What is accountability in your compliance program? How does it relate to responsibility for a company to prevent, detect and remediate any issues that might arise under a Foreign Corrupt Practices (FCPA) compliance program? What if a company is so big that it cannot provide meaningful oversight of its FCPA compliance program? Robert Jenkins explored these issues, in the context of the ongoing HSBC scandal in the UK, in a recent Financial Times (FT) article entitled “How the HSBC chairman can restore accountability at his bank”. Jenkins chastised the current bank Chairman, Douglas Flint, who claimed that he was not “responsible and therefore accountable” for the bank’s ongoing woes because of the bank’s unwieldy corporate structure.
In a public statement Flint said, “We deeply regret and apologise for the conduct and compliance failures highlighted which were in contravention to our own policies as well as our expectations of us.” Jenkins commended the sentiment but correctly pointed out “management and chairmanship involves more than setting out policies. It involves ensuring that they are carried out and that the culture is conductive to doing so.” Simply put, “the notion of being responsible but not accountable does not wash.”
If I have one colleague who is both responsible and accountable it is the FCPA Professor. As clearly denominated by his moniker, the FCPA Professor, he teaches law with a specialization in the arena of the FCPA. While he teaches classes at a law school, through his blog postings and other writings he also puts on classes around the FCPA for the rest of us through his FCPA Institute, which I am pleased to report is coming to Houston this May. The event will be held over two days, May 4 and 5, and is hosted by the law firm of King and Spalding LLP.
The Professor’s stated goal in leading this first Institute is “to develop and enhance fundamental skills relevant to the FCPA and FCPA compliance in a stimulating and professional environment with a focus on learning. Information at the FCPA Institute is presented in an integrated and cohesive way by an expert instructor with FCPA practice and teaching experience.” Some of the topics, which will be covered, include the following:
- An informed understanding of why the FCPA became a law and what it seeks to accomplish;
- A comprehensive understanding of the FCPA’s anti-bribery and books and records and internal controls provisions and related enforcement theories;
- Various realties of the global marketplace which often give rise to FCPA scrutiny;
- The typical origins of FCPA enforcement actions including the prominence of corporate voluntary disclosures;
- The “three buckets” of FCPA financial exposure and how settlement amounts in an actual FCPA enforcement action are typically not the most expensive aspect of FCPA scrutiny and enforcement;
- Facts and figures relevant to corporate and individual FCPA enforcement actions including how corporate settlement amounts are calculated;
- How FCPA scrutiny and enforcement can result in related foreign law enforcement investigations as well as other negative business effects from market capitalization issues, to merger and acquisition activity, to FCPA related civil suits; and
- Practical and provocative reasons for the general increase in FCPA enforcement.
In other words, it is what you have come to expect from the FCPA Professor; well-thought out reasoned analysis, practical knowledge and learning, and provocative thinking and assessment. But this is also your chance to attend a two-day Institute with one of the most original thinkers in the FCPA space. The FCPA Institute will provide insights into the topics more near and dear to my heart as a ‘nuts and bolts guy’. In addition to the above substantive knowledge, FCPA Institute participants will gain in-demand, practical skills to best manage and minimize FCPA risk by:
- Practicing FCPA issue-spotting through video exercises;
- Conducting an FCPA risk assessment;
- Learning FCPA compliance best practices, including as to third parties;
- Learning how to effectively communicate FCPA compliance expectations; and
- Grading an FCPA code of conduct.
To facilitate learning some of these practical skills, the FCPA Professor has offered me a guest slot to provide a hypothetical for discussion on Day 2 of the Institute.
At the end of the FCPA Institute, participants can elect to have their knowledge assessed and can earn a certificate of completion upon passing a written assessment tool. In this way, successful completion of the FCPA Institute represents a value-added credential for professional development.
In addition, attorneys who complete the FCPA Institute may be eligible to receive those all-important Continuing Legal Education (“CLE”) credits. The sponsors, King & Spalding, will be seeking CLE credit in CA, GA, NY, TX and if needed in NC and VA. Actual CLE credit will be determined at the end of the program based on actual program time. Attorneys may be eligible to receive CLE credit through reciprocity or attorney self-submission in other states as well.
I hope that you can join the FCPA Professor for this FCPA Institute. I have previously said, “if the FCPA Professor writes about it you need to read it. While you may disagree with him, your FCPA perspective and experience will be enriched by the exercise.” I would now add to this statement that if the FCPA Professor puts on his FCPA Institute you should attend. Not only will you garner a better understanding of the theoretical underpinnings of the law and the plain words of its text; you will also be able to articulate many of the issues which befall companies caught up in a FCPA investigation to your senior management in a way that will help them understand the need for a robust compliance program.
After attending the sessions I am also certain that you will be to explain to a Board, Chief Executive Officer (CEO) or senior management member the need for both accountability and responsibility in your FCPA compliance program. The FCPA Professor holds himself accountable for the opinions he takes and the positions he stakes out. By attending his FCPA Institute, I am certain you will be able to take those concepts to your senior management and prevent bunkum from coming out of your company if it has to remedy any FPCA compliance issues going forward.
To register for the FCPA Institute, or for more information, click here.
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© Thomas R. Fox, 2015