Ed. Note-today we are please to host a guest post by noted FCPA compliance expert, Michael Volkov, partner at Mayer Brown LLP.
It seems pretty obvious to me and hopefully everyone in the compliance arena – every business should be implementing or reviewing their compliance programs to make sure they are doing everything they can. Day after day we read headlines about the latest enforcement action – FCPA, insider trading, accounting fraud, antitrust violations, False Claims Act, FDA enforcement actions. Private litigants are lining up at the courthouses to file new derivative suits and/or class actions alleging company or board misconduct.
For corporate leaders, the landscape is clear and it is obvious what needs to be done. More and more companies are acting responsibly. But some are not – the question is why? Board members know the risks and know that something has to be done. But they are failing when it comes to holding senior management accountable and directing greater compliance efforts. In some cases, senior management may fear a critical review because they may be seen as deficient for failing to ensure compliance. That is a short-sighted view and one that strong management should ignore.
Everyone repeats the mantra of “tone-from-the-top” but I like to describe it differently – dynamic leadership, which means the ability to communicate corporate priorities and needs, and to ensure change in the compliance arena. Sure, the Board needs to adopt a strong statement of compliance, but there is much more that is needed after that. Elevating compliance in an organization means elevating a corporate compliance office, providing it resources, and making sure that it has direct communications authority to the Board and an Audit Committee. Almost one-fifth of all corporate boards now have separate Compliance Committees. That is a welcome development and one that should be embraced in this new enforcement environment.
These are all valuable first steps in overhauling a corporate compliance program. The tone-from-the-top should be transformed into the dynamic and strong action-oriented leadership. Building on this important foundation will make everyone’s job easier. It will ensure coordination and cooperation among the critical players: General Counsel, Internal Auditor, Compliance, and Human Resources. Without this fundamental touchstone, a corporation’s compliance program is doomed to fail.
Michael Volkov is a partner at the law firm of Mayer Brown. He can be reached via email at MVolkov@mayerbrown.com and via phone at (202) 263-3288.