A Christmas CarolAlthough there seems to be a difference in the precise publication date between the online reference sites This Day in History and Wikipedia, today we celebrate the Charles Dickens’ work A Christmas Carol, which both sites acknowledge was published in 1843. This story has become well known and omnipresent in the Christmas season; in film, theater, radio, television, cartoon, opera and about every other form of media known to mankind. A Christmas Carol tells the story of a bitter old miser, Ebenezer Scrooge and his transformation into a gentler, kindlier man after visitations by the ghost of his former business partner Jacob Marley and the Ghosts of Christmases Past, Present and Yet to Come.

The book was written at a time when the English were examining and exploring Christmas traditions from the past as well as new customs such as Christmas cards and Christmas trees. Dickens’ source materials for the tale appear to be many and varied, but are principally, the humiliating experiences of his childhood, his sympathy for the poor and various Christmas stories and fairy tales. A Christmas Carol has been credited as one of the greatest influences in rejuvenating the old Christmas traditions of England. Scrooge himself is the embodiment of winter, and, just as winter is followed by spring and the renewal of life, so too Scrooge’s cold, pinched heart is restored to the innocent goodwill he had known in his childhood and youth. It is hardy tale that should be retold and remembered each holiday season as one of the true spirits for celebration.

I considered this work by Dickens when I read a recently released article entitled “Improving Corporate Settlement Agreements by The Fraud Guy, John Hanson. In this piece Hanson considers some shortcomings in a variety of corporate misconduct settlement agreements, where he believes “the Terms of most Agreements lack a full and practical appreciation for what constitutes an effective Program within a particular organization.” He articulates that “A key reason for this is because the parties to the Agreement miss the forest for the trees in that they too narrowly focus on Program sub-components (that piece of a Program associated with a particular risk, such as Anti-Corruption, Anti-Trust, False Claims, Organizational Conflicts of Interest, etc.…), the failure of which is only symptomatic of a higher level and overall Program failure.” Although Hanson’s critique of Deferred Prosecution Agreements (DPAs), corporate monitors and settlement agreements was broader than simply those issues in Foreign Corrupt Practices Act (FCPA) enforcement, I found his comments provided some useful insights into how both companies and the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) might help to make the process more robust in helping companies create a culture of compliance and ethics as result of a resolved enforcement action.

Ethical Tone

Here Hanson says that DPAs do not tie the relationship of compliance and ethics together going forward. He believes that one cannot exist without the other. He thinks many compliance program overseers focus too much on the sub-parts and institute too much of “A piecemeal approach that overly focuses on Program sub-components and neglects ethical tone almost completely is doomed to failure. It is like placing a Band-Aid on an arterial wound.”

While many external monitors will drill down into the detailed specifics of a certain issue or even sub-issue under compliance, such a mechanism can be a useful exercise. For example if there is a particular compliance problem being faced such a detailed approach may be warranted. For instance, if the company got into FCPA trouble for its use of third parties that came into a business relationship with the company through the Supply Chain, an extreme deep dive into the Supply Chain and management of those relationships from the compliance perspective may be important. However what such an approach may cost is losing a greater focus of the overall picture.

Time

A second critique is that many DPAs are simply too short in time length to “effectively implement remediation.” While this criticism is largely for DPAs outside the FCPA context, it bears some discussion. Hanson believes that “A Program is a process, not a one-time event. Moreover, it is a process that perpetuates and improves continuously. Generally speaking, for organizations without a robust and effective Program, it realistically takes at least three years to stand up this process to the point where it is effective and begins annually repeating.” A compliance program design and implementation can take up to 18-months and it can often take another year to assess the implementation results and fine tune the compliance regime going forward.

While most DPAs in the FCPA context are for three years, there have been examples of where either a company was released early from a DPA or a monitorship ended at the 18-month mark rather than the full three years. An example of this is Pride International (now ENSCO) who were rewarded by being released early for its superior enhanced compliance efforts. In the latter category is Weatherford, among others, whose external monitorship can end at 18-months after the execution of the DPA, if sufficient progress is met.

External Monitors

Hanson had some very interesting thoughts about the use of corporate monitors. He has long championed more professionalism for monitors, specifically regarding their training in implementing compliance programs, not simply as very good white-collar defense lawyers or internal investigators. However, in his paper Hanson notes that other concerns have lessened both the effectiveness of external monitors or even their use; when he writes, “Due to past negative publicity arising from problems resulting from poor/immature government agency Monitor selection policies and/or inexperienced and/or ineffective Monitors, government agencies and organizations alike have developed some misperceptions that have led to Monitors being underutilized, even avoided. While some government agencies are still developing or improving Monitor selection policies, many have already adopted policies that addressed past concerns.”

Hanson champions his concerns for monitors with the experience issue. He believes that “many Monitors come from the ranks of whitecollar defense attorneys, who, as noted above, frequently lack the requisite level of compliance and ethics training and knowledge, as well as practical Program experience, to serve in that role most effectively. Additionally, most persons selected to be a Monitor have never been a Monitor before and are unaware of the nuances associated with such a specialized role.” To rectify this issue, Hanson advocates greater monitor training from organizations such as the Society of Corporate Compliance and Ethics (SCCE) or others. Finally, as Hanson notes, “it is of much greater importance to engage a Monitor who is an expert in compliance and ethics rather than one who is an expert on the substantive underlying criminal and/or regulatory violations.”

As usual when John Hanson writes something relating to the compliance field, you should definitely read it. Hanson’s unique background as a forensic auditor, FBI agent and four-time corporate monitor provide valuable insights to any compliance related issue. His current article is no different. You can use many of his insights directly in your compliance program through engaging an outside expert, called monitor or something else, to help move your compliance and ethics program forward on a number of fronts.

Hanson’s article is available through JDSupra by clicking here.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

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