Presentation on theme: "CORPORATE COMPLIANCE OVERVIEW David Meisels OSB Corporate Counsel Roundtable April 26, 2012."— Presentation transcript:
CORPORATE COMPLIANCE OVERVIEW David Meisels OSB Corporate Counsel Roundtable April 26, 2012
What is Corporate Compliance? It’s a program to identify, prevent and report improper conduct within an organization. Typical compliance programs include policies for: Document Retention Code of Conduct (Ethics) Antitrust Anti-Bribery (FCPA & UK Bribery Act) Import/Export Regulation Reporting Mechanism
Why Have a Compliance Program? The requirement to have a corporate compliance policy stems from various rules and statutes specifically: Sarbanes Oxley for publicly traded companies The Federal Sentencing Guidelines for Organizational Defendants of 1991 which gives credit for having and enforcing an effective compliance program (mitigating factor in culpability score) The Office of Inspector General (for health care entities) Various federal laws and regulations in the financial services industry
Characteristic of an Effective Program Written policies & procedures Designate a compliance officer and other appropriate bodies Conduct effective training and education programs Develop effective lines of communication Enforce standards through well publicized disciplinary guidelines Conduct internal monitoring and auditing Respond to offenses promptly and develop corrective action (source OIG)
What Else is Required? Cannot be merely a paper program – is it designed and implemented in an effective manner? Training Updating Enforcement Remedial Action Taken Discussed/Publicized
Compliance – Who Leads? Who should lead compliance efforts? Typically a Chief Compliance Officer and a Compliance Committee No requirement as to who leads OIG in its settlement agreements says it cannot be the in-house legal department, the GC or CFO The CCO should have at minimum dotted line reporting to the CEO and/or Board of Directors Duties: developing, operating, and monitoring the compliance program Some companies have an independent CCO; others use an HR, Finance or Legal department employee (but see legal issues)
Issues: In-House Lawyer as CCO Different skill set: team building, encouraging communication, dialogue and disclosure, openness, approachability Conflict in Roles: “It doesn’t take a pig farmer from Iowa to smell the stench of conflict in that arrangement” (Chuck Grassley chair of Senate Finance Committee) Attorney: duty to defend client CCO: duty to make sure laws are being followed Attorney Client Privilege Issues Emphasis on self reporting, voluntary disclosure and transparency vs. confidentiality, maintaining Privilege Deferred prosecution in exchange for Privilege waiver Sufficient time to wear both hats?