At the Opening Session of Compliance Week 2016, Stephen L. Cohen, Associate Director of Enforcement, Securities and Exchange Commission (SEC) and Andrew Weissmann, Chief of the Department of Justice (DOJ) Criminal Division’s Fraud Section, spoke about their views of what constitutes an effective compliance program under the Foreign Corrupt Practices Act (FCPA). Compliance Week’s Editor-in-Chief Bill Coffin moderated the panel. The majority of the discussion was around the Chief Compliance Officer (CCO) position; specifically the independence of the position, the authority the CCO has in an organization and the resources made available to the CCO.
Weissmann related that many presentations are made to the DOJ in the context of Filip Factors presentations, where a company generally presents evidence of the effectiveness of its compliance program at the time of the incident that led to the criminal investigation. He said that one of the things he thinks is important is how a CCO talks about the company’s compliance program.
He began by noting the initial straw poll showed that 65% of those responding to the first poll said their compliance program could probably pass DOJ muster or needs work. Weissmann viewed this as a positive sign because it demonstrated to him the ongoing evolution a company’s compliance program. He said he would often specifically delve into how a risk assessment had been done and then use that information as a springboard to inquire into whether it actually predicted the FCPA violation(s). It was not surprising to hear Weissmann basically say McNulty Maxim No. 3 (what did you do when you found out about it?) when he said that he would inquire into the company’s response and whether the response was then integrated that into the compliance function.
Cohen also said that he encourages CCOs to come and meet with him early in the SEC investigatory process. He did acknowledge that outside counsel usually hated the idea, obviously because they lose complete control, which they seek to maintain. Yet Cohen thinks that it helps him because it gives him a window into whom he is dealing with in the process. Additionally, as the CCO is generally more attuned to remediating problems, rather than simply protecting the company like outside counsel, a different view can often be obtained through such meetings. I would note from the CCO perspective, this is very valuable as it gives you the ability to begin to win an ally for your remediation program early on in the process.
One of the specific areas that Cohen wants to know about is what are the resources that have been made available to the CCO and what is the level of CCO independence? He is concerned about whether the CCO is appropriately valued and supported in the organization. He specifically asks if the CCO is on the Executive Leadership Team (ELT) or other top group of C-Suite executives. He would also inquire into whether the CCO had visibility into the transaction(s) that may have become the problem issue(s). Not necessarily whether there was a bribe authorized but if the transaction warranted someone violating the FCPA to get the deal done, did the compliance function have visibility into the matter? It is all Cohen’s way of trying to ascertain whether the CCO and compliance function have standing in company to get things done.
Weissmann was asked about individual liability for CCOs under the FCPA. I found this question propitious given my blog posts earlier this week. He said that the DOJ not going after CCOs for criminal liability unless they are a part of bribery scheme or some cover-up. He reiterated that the DOJ is trying to reduce the risk of criminality for violations under the FCPA and indeed that was one of their goals in hiring its new Compliance Counsel, Hui Chen. Chen enables the DOJ to be more robust in evaluating compliance programs of companies that come before the DOJ. He also noted that this new position works to heighten the power of CCO within companies as it gives them a specific advocate at the DOJ during enforcement actions.
Cohen took another approach to responding to the inquiry about CCO liability. He said that he believed there had been approximately 8000 SEC enforcement actions over past 10 years in regulated space involving CCOs. Of all of those cases, only five had involved individual liability actions brought against CCOs. These were along the lines of the FINRA action against Linda Busby I detailed yesterday, where the CCO had a clear regulatory responsibility to implement or enhance a compliance program and failed to do so. Cohen also made the point again that these five SEC enforcement actions were all in regulated industries only, not FCPA cases.
On the question of CCO independence, Weissmann believes this is one indicia of an effective compliance program. He reiterated yet again the DOJ’s stated position that it does not concern itself with whether the CCO reports to the General Counsel (GC) or reports independently, but he is more concerned about whether the CCO has the voice to go to the Chief Executive Officer (CEO) or Board of Directors directly, without going through the GC first. Even if the answer were yes, Weissmann would want to know if the CCO has ever exercised that right.
Finally, Weissmann turned to the operationalization of compliance. Echoing the remarks of the DOJ Compliance Counsel last fall, he wants to know if the if business unit of a company is responsible for at least a part of compliance. Put in the manner of Chen, is compliance operationalized within your organization? Weissmann had an interesting angle on the real problem for a CCO if compliance is not embedded into the business; that problem is that the CCO simply becomes a policeman, telling the business unit what it cannot do. Or as I would say, being Dr. No from the Land of No.
Cohen had several questions he would ask to determine the level of CCO independence within an organization. First and foremost, is the CCO a part of the senior management or the C-Suite? Is the CCO part of regular meetings of this group? He also wanted to know who could terminate the CCO so he might inquire to see if it was the CEO, the Audit Committee of the Board or did the CCO termination require approval of the entire Board? Most importantly, could a person under investigation or even scrutiny by the CCO fire the CCO? If the answer is yes, the CCO clearly does not have requisite independence.
In addition to the foregoing, Cohen had some additional questions he would consider. The first was who could over-rule the decision by a CCO within an organization? He would also inquire into who is making the decisions around salary and compensation for the CCO? Is it the CEO, the GC, the Audit Committee of the Board or some other person or group?
The remarks of Weissmann and Cohen demonstrated the continued evolution in the thinking of the DOJ and SEC around the CCO position and the compliance function. Their articulated inquiries can only strengthen the CCO position specifically and the compliance profession more generally. The more the DOJ and SEC talk about the independence of, coupled with resources being made available and authority concomitant with the CCO position, the more corporations will see it is directly in their interest to provide the position in their organizations.
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© Thomas R. Fox, 2016