Starship EnterpriseSeptember 8th is the 50th anniversary of the premier episode of the most iconic science fiction related television show during my lifetime – Star Trek. As most of you know, I am a self-confessed uber-trekkie and I can still remember watching the first episode, The Man Trap. So here’s to you, all the crew members of the Starship Enterprise, you have had a great run and I can only hope it keeps going on yet another five-year mission “Where no man has gone before.” Star Trek is still with us today, in all its various forms, formats and media because the stories resonated from the 23rd century back until the early 21st century. Today, I want to look at how Star Trek informs your best practices anti-bribery/anti-corruption compliance program.

The Original Series, now termed Star Trek – The Original Series (TOS), largely worked because of the interplay of the show’s three main characters, Captain Kirk, Mr. Spock and Dr. McCoy as representations of the Greek terms ethos, pathos and logos. Captain Kirk was the stand-in for ethos which is a means of convincing someone of the character or credibility of the persuader, the man of action. Mr. Spock represented logos, which is viewed as reason. Finally, Dr. McCoy represents the emotional response of the heart with pathos. In an article in the Financial Times (FT), entitled “An idealistic Enterprise”, it noted that this trichotomy “turned virtually every show, via its three principals, into a philosophical inquiry into the limits of rationality, the dangers of hyper-emotionalism and the importance of moderating between the two.”

Yet another reason the original series worked was that it was not based on gadgetry or technical wiz-bangs. Certainly it portrayed technological advancement, most notably in the form of space travel itself and the transporter but the show was largely based on human drama. Yet the continued appeal of Star Trek and its many iterations is around “its slightly barmy idealism that made it such a joy to watch.”

All of this dovetails into compliance as well. The three basic tenets of a best practices compliance program are to prevent, detect and remedy. While each is a separate category they interact and overlap to help create an effective compliance program. Each of the three philosophical inquires heralded by the original series should also be present in a compliance program and compliance practitioner. That is why the compliance function is different than the legal function and should be branched off separately from compliance. The legal function is asked “Can we do it?” and the compliance function adds the query “Should we do it?”

The US Department of Justice (DOJ), UK Serious Fraud Office (SFO) and other anti-corruption enforcement agencies make clear that a company should have all three prongs of a best practices compliance program in place. The lack of or failure of any single prong can lead directly to a very large fine or penalty. Companies and compliance practitioners should be well-noted to recall the original Star Trek when designing or implementing a compliance program.

Another Star Trek analogy to compliance is the claim that employees who engage in bribery and corruption have ‘gone rogue’; companies are attempting to divest themselves of responsibility for actions from which they benefit, particularly if the bribery and corruption generated business sales and revenue. Put another way, you typically do not see businesses turning down profits when their employees engage in such behavior, unless the government requires them to do so. If you accept the profits of ill-gotten gain, you have to be ready to accept the consequences.

So which is my favorite episode? I probably join the vast majority of Trekkies by favoring “City on the Edge of Forever” where Kirk and Spock have to go back in time to rescue McCoy who has somehow changed history so that the Enterprise, United Federation of Planets and the crew of the ship had disappeared through McCoy’s actions. It was great science fiction and a great story forcing Kirk to choose between the woman he had fallen in love with in 1930s earth and returning history to the correct timeline. Kirk chooses the latter or, as correctly intoned by Mr. Spock, “Edith Keeler must die.”

For the compliance practitioner, I think the lesson from this particular episode is that you must gather sufficient facts, then act in a manner consist with your values. While the specific results were very unfortunate for Kirk in that episode, it did right the wrong that his heart’s desire, Edith Keeler, had impacted on the universe with her actions.

As for my favorite character, it was Mr. Spock. His manner of looking at things and Star Trek with its reach for the stars ethos inspired me when it came out and still does to this day. Every compliance practitioner is aware of the need for a risk assessment in any best practices compliance program; whether that program is based on the US Foreign Corrupt Practices Act (FCPA), UK Bribery Act or some other compliance law or regime. While the category of risk assessment is listed as Number 3 in the Ten Hallmarks of an Effective Compliance Program in the FCPA Guidance, both the DOJ and Securities and Exchange Commission (SEC) intone that your compliance journey begins with a risk assessment for two basic reasons. The first is that you must know the corruption risks your company faces and second, a risk assessment is your road map going forward to manage those risks.

When I say Star Trek influenced me and still does to this day as my favorite television program, I really mean it. Moreover, the show will continue to live on, not only in our consciousness but also on television later this fall in yet another iteration from the franchise. Yet, for me, the original series will always be the most significant. We have lost Mr. Spock, Dr. McCoy and Scottie from the original bridge crew of the Enterprise, however they will be with us in heart and in spirit forever.

To relive the opening of the Star Trek from 1966 on YouTube, click 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, 2016

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