A Compliance Professional Speaks
[This post was originally published on FCPA Professor on November 12, 2014 by an anonymous compliance professional]
When you’re the Chief Compliance Officer (“CCO”) of a company that ends up in the middle of one of “those” all-encompassing FCPA investigations (as if there’s any other kind), people often want to know . . . what is it like? How does it feel to be at ground zero of pure FCPA adrenaline? This is my answer, based on my repeated experiences. I wish I could say it just happened once. This is also based on my discussions with other CCOs.
It’s a rollercoaster with few ups and a lot of downs.
If The Government Can Do That, Why Can’t It Do This?
A foreign official in Country A. A state-owned enterprise in Country B. A third-party agent in Country C.
Foreign Corrupt Practices Act enforcement actions are full of vague references to problematic actors. However, other business organizations, including those doing business in the same country or same industry, are generally left clueless as to the identity of the problematic actors.
Perhaps FCPA compliance and risk mitigation could be enhanced if the government specifically identified problematic actors so that other business organizations could react accordingly.
Friday Roundup
Whistleblower award, interesting observations, scrutiny update, why in the world, you lose some and you win some, and guilty plea. It’s all here in the Friday roundup.
Whistleblower Award
According to this report, “a former Brazilian surgeon who blew the whistle on a medical device company that allegedly bribed doctors to win business will get a $4.5 million award from U.S. regulators, according to his lawyers. The surgeon will get the money for playing a crucial role in helping the SEC uncover a bribery scandal at Biomet Inc. that spanned the globe. (See here for the SEC release).
Things That Caught My Eye In The DOJ’s Evaluation Of Corporate Compliance Programs Guidance Document
This prior post went in-depth into the DOJ’s recently released “Evaluation of Corporate Compliance Programs” (ECCP) guidance document. This post continues the analysis by highlighting additional issues in the ECCP that caught my eye
For starters, there is nothing “wrong” with the ECCP per se. In fact, it is a nicely written and organized document. Substantively however, the ECCP uses the word “effective” 49 times, but there is no legal requirement that business organizations have “effective” compliance programs.
If a business organization wants to exceed the statutory standards set forth in the FCPA’s internal controls provisions (“controls sufficient to provide reasonable assurances” that certain objective are met) that is great! However, the legal and policy concern with the ECCP is that in an official U.S. government document the DOJ says it is going to base decisions about prosecutions and form of resolutions, monetary penalties, and compliance obligations in corporate criminal resolutions on specific factors, most of which, are not even found in any law passed by Congress.
DOJ Releases “The Evaluation Of Corporate Compliance Programs” Guidance Document
Earlier this week, the DOJ Criminal Division released this guidance document titled “The Evaluation of Corporate Compliance Programs” (ECCP).
The latest version of the guidance document which “sets forth topics that the Criminal Division has frequently found relevant in evaluating a corporate compliance” is likely to generate a substantial amount of coverage. However, there is little new substantive information in the document compared to the DOJ’s February 2017 release of its Evaluation of Corporate Compliance Programs (see here for the prior post) and in fact there was little new information in the February 2017 document as it cited to sources long in the public domain). Indeed, the ECCP contains a spot-on footnote which states that many of the topics discussed appear in other resources long in the public domain.
While the ECCP is not Foreign Corrupt Practices Act specific, it is FCPA relevant. Nevertheless, the policy issue raised with the ECCP (as well as other forms of DOJ guidance) is what should happen if a business organization acts consistent with the factors, but an employee nevertheless exposes the entity to legal liability. Consistent with the FCPA-like laws of many peer countries, this should be relevant as a matter of law and not merely in the opaque, inconsistent, and unpredictable world of DOJ decision making. (See here).