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Just Following Instructions #precisionmatters

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As DOJ compliance counsel, Hui Chen called out the “the lack of precision and intellectual rigor” in much compliance writing and commentary and was applauded on these pages for doing so.

Therefore, Chen encouraged others on social media to use #precisionmatters to “hold each other accountable and tag where more precisions are needed!”

Just following instructions here – #precisionmatters for Chen’s latest article for use of such terms as “centralized visibility,” “organizational culture,” “respect,” “engagement” etc.

When Chen called out the “lack of precision and intellectual rigor” in much compliance writing and commentary she also mentioned “heaped clichés upon strung-together generalizations and speculations” and specifically mentioned the general lack of cites to support certain statements.

Well, there are no cites (or embedded links) whatsoever in Chen’s above-linked article to support several of her key conclusions such as: “companies that treat every compliance issue as a legal maneuver, write policies like mortgage documents, and cloak everything with attorney-client privilege tend to be less interested in whether their programs actual work and more interested in how it looks as a legal defense;” or “effective compliance programs, on the other hand, are more focused on behavior than on laws and regulations.”

In the article, Chen references (as she frequently does in articles) the DOJ’s Evaluation of Corporate Compliance Program policy document (see here for the prior post) in the abstract and appears to use it as a “strawman” without mentioning that she was the primary author of the document.

In the article, Chen criticizes companies for looking to the U.S. Sentencing Guidelines for compliance guidance by stating “people seem to forget that Sentencing Guidelines are written for convicted felons.”

Well, maybe just maybe companies look to the U.S. Sentencing Guidelines, among other sources for compliance guidance, because the DOJ has encouraged business organizations to do just that. Indeed the Sentencing Guidelines are prominently featured in the 2012 FCPA Guidance issued by the DOJ/SEC.

Indeed, among other references to the Sentencing Guidelines, the FCPA Guidance states under the heading “Corporate Compliance Program,” that the “DOJ also considers the U.S. Sentencing Guidelines’ elements of an effective compliance program, as set forth in § 8B2.1 of the Guidelines.”

In the article, Chen also criticizes companies for counting training completion rates and states:

“If you are still counting training completion rates and pro-compliance messages of CEOs to measure your compliance, you are demonstrating only the mere existence of a program. Training completion rate provides no indication of whether people learned anything from the training or changed their behavior as a result of training: it is not a valid metric to indicate effectiveness.”

Well, maybe just maybe companies count training completion rates because the government has specifically referenced low training completion rates in actual FCPA enforcement actions. For instance, in the Bristol Myers enforcement action (see here for the prior post), among the internal controls dings for the company was the following:

“[The] BMS sales force in China received limited training and much of it was inaccessible to a large number of sales representatives who worked in remote locations. For example, when BMS rolled out mandatory anti-bribery training in late 2009, 67% of employees in China failed to complete the training by the due date.”

In the article, Chen also criticizes companies for having a “Disproportionate Focus on Gifts-Meals-Travel-Entertainment.”

Well, maybe just maybe companies do that because numerous FCPA enforcement have included allegations or findings concerning “golf in the morning and beer drinking in the evening,” sport tickets, flowers, cigarettes and karaoke barswine and other such things of value.

When are DOJ or SEC officials (current or former) going to realize that business organizations are reacting to the compliance landscape they are creating?

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