In November of 2014, I published a paper entitled “Improving Corporate Settlement Agreements” on JDSupra. A few media people and industry experts picked it up and made comments on it – all the ones that I read were positive (thanks guys!).
In that paper, one of the issues that I raised was the lack of compliance and ethics program expertise among government agencies in the field of compliance and ethics programs. For example, while DOJ prosecutors are exceptionally knowledgeable, trained, and experienced in white collar crime matters, I know of very few who can say the same about corporate compliance and ethics programs. Yet it is exactly the robustness and effectiveness of an organization’s compliance and ethics program that dictates if or how the organization will emerge – prosecution, suspension/debarment, settlement, etc….
I would love to say that some DOJ people read that paper and took it to heart, but that’s probably doubtful. Nonetheless, I was thrilled when I saw the announcement that the DOJ FCPA Unit was bringing on a compliance and ethics expert to do exactly what I was saying needs to be done in that regard (I had other criticisms in my paper as well that I would love to see addressed).
It has been reported that in July 2015, the Chief of the Fraud Section at DOJ confirmed that this position/role was being filled. Here’s a link to an article on it. The article stated: “This new compliance counsel position constitutes a significant change for DOJ, which in the past has relied on its cadre of white collar criminal prosecutors to evaluate compliance programs. The compliance counsel will help DOJ answer the recurring issue of whether an FCPA violation occurred because the company lacked an effective anti-corruption compliance program or because a rogue employee circumvented an otherwise strong program. Should DOJ decide to prosecute the company, the compliance counsel’s evaluation of the company’s compliance program will inform the final resolution with the company, including whether the company will be required to retain an independent compliance monitor.”
Kudos to the DOJ FCPA Unit for recognizing this need and doing something about it. I and many others in the field will be anxiously awaiting to see it in action. I also hope we will see this in other DOJ units (e.g. Anti-Trust) – this isn’t just an FCPA issue!
Also, I have seen some non-DOJ units picking up on this need. For example, key decision makers in the Department of Interior’s Office of Inspector General and Suspension & Debarment Offices have become Certified Compliance and Ethics Professionals through the Society of Corporate Compliance and Ethics. I have heard that the same is happening in at least one other Agency’s OIG and S&D offices.
There’s a long road ahead, but it seems people are at least seeing that a road exists.