over-leverage or generally over-panic; over-react and cut head count and spending dramatically to some level that is not based on rational economic analysis. Then they get some handle on where the numbers might be heading and the cuts start to flatten out and some type of equilibrium is reached.

Right now, in the energy space, we are in the cutting phase. That means loss of personnel (head count) and loss of resources even if it was calculated last year based on a summer or fall 2014 economic projection in your annual budgeting process. This means one thing you will need get for a quarter or two will be financial resources to place the personnel your compliance function may have lost. This means that you will have to figure out a way to accomplish more with fewer resources. While I often advocate that the compliance function can and should draw on other disciplines such as Human Resources (HR), IT, Internal Audit and Marketing for support; those functions have most probably been ‘right-sized’ as well so they may not be able to assist the compliance function as much they could have previously.

Now would be a very good time to put into practice what Dresser-Rand CCO Jan Farley often says, “Don’t sweat the small (compliance) stuff.” Farley often speaks about the need not to waste your scarce compliance resources on areas or matters that are low compliance risks. But to do this, you need to understand what are your highest compliance risks. Since you will not have additional resources to perform such an analysis, I would suggest now would be a very good time for you to assess your compliance program and your business model to see what are your highest risks. If you believe there are several, you can fprioritize them. This exercise will give you the basis to deliver your ever-scarcer compliance resources to your highest risk areas.

While I do not believe the Department of Justice (DOJ) or Securities and Exchange Commission (SEC) will be sympathetic to some unsubstantiated claim along the lines of ‘I did my best with what I had’; they also made clear in the FCPA Guidance that “An effective compliance program promotes “an orga­nizational culture that encourages ethical conduct and a commitment to compliance with the law.” Such a program protects a company’s reputation, ensures investor value and confidence, reduces uncertainty in business transactions, and secures a company’s assets. A well-constructed, thought­fully implemented, and consistently enforced compliance and ethics program helps prevent, detect, remediate, and report misconduct, including FCPA violations.” (emphasis supplied)

So while the DOJ and SEC will not accept you bald-faced claims that our company simply did not have the money to spend on compliance, they will most-probably consider a compliance program where you have looked at your risks, in the context of this economic downturn, and delivered the compliance resources you do have to those risks. But the key is Document, Document, and Document your decision-making calculus and your implementation. (Stephen Martin would probably add here that if your annual spend on Yellow Post-It Notes is a factor of 10X your compliance spend, this approach would not be deemed credible.)

In her On work column in the Financial Times (FT), Lucy Kellaway wrote about this the concept of doing less with less for the corporate executive personally, in an article entitled, “No need to ‘lean in’ when laziness can be just as effective”. She cited to the Prussian General Helmuth von Moltke for “devising one of the world’s fist management matrices” when he assessed his officers on two scales: “clever v. dim and lazy v. energetic.” From this he came up with four permutations:

• Dim and lazy – Good at executing orders.
• Dim and energetic – Very dangerous, as they take the wrong decisions.
• Clever and energetic – Excellent staff officers.
• Clever and lazy – Top field commanders as they get results.

The point of Kellaway’s article has direct implications for the CCO or compliance practitioner currently facing an economic downturn, “It is only by being lazy that we become truly efficient, and come to see what is important and what is not.” Kellaway cautioned “the sort of laziness to encourage is not the slobbish variety that means you do bad work. That is not laziness: it is stupidity. Instead, we need the clever version that comes from knowing there is an opportunity cost to every minute we spend working, so we must use our time wisely.”

From the compliance perspective, this translates directly into using your compliance resources wisely. So whether you want to cite the Prussian general who unified Germany, columnist Kellaway, Dresser-Rand CCO Farley or this article’s theme of doing less with less, I would suggest to you there is a manner to maintain “A well-constructed, thought­fully implemented, and consistently enforced compliance and ethics program helps prevent, detect, remediate, and report misconduct, including FCPA violations” even in an economic downturn.

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

 

Assessing Internal Compliance Controls – Part II

In this blog post I continue my exploration of how you should assess your compliance internal controls using the Committee of Sponsoring Organization of the Treadway Organization (COSO), publication “Internal Controls – Integrated Framework, Illustrative Tools for Assessing Effectiveness of a System of Internal Controls” (herein ‘the Illustrative Guide’), as a starting point and basis for discussion. You will recall from my series on compliance internal controls under the COSO 2013 Framework there are five objectives: (1) Control Environment; (2) Risk Assessment; (3) Control Activities; (4) Information and Communication; and (5) Monitoring Activities. Today I will review issues around compliance internal control assessments on Control Environment and Risk Assessments.

First are some general definitions that you need to consider in your evaluation. A compliance internal control must be both present and functioning. A control is present if the “components and relevant principles exist in the design and implementation of the system of [compliance] internal control to achieve the specified objective.” A compliance internal control is functioning if the “components and relevant principles continue to exist in the conduct of the system of [compliance] internal controls to achieve specified objectives.”

