By Jeffrey M. Kaplan and Rebecca Walker
Benchmarking has long had an important role in shaping organizational compliance programs, and over the years we have tried to play a part in this through benchmarking studies we have conducted for a variety of organizations — such as the Ethics and Compliance Officer Association, the Society for Corporate Compliance and Ethics and the Conference Board.
In that tradition, we are very pleased to announce that we are teaming with the FCPA Blog to launch Anti-Corruption Compliance Program Benchmarks.
The need for this study is particularly strong. More so than with perhaps any other major area of law, compliance programs matter for the FCPA — both because an ineffective program can itself be part of a violation of the internal controls provision of the Act — such as in the recent Alcatel-Lucent case, where one of the offenses to which the company pled guilty included a failure “to establish a sufficiently empowered and competent Corporate Compliance Office” — and because an effective program can be the cause of leniency in an enforcement decision.
Effective programs can also provide a complete defense to certain types of charges under the U.K. Bribery Act. And the OECD has, of course, established important expectations regarding anti-corruption compliance, too. However, FCPA compliance programs can be relatively complex affairs — and for many companies the official guidance on program design and operation is no more than the starting point to achieving real success in this area.
Anti-Corruption Compliance Program Benchmarks will, we hope, help companies bridge the gap between the limited guidance that the law offers and the practical, on-the-ground information that is needed for operational compliance program efficacy.
The study will cover the major components of anti-corruption compliance programs, including risk assessment; written policies; governance and management structures; procedures for approval of FCPA-sensitive-transactions (providing gifts, entertainment and travel to government officials; making facilitating/personal safety payments or charitable / political contributions; using third-party intermediaries; and undertaking mergers or acquisitions or joint-venture formation / investment); training / communications; auditing, monitoring and other forms of checking; program self-assessment; encouraging reports of suspected violations and otherwise seeking guidance; investigations and discipline; and compliance incentives (an area on which, the Alcatel-Lucent case suggests, the Justice Department now seems to be focused. Additionally, the survey will examine issues such as resources devoted to anti-corruption compliance programs, and also program independence, authority and “reach.”
The full report –- which will contain not only the results of the survey but also an analysis of the findings – will be made available free of charge to companies completing the survey. (All submissions will, of course, be held in strict confidence.) It will also be available at no cost to government agencies, non-profit organizations and academics, and to companies that have not completed the survey, consultants, other vendors and law firms at a modest charge.
The survey for Anti-Corruption Compliance Program Benchmarks will be rolled out soon. However, because the study is being conducted jointly with the FCPA Blog, we are announcing it now, so that readers of the Blog have a chance to suggest topics that they would like to see included in the survey instrument.
If you have any suggestions for (or questions about) the survey please contact us at either [email protected] or [email protected] –- and please do so no later than March 22, when our “comment period” closes.
Jeff Kaplan and Rebecca Walker are partners in Kaplan & Walker LLP, a law firm in Princeton, New Jersey and Santa Monica, California whose practice is devoted exclusively to compliance program related legal services. In addition to having conducted numerous compliance program benchmarking studies, they have published extensively in the compliance program field, including having recently authored a chapter on FCPA compliance programs for the BNA/ACCA Compliance Manual.