What are metrics for a Board around compliance? Former Assistant Attorney General Leslie Caldwell laid out some that the Justice Department would consider in a review of compliance programs. These metrics are:
- Does the institution ensure that its directors and senior managers provide strong, explicit and visible support for its corporate compliance policies?
- Does a Board maintain a material role in overseeing a company’s overall compliance framework?
These requirements move beyond simply having the correct ‘Tone at the Top’ which every Board should articulate. They charge the Board in a company with a substantive role in the actual doing of compliance going forward. One of my concerns is this metric sets up Board members and senior management for prosecution under the Foreign Corrupt Practices Act (FCPA) in the new era of the Yates Memo where companies are required to investigate and turn over individuals to the DOJ for prosecution if they want to receive any credit for cooperation. Of course, the Yates Memo also articulated the DOJ’s stated intention to more aggressively prosecute individuals as well.
You begin with two questions. First, does the Board of Directors exercise independent review of a company’s compliance program? Second, is the Board of Directors provided information sufficient to enable the exercise of independent judgment?
Boards of Directors should take a more active role in overseeing the management of risk within a company. Now this includes having a FCPA compliance program in place and actively oversee that function. This means if a company’s business plan includes a high-risk proposition, there should be additional oversight. In other words, there is an affirmative duty to ask the tough questions. But it is more than simply having a compliance program in place. The Board must exercise appropriate oversight of the compliance program and indeed the compliance function. The Board needs to ask the hard questions and be fully informed of the company’s overall compliance strategy going forward. Some of the areas for hard questions include
- Corporate Compliance Policy and Code of Conduct – Is there an overall governance document which will inform the company, its employees, stakeholders and third parties of the conduct the company expects from an employee, translated into appropriate local langauges. Is there documents of delivery and training on this or these documents?
- Risk Assessment – Has the Board assessed the compliance risks associated with its business?
- Implementing Procedures – The Board should determine if the company has a written set of procedures in place that instructs employees on the details of how to comply with the company’s compliance policy. Once again, have these implementing procedures been translated as appropriate and do employees understand these procedures? Are all of the above documented?
- Training – Has the Board been trained to understand its role in an effective compliance program?
- Monitor Compliance – Has the Board independently tested, assessed and audited to determine if its compliance policies and procedures are a living and breathing program and not just a paper tiger.
There are several paths a Board of Directors can take to fulfill this duty. Obviously the full Board can be apprised of compliance issues and handle them appropriately. However this may be unwieldy or not workable if there is a large Board and the compliance function only has limited time to present a quarterly and annual report. The Audit Committee is usually considered a natural venue for the compliance function to report to as it handles issues somewhat related to compliance already.
Through the convergence of the Yates Memo and these metrics, it is time for companies to create a Compliance Committee separate and a part from the Audit Committee. This Board-level Compliance Committee would be charged with oversight of FCPA compliance and ethics but could also be the reporting venue for anti-money laundering compliance (AML), export control compliance and all other such disciplines within an organization. Further after the Volkswagen emissions-testing scandal, not only have a robust compliance program but direct and transparent Board oversight may be the only thing stopping injury to your reputation from a competitor’s illegal or unethical conduct.
Three Key Takeaways
- The Justice Department expects active engagement by a Board around compliance.
- Does the Board exercise independent review of the compliance program?
- The convergence of the Yates Memo, Hui Chen and the FCPA Pilot Program.