I. Control Environment

Under the objective of Control Environment there are five principles which you will need to assess. The five principles are:

1. The organization demonstrates a commitment to integrity and ethical values. Here you can look to see if there is a training program to help make employees cognizant of the importance of doing business ethically and in compliance with the standard’s of your company’s Code of Conduct. Also is there specific training on the Foreign Corrupt Practices Act (FCPA), UK Bribery Act or other relevant anti-corruption/anti-bribery legislation which may govern your organization? Next does your company have in place any process to evaluate “individuals against published integrity and ethics policy”? Finally, do you have in place any process to “identify and address deviations in the organization”?
2. The board of directors demonstrates independence from management and exercises oversight of the development and performance of internal control. Under this Principle you must DOCUMENT the active involvement of your company’s Board of Directors. So not only must risk assessments be performed and evaluated by senior management, they must also be evaluated by the Board, separate and apart from senior management. A Board must also document its review of any remediation plans and monitoring activities.
3. Management establishes, with board oversight, structures, reporting lines and appropriate authorities and responsibility in pursuit of the objectives. This Principle deals primarily with reporting lines and structures so you will need to consider not only the structure of your business but also whether or not both clear and sufficient reporting lines have been established throughout the company. The next analysis is to move down the chain to see if there definitions and assignments for your compliance function. Lastly you need to assess whether there are sufficient parameters around the responsibilities of the compliance function and if there are limitations which should be addressed.
4. The organization demonstrates a commitment to attract, develop and retain competent individuals in alignment with the objectives. Under this Principle you will need to review the policies and procedures to make sure you have the minimum required under a best practices compliance program and then evaluate and address any shortcomings. This Principle also has a more personnel focus by requiring you to consider whether your organization attracts, develops and retains sufficient compliance personnel and is there an appropriate succession plan in place if someone ‘wins the lottery’ on the way to work.
5. The organization holds individuals accountable for their internal control responsibilities in the pursuit of the objective. Under this Principle review is required to determine whether the Board established and communicated the mechanisms to hold employees accountable for your compliance internal controls. As suggested in the FCPA Guidance, there should be both a carrot and stick approach, so for the carrot is there some type of Board, senior management or employee compensation based on whether they did their assignments in compliance with your Code of Conduct or are bonuses based strictly on a sales formulation? For the stick, have any employees ever been disciplined under your compliance regimes?

II. Risk Assessment

This objective has four Principles that require assessment. They are (numbers follow the COSO Framework):

6. The organization specifies objectives with sufficient clarity to enable the identification and assessment of risks relating to objectives which include Operations Objectives, External Financial Reporting Objectives, External Non-Financial Reporting Objectives, Internal Reporting Objectives and Compliance Objectives. Here I think the key is the documentation of several different topics and issues relating to your company and how it operations. This means you will need to assess such diverse concepts as what are your senior management’s choices for business and compliance? You will need to consider and assess tolerances for risk as demonstrated by such issues as operations and financial performance goals. Finally, it can be used as a basis for committing of compliance resources going forward.
7. The organization identifies risks to the achievement of its objectives across the entity and analyzes risks as a basis for determining how the risks should be managed. This Principle requires you to take a look at not only your compliance organization but also your business structure including entity, subsidiary, division, operating unit, and functional levels. You should assess the involvement of your compliance function at each point identified and the appropriate levels of management therein. Finally, from the compliance perspective, you should attempt to estimate not only the significance of compliance risks identified in the risk assessment but also determine how to respond to such identified compliance risks.
8. The organization considers the potential for fraud in assessing risks to the achievement of objectives. Bribery and corruption can be categorized as forms of fraud. Rather than being fraud against the company to obtain personal benefits it can be fraud in the form of bribery and corruption of foreign government officials. For the compliance internal control assessment around this Principle I would urge you to ‘follow the money’ in your organization and consider the mechanisms by which employees can generate the funds sufficient to pay bribes. Many of these are simply fraud schemes so you should consider this within the compliance context and assess incentive and pressures on employees to make their numbers or be fired. You should also assess your employees’ attitudes and rationalizations regarding same.
9. The organization identifies and assesses changes that could significantly impact the system of internal control. This Principle speaks to the need of your organization to maintain personnel competent to use the risk assessment going forward. But it also requires you to assesses changes in the external environment, assess changes in the business model or other significant business changes and, finally, to consider any changes in compliance leadership and how that would impact this Principle.

I often say that good compliance is simply good business. These COSO objectives are not only important from the compliance perspective but they also speak to the issue of overall process in your organization. The more you can burn these activities into the DNA of your company, the better run your organization will be going forward. Auditing against the COSO standards will provide your management with greater information on the health of your organization and satisfy your legal requirements under the FCPA.

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