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DOJ’s Disdain for “Paper” Compliance Programs

paperAs we come to the close of the Obama Administration, the Justice Department will certainly be able to point to its record of aggressive white-collar enforcement in a variety of areas. One glaring claim omission from that list will be prosecution of senior executives tied to financial institutions responsible for the financial demise in the late 2000s. With that one big exception, across the board DOJ has an impressive record of enforcement.

DOJ continued a trend that had started in the aftermath of the last financial crises in the early 2000s surrounding World Com, Enron and other major financial accounting scandals. The Bush Administration devoted significant resources to this effort, and Sarbanes-Oxley was enacted to usher in a new era for accounting and auditing functions.

Perhaps the most significant result from the Justice Department’s aggressive enforcement program has been the transformation of corporate compliance. DOJ has made it clear – in its settlements and public speeches – that corporations should design and implement effective corporate ethics and compliance programs.

We read every day about a new survey or trend in this area about how more companies are putting more resources into compliance, elevating corporate compliance officers, and redoubling their efforts to implement corporate compliance programs that identify and prevent potential violations of corporate codes of conduct and the law.

The reality, however, is not so clear. Companies continue to ignore ethics and compliance requirements, or fall short when it comes to implementation of a meaningful ethics and compliance program. In the absence of a real commitment by the board or the CEO, corporate compliance programs usually fall into the pit of “paper compliance,” meaning lots of well-intentioned policy pronouncements and descriptions of policies, but little follow through.paper4

DOJ prosecutors are very familiar with this scenario. In the initial stages of an investigation, outside counsel and corporate representatives meet with DOJ prosecutors to respond to the allegations of misconduct (or as part of a voluntary disclosure process) and tout the design and commitment of the company to effective compliance controls. It is a speech that DOJ prosecutors have heard over and over again – they can recite it in their sleep (not that it is so interesting that it is worthy of such a speech).

DOJ knows that the proof will tell the tale and often these compliance pronouncements are nothing more than empty words. Typically, DOJ prosecutors discover that the so-called world-class compliance program is nothing more than a “paper” program with lots of good intentions but very little action. It is easy to identify but very difficult to fix. Unfortunately, in most cases, it takes the sword of enforcement for a company to make that real commitment to an effective compliance program.

In some respects the lack of follow through is understandable – a CEO has to decide when and how to allocate resources to the compliance function. They are often under incredible financial pressure to meet quarterly results and expectations from the board, shareholders, institutional investors and other stakeholders. The choice sometimes (and falsely) comes down to financial performance, in their mind, and compliance. That is a false choice and one that rarely justifies inattention to the compliance program.

paper2Forward-thinking boards and CEOs know different – they know that growth and sustainability requires adequate attention to ethics and compliance as part of a long-term growth plan. There are some CEOs who operate with this mindset. Unfortunately, there are many who are slaves to the quarterly performance game.

DOJ can spot the difference between real and paper commitments to compliance. They have seen and heard all the dubious claims that come along with a “paper” program. Instead, they listen, thank the representatives and move on to do the real work – identify and understand the problem, hold those accountable for the wrongdoing and then require the company to make meaningful changes to its ethics and compliance program to ensure that the problem does not occur again.

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