Governance Above and Beyond Compliance

It was once possible to satisfy regulators by having a compliance officer check a series of boxes indicating compliance with applicable regulations, but this is no longer the case. Companies are now expected to maintain compliance programs that are tailored for their industries, their business lines, risk factors, geographic regions and work force.

In April, the DOJ’s Fraud Section issued guidance related to a new pilot leniency program under the Foreign Corrupt Practices Act. First among the items generally required for a company to receive credit for remediation is the “[i]mplementation of an effective compliance and ethics program.”

Rather than focusing exclusively on specific rules, companies should consider how their compliance programs embed some key governance principals into core operations. These include accountability for all expenditures and reduction of off-the-book payments, a common mode of corruption. It also includes widespread transparency, and the generation of evidence that measures effectiveness in a way that regulators can see. The company’s compliance program should be reviewed periodically to ensure adaptation to changing environments and new risks.

For companies that fail to examine how they govern themselves, the impact on financial health and legal exposure can be substantial. Wrongdoing by directors and officers and other governance failings can diminish stock market value, harm reputation and expose the company and investors to civil and criminal liability. General counsel must recognize their own responsibility for good governance. It’s the key to success in the global economy.