ISO 37001 – Not Quite A “Complete Yawner”
A goal of FCPA Professor has always been to foster a forum for critical analysis and discussion of the Foreign Corrupt Practices Act and related topics.
Consistent with this goal, today’s post is from Christopher Bell (Greenberg Traurig) responding in part to my October 2016 post titled “ISO 37001 Is A Complete Yawner.”
Bell was a member of the U.S. team involved in the negotiation and drafting of ISO 37001, has been involved in the negotiation and implementation of various ISO standards since the mid-1990s, and has decades of experience advising companies around the world on the evaluation and implementation of compliance systems.
DOJ Highlights 11 Factors Relevant In Evaluating A Corporate Compliance Program
Last week the DOJ released this document highlighting 11 factors relevant in evaluating a corporate compliance program.
The factors should be familiar to compliance professionals well-versed on best-practices policies and procedures (whether in the FCPA context or otherwise) and there is really nothing new about the document (indeed the document cites to sources long in the public domain). Yet the document, the origins and purpose of which are not known, was released by a “new” DOJ with new leadership and is thus worthy of highlighting.
Organizing the existing body of best practices in one document is all fine and dandy. The more important question however 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).
Assistant Attorney General Leslie Caldwell On Transparency, The DOJ’s FCPA Pilot Program, And Corporate Compliance
Yesterday, Assistant Attorney General Leslie Caldwell participated in an event at George Washington University Law School focused on the Foreign Corrupt Practices Act. The DOJ released these prepared remarks that will be familiar to most FCPA practitioners in that the speech did not break any new ground.
Ms. Caldwell spoke at great length about transparency (similar to this April 2015 speech she delivered on the topic) and added how the DOJ’s FCPA Pilot Program (announced in April 2016) was an effort in increase transparency.
This is an interesting statement given that the majority of the DOJ’s so-called declination letters under the Pilot Program merely reference “potential” FCPA violations and offer no substance whatsoever regarding the “potential” violations.
Issues To Consider From The Embraer Enforcement Action
This previous post went in-depth into the Foreign Corrupt Practices Act enforcement action against Embraer.
This post continues the analysis by highlighting additional issues to consider from the enforcement action.
Timeline
In previous SEC filings Embraer stated: “In September, 2010, we received a subpoena from the Securities and Exchange Commission, or SEC, and associated inquiries from the U.S. Department of Justice, or DOJ, concerning possible non-compliance with the U.S. Foreign Corrupt Practice Act, or FCPA, in relation to certain aircraft sales outside of Brazil.”
Thus from start to finish Embraer’s FCPA scrutiny lasted over six years.
ISO 37001 Is A Complete Yawner
Last week the International Organization for Standardization (ISO) released ISO 37001 anti-bribery management systems – requirements with guidance for use. (See here for ISO’s release and here for a summary document. To obtain the actual document you have to pay for it which I regret that I did).
One’s view of ISO 37001 likely depends on one’s background, experience and motivation.
If you are familiar with the numerous sources of best practices in the anti-bribery space, then ISO 37001 is a complete yawner, indeed a disappointment as several best practices are not even captured in the purported best practices document.
If you are not familiar with the numerous sources of best practices in the anti-bribery space, and/or you are seeking to market your compliance practice, then ISO 37001 is probably a big deal.