I am writing this column between one of the sessions at the American Bar Association (ABA) White Collar Crime (WCC) Conference in blustery New Orleans.
In this politically charged climate there has been a lot of discussion about building certain structures on our Southern border. Whether or not our country has a “crisis” is a point that has been and continues to be hotly debated. While walls are meant from keeping someone or something out — bridges are built to connect people.
Over the past decade a majority of Foreign Corrupt Practices Act (FCPA) matters have been resolved by either a Deferred Prosecution Agreement (DPA) or a Non Prosecution Agreement (NPA). Over the past two years, the current administration has seen the Department of Justice (DOJ) come up with FCPA standards designed to bring more transparency and certainty for the business community. If we go back three years ago to 2016, in succession we saw the following policies rolled out by the DOJ:
- 2016 FCPA Pilot Program
- 2017 Evaluation of Corporate Compliance Programs
- 2017 FCPA Corporate Enforcement Policy
- 2018 anti-piling on and Safe Harbor in mergers and acquisitions (M&A)
This has also changed the position of monitoring and when it is chosen as the proper remedy to help a company find its moral compass. To some, this may sound like an aspirational goal, but I can tell you from working as a monitor, there is nothing like hearing feedback from your monitoring client that sounds something like, “Even though we did not want a monitor and only hired you because our regulator made us do it, we are completely sold on what you do and the value of monitoring.”
When a monitor hears this, it’s pure gold and makes everything worthwhile!
Let me jump back to the idea of DOJ transparency and certainty. If a company finds a violation and self-reports to the DOJ or SEC, there is an expectation of a declination without a monitor. As this expectation is the new norm, one of the key factors now is that the regulators presume that the company’s ethics and compliance program, as it exists, is robust enough to have red-flagged this suspicious behavior.
If this is the new norm, what is there for a monitor to do?
Besides looking for career retraining, we in the monitoring field have found opportunities for companies to perform proactive independent assessments. Now I know I may have thrown out a lot of jargon and government agencies to you, but I humbly ask you to join me on a journey where we will not only discus not all things anti-corruption, ethics, compliance and social responsibilities, but also will use the response, perspective and perception of how the events may look to a monitor.
I invite you to ask questions and join me on the bridge, as we build the connective tissue between the different silos of you company and your compliance program. If you remember one thing from this column, let it be “bridges are good,” “walls are bad.”
This applies not only for your company, but in other arenas as well.
Well, it’s back into the conference room for me. Hope the coffee’s hot, the chocolate cookies are gooey and the AC is on full blast.
Until next time,