Assistant AG Polite Talks Compliance And Related Topics
Recently DOJ Criminal Division Assistant Attorney General Kenneth Polite delivered this speech.
He focused on the following topics: how the DOJ evaluates “corporate compliance programs to ensure that companies are designing and implementing effective compliance systems and controls, creating a culture of compliance, and promoting ethical values,” corporate monitors, DOJ compliance related resources, and the consequences for a company violating a DOJ resolution agreement.
Polite also announced that he has asked his “team to consider requiring both the Chief Executive Officer and the Chief Compliance Officer to certify at the end of the term of the agreement that the company’s compliance program is reasonably designed and implemented to detect and prevent violations of the law (based on the nature of the legal violation that gave rise to the resolution, as relevant), and is functioning effectively.”
During his speech, Polite used the words or concepts “detect and prevent” several times. Keep in mind however, that there is no relevant legal standard that requires corporate compliance programs to “detect and prevent” violations of law. For this reason among others, Polite’s policy suggestion is off-target.
The Rams Season Of Failures
Last night, the Los Angeles Ram won the Super Bowl to cap off a successful season. By one measure, the Rams were the most successful team in NFL this year.
But what if the Rams were a business organization subject to the Foreign Corrupt Practices Act?
It is undisputed that the Rams failed many times this year.
For starters, the Rams were 12-5 in the regular season – meaning the Rams lost approximately 30% of its regular season games.
Gobbledygook – The Anti-Bribery Report Of Novartis
Novartis belongs to the long and growing list of repeat FCPA offenders.
As highlighted here, in 2020 the company resolved a $347 million FCPA enforcement action concerning conduct in Greece, Vietnam, and South Korea and as highlighted here in 2016 the company resolved a $25 million FCPA enforcement action concerning conduct in China.
Against this backdrop, it was interesting to review the company’s “Anti-Bribery Report” recently released by the company.
Maybe Business Executives Have ‘Unrealistic Expectations’ About Compliance Because Information Sources Like The FCPA Blog Spread False Information
Survey Says
Recently, Ethics and Compliance Initiative (ECI) released this survey titled “Corporate Compliance Programs and U.S. Department of Justice Enforcement Policies.”
As stated by ECI, the survey “was designed to obtain ethics & compliance leaders’ opinions about the DOJ’s enforcement guidelines and their intersection with corporate compliance programs.”
According to ECI, the “survey was conducted online, accessible through: unique invitation links sent to qualifying individuals; and an anonymous link posted on ECI’s and partner organizations’ platforms and websites.” Data collection took place May through June 2021 and participates included: 248 chief ethics & compliance officers (CECOs), chief compliance officers (CCOs) and chief ethics officers (CEOs) or their equivalents.”
A few data points that caught my eye.
This recent FCPA Blog post asks: “Do your C-suite and boardroom have ‘unrealistic expectations’ about compliance?”
The post asserts that “what’s required are [anti-bribery] compliance programs that can help prevent FCPA violations, and if violations happen, can help detect, remediate, and report them.”
This is false.
One will not find the words “prevent” “detect” “remediate” or “report” in the FCPA.