Alert
Alert
11.15.11
In light of the dramatic expansion of anti-corruption enforcement activities in the United States in the past decade, as well as the recent emergence of an even more aggressive regime in the United Kingdom, companies must establish and maintain credible anti-corruption programs to protect against the risks inherent in doing business in today's global economy. Just as companies purchase insurance to protect against foreseeable risks, so too must companies protect themselves from an array of anti-corruption risks. While implementing an effective anti-corruption compliance program is the first step towards protecting the company, it is critical for companies to recognize that not having an effective compliance program exponentially increases the company's criminal and civil risk—including the risk of Directors' and Officers' individual liability.
An effective compliance program must be tailored to the commercial activities of the company, the industry in which it competes, its customers, and the geographic regions where the company does business. Certain hallmarks of an effective anti-corruption compliance program are universal:
1. Commitment of Senior Management. The tone at the top matters. For a compliance program to succeed, senior management must be stakeholders in its success. Indeed, the guidelines followed by federal prosecutors emphasize that the integrity and commitment of senior management are vital to the effectiveness of a company's internal controls—and to regulators' views regarding the company's overall compliance posture.
2. The Tone in the Middle. For the majority of companies, the tone at the top is clearly established, but equally important and often overlooked is the tone in the middle. And it is at this level of corporate management that significant anti-corruption risks arise. The company's compliance program must fully integrate middle management and make them internally accountable for designated compliance implementation and monitoring.
3. Comprehensive Compliance Program. Effective compliance requires the effort of employees throughout the organization, from management through to sales, marketing, accounting and finance. An integrated program should include the following:
4. Relationship with Experienced Anti-Corruption and Enforcement Counsel. The company should develop its comprehensive anti-corruption program with knowledgeable outside counsel, experienced in both compliance and enforcement. In the event that the company discovers potential misconduct, it is critical that the company engage seasoned anti-corruption counsel as soon as possible. In our experience, companies often compound a potential problem by initially responding without the benefit of outside counsel. Myriad issues can quickly develop. For example, company counsel may not have the requisite resources to conduct a credible inquiry. Moreover, internal company reports, such as those prepared by internal auditors, may be discoverable. Interviews conducted by in-house legal counsel may not be considered sufficiently independent by regulators down the road, and are potentially discoverable in many jurisdictions, including most European nations. Outside counsel is better equipped to handle these issues and provide a level of credibility, protection and insight that maximizes the company's protections and defenses, while preserving the company's options.
Download: 12 Tips on How to Build a Comprehensive Anti-Corruption Compliance Program