Page 127 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

charged in the matter and had “cooperated with the SEC’s not apply to them. . . . Corporate officers and directors hold
inquiry and conducted a thorough internal investigation to the ultimate power and responsibility for restoring public
determine the scope of the improper payments and other trust by conducting themselves in a manner that is worthy
misconduct involved”), available at http://www.sec.gov/news/ of the trust that is placed in them.” Cynthia Glassman, SEC
press/2012/2012-78.htm. Implementation of Sarbanes-Oxley: The New Corporate
Governance, Remarks at National Economists Club (Apr.
325 See JM § 9-28.800.B. 7, 2003), available at http://www.sec.gov/news/speech/
spch040703cag.htm.
326 See, e.g., Int’l Chamber of Commerce, ICC Rules
on Combating Corruption (2011) [hereinafter ICC Rules 329 Indeed, research has found that “[e]thical culture
on Combating Corruption], available at https://cdn. is the single biggest factor determining the amount of
iccwbo.org/content/uploads/sites/3/2011/10/ICC-Rules- misconduct that will take place in a business.” Ethics
on-Combating-Corruption-2011.pdf; Transparency Int’l, Resource Center, 2009 National Business Ethics Survey:
Business Principles for Countering Bribery (3rd ed. 2013) Ethics in the Recession (2009), at 41. Metrics of ethical
[hereinafter Business Principles for Countering Bribery], culture include ethical leadership (tone at the top), supervisor
available at https://issuu.com/transparencyinternational/ reinforcement of ethical behavior (middle management
docs/business_principles_web_final; United Kingdom reinforcement), and peer commitment (supporting one
Ministry of Justice, The Bribery Act of 2010, Guidance about another in doing the right thing). Ethics Resource Center,
procedures which relevant commercial organisations 2013 National Business Ethics Survey: Workplace Ethics in
can put into place to prevent persons associated with Transition (2014) at 19. Strong ethical cultures and strong
them from bribing (2010), available at http://www.justice. ethics and compliance programs are related, as data show
gov.uk/downloads/legislation/bribery-act-2010-guidance. that a well-implemented program helps lead to a strong
pdf; World Bank Group, Integrity Compliance Guidelines ethical culture. Id. at 17. “Understanding the nature of any
(2017) [hereinafter Integrity Compliance Guidelines], gap between the desired culture and the actual culture is
available at https://wallensteinlawgroup.com/wp-content/ a critical first step in determining the nature of any ethics-
uploads/2017/12/WBG-Integrity-Compliance-Guidelines- based risks inside the organization.” David Gebler, The Role of
full.pdf; Asia-Pacific Economic Cooperation, APEC Anti- Culture at 1.7, in Society of Corporate Compliance and Ethics,
corruption Code of Conduct for Business (2007) [hereinafter The Complete Compliance and Manual (2011). To create an
APEC Anti-corruption Code], available at http://www.apec. ethical culture, attention must be paid to norms at all levels
org/Groups/SOM-Steering-Committee-on-Economic- of an organization, including the “tone at the top,” “mood in
and-Technical-Cooperation/Task-Groups/~/media/Files/ the middle,” and “buzz at the bottom.” Id. 1.9-1.10.
Groups/ACT/07_act_codebrochure.ashx; Int’l Chamber of
Commerce, et al., Resisting Extortion and Solicitation in 330 See, e.g., U.S. Sentencing Guidelines § 8B2.1(b)(2)(B)-
International Transactions: A Company Tool for Employee (C) (2018).
Training (2011), available at https://iccwbo.org/content/
uploads/sites/3/2016/11/RESIST-English.pdf; Int’l Chamber 331 Id.
of Commerce, et al., Clean Business Is Good Business: The
Business Case against Corruption (2008), available at https:// 332 Id.
www.unglobalcompact.org/library/158; World Economic
Forum, Partnering Against Corruption Initiative: Global 333 Id.
Principles for Countering Corruption (May 2016) [hereinafter
Partnering Against Corruption], available at http://www3. 334 See, e.g., Ethics and Compliance Officer Association
weforum.org/docs/WEF_PACI_Global_Principles_for_ Foundation, The Ethics and Compliance Handbook: A
Countering_Corruption.pdf; Working Group on Bribery, Practical Guide From Leading Organizations (2008) at 13-26
OECD, Good Practice Guidance on Internal Controls, Ethics, [hereinafter The Ethics and Compliance Handbook].
and Compliance (Feb. 2010) [hereinafter OECD Good
Practice Guidance], available at http://www.oecd.org/daf/ 335 See, e.g., U.S. Sentencing Guidelines § 8B2.1(b)(4)
anti-bribery/44884389.pdf; U.N. Global Compact, The Ten (2018).
Principles of the UN Global Compact [hereinafter The Ten
Principles], available at https://www.unglobalcompact.org/ 336 See U.S. Sentencing Guidelines § 8B2.1(b)(6) (2018)
what-is-gc/mission/principles. (“The organization’s compliance and ethics program shall
be promoted and enforced consistently throughout the
327 This is also reflected in the Sentencing Guidelines, organization through (A) appropriate incentives to perform
which recognizes that no single, formulaic set of requirements in accordance with the compliance and ethics program; and
should be imposed, but instead focuses on a number of (B) appropriate disciplinary measures for engaging in criminal
factors like “applicable industry practice or the standards conduct and for failing to take reasonable steps to prevent or
called for by any applicable governmental regulation,” the detect criminal conduct.”).
size of the organization, and whether the organization has
engaged in similar misconduct in the past. See U.S. Sentencing 337 See, e.g., Joseph E. Murphy, Society of Corp.
Guidelines § 8B2.1 & app. note 2 (2018). Compliance and Ethics, Using Incentives in Your Compliance
and Ethics Program (2011) at 4; The Ethics and Compliance
328 This was underscored by then-SEC Commissioner Handbook, supra note 334, at 111-23.
Cynthia Glassman in 2003 in a speech on SEC’s implementation
of the Sarbanes-Oxley Act: “[T]he ultimate effectiveness of 338 Stephen M. Cutler, Director, Division of Enforcement,
the new corporate governance rules will be determined by SEC, Tone at the Top: Getting It Right, Second Annual General
the ‘tone at the top.’ Adopting a code of ethics means little Counsel Roundtable (Dec. 3, 2004), available at http://www.
if the company’s chief executive officer or its directors make sec.gov/news/speech/spch120304smc.htm.
clear, by conduct or otherwise, that the code’s provisions do
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