doomsday-defenseDave Edwards died last week. For that passing to have registered for you, you most probably had to be (1) an uber Dallas Cowboys fan; (2) have grown up in Texas anywhere except Houston in the 60s or most probably (3) both. Dave Edwards was a strongside linebacker on the great Cowboy teams from 1963-1975. He played on one Super Bowl championship team (1972), two Super Bowl runner-ups (1971/1975) and the two Cowboy teams which lost in the pre-merger National Football League (NFL) championship games in 1966 and 1967 to Vince Lombardi’s Green Bay Packers.

Edwards was a founding member and a key component of the Cowboys’ Doomsday Defense which led the team to defensive dominance during the late 1960s and early 1970. Edwards was much less well-known than Doomsday’s middle linebacker Lee Roy Jordan and weakside linebacker Chuck Howley. Cowboys defensive coach Ernie Stautner once said of Edwards, “The best thing you can say about Edwards is that he’s a pro”. “He plays while he’s hurt and he still does an outstanding job. That’s what a pro is”. But more than simply a ‘pro’s pro’, Edwards took on the opposition team’s tight end in both run blocking and pass defense. In other words, he did the spade work in the old 4-3 defensive formations made so popular in the 1960s and 1970s, largely by Cowboy’s defensive genius, Head Coach Tom Landry.

The thing that Coach Landry emphasized in his version of the 4-3 defense was execution. Executing the role that you were assigned in his defensive scheme. Not freelancing but staying in your role and fulfilling the tasks assigned to you. Sometimes staying in your assigned spot and role is as difficult as following a play. But it was execution of the scheme which helped make the Doomsday Defense so successful for so long. The success of the original Doomsday Defense continued into the late 70s with Doomsday Defense II which took the Cowboys to two more Super Bowls in 1977 and 1978.

Baker Hughes Inc. Chief Compliance Officer (CCO), Jay Martin, often says that execution is where the rubber meets the road in compliance. I thought about all of that in the context of some of the pronouncements the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have said about what a compliance department should be doing. For instance, in the Enhanced Compliance Obligations of the Pfizer Deferred Prosecution Agreement (DPA), it said that Pfizer’s compliance department should, in part, “maintain “significant” resources for the compliance function. It shall have (b) An anti-corruption program department providing centralized assistance and guidance regarding the implementation, updating and revising of the FCPA Procedure, the establishment of systems to enhance compliance with the FCPA Procedure, and the administration of corporate-level training and annual anti-corruption certifications”. Further, in the FCPA Guidance, under Hallmark Five of an Effective Compliance Program, it says, “In addition to the existence and scope of a company’s training program, a company should develop appropriate measures, depending on the size and sophistication of the particular company, to provide guidance and advice on complying with the company’s ethics and compliance program, including when such advice is needed urgently. Such measures will help ensure that the compliance program is understood and followed appropriately at all levels of the company.”

I often write about the nuts and bolts of an effective compliance program but one of the most basic things that an effective compliance program must have is a compliance department present to ask the basic questions of compliance to and receive an answer from. I think to the DOJ and SEC this means a couple of things. First, and foremost, there must be the requisite number of resources dedicated to the compliance function. This means that a compliance department must be staffed with an appropriate number of compliance professionals to do the day-to-day basic work of compliance. Head count is always important in any corporation but there must be some minimum number of people in the compliance department to answer the phone or respond to email.

But, equally important to this resource issue is what the Pfizer DPA calls “providing centralized assistance” and what the FCPA Guidance says is “to provide guidance and advice on complying with a company’s ethics and compliance program”. In other words, it is up the corporation to have someone there to answer the phone but once they are in that compliance department seat, they have to actually pick up the phone and respond. It is the responsibility of a compliance practitioner to provide the guidance to company personnel who call in or email with questions. Following compliance policies and procedures is always important but to have a live person to answer questions or walk a non-compliance person through the process is a must.

In other words, if someone calls, not only does a compliance person have to be there, someone has to pick up the phone. How many times has a compliance department been called on a Friday afternoon to find that no one is there to answer the phone? But if someone is there, they have to actually pick up the phone and provide an answer. Mike Volkov has often inveigled against the compliance function being “The Land of No”; but the situation I am discussing is where a compliance department does not or will not provide the basic answers to a person working out in the field.

Sometimes the most basic and the most obvious is overlooked. The 4-3 defense used in the 60s has given way to much more sophisticated defense schemes and offenses evolved to defeat it, as that is the nature of athletic competition. Yet this basic formation still exists 50 years later. The same concepts are a part of a best practices compliance program; someone must be around the pick-up and answer the phone when it rings late on a Friday afternoon and provide some answers to the question(s) posed.

 

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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