Page 66 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

the focus is on compliance with the FCPA, given Commitment from Senior Management and a
the existence of anti-corruption laws in many other Clearly Articulated Policy Against Corruption
countries, businesses should consider designing Within a business organization, compliance
programs focused on anti-corruption compliance begins with the board of directors and senior
more broadly. 326 executives setting the proper tone for the rest of

the company. Managers and employees take their
Hallmarks of Effective Compliance
cues from these corporate leaders. Thus, DOJ and
Programs
SEC consider the commitment of corporate leaders
Individual companies may have different
to a “culture of compliance” 328 and look to see if
compliance needs depending on their size and the
this high-level commitment is also reinforced and
particular risks associated with their businesses,
implemented by middle managers and employees at
among other factors. When it comes to compliance,
all levels of a business. A well-designed compliance
there is no one-size-fits-all program. Thus, the
program that is not enforced in good faith, such as
discussion below is meant to provide insight into
when corporate management explicitly or implicitly
the aspects of compliance programs that DOJ
encourages employees to engage in misconduct to
and SEC assess, recognizing that companies may
achieve business objectives, will be ineffective. DOJ
consider a variety of factors when making their
and SEC have often encountered companies with
own determination of what is appropriate for
compliance programs that are strong on paper but
their specific business needs. 327 Indeed, small and
that nevertheless have significant FCPA violations
medium-size enterprises likely will have different
because management has failed to effectively
compliance programs from large multinational
implement the program even in the face of
corporations, a fact DOJ and SEC take into account
obvious signs of corruption. This may be the result
when evaluating companies’ compliance programs.
of aggressive sales staff preventing compliance
Compliance programs that employ a
personnel from doing their jobs effectively and of
“check-the-box” approach may be inefficient
senior management, more concerned with securing
and, more importantly, ineffective. Because each
a valuable business opportunity than enforcing a
compliance program should be tailored to an
culture of compliance, siding with the sales team.
organization’s specific needs, risks, and challenges,
The higher the financial stakes of the transaction,
the information provided below should not be
the greater the temptation for management to
considered a substitute for a company’s own
choose profit over compliance.
assessment of the corporate compliance program
A strong ethical culture directly supports a
most appropriate for that particular business
strong compliance program. By adhering to ethical
organization. In the end, if designed carefully,
standards, senior managers will inspire middle
implemented earnestly, and enforced fairly, a
managers to reinforce those standards. Compliant
company’s compliance program—no matter how
middle managers, in turn, will encourage employees
large or small the organization—will allow the
to strive to attain those standards throughout the
company generally to prevent violations, detect
organizational structure. 329
those that do occur, and remediate them promptly
In short, compliance with the FCPA and ethical
and appropriately.
rules must start at the top. DOJ and SEC thus

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