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Compliance Tips From People Who Know

Matt Kelly | September 15, 2009

Any compliance officers looking for ammunition to take into budget planning meetings for 2010, I have some for you—not that the news is exactly what corporations want to hear.

I’ve been attending the Society for Corporate Compliance and Ethics’ annual conference for the last two days, and this morning attendees heard an excellent presentation from Ruben Castillo, federal judge and vice-chairman of the U.S. Sentencing Commission, and Gary Grindler, deputy assistant attorney general at the Department of Justice. They gave a recap of where corporate prosecutions are likely to go in the next few years, and what corporations should be doing to prepare for life in that climate.

Recommendation number one: Don’t cut your compliance budget. As in, directly quoting Grindler: “Don’t cut back on compliance.” You don’t get much more clear than that.

Take Grindler at his word, since he oversees corporate prosecutions at the Justice Department and would know. But he also won’t do much to quell suspicions in Corporate America that prosecutors are always looking for any angle they can find to wrangle more concessions from the target of an investigation—and if you’ve cut your budget in the last year or two simply because the economy stinks, they’ll seize on that.

Is that suspicion actually true? I don’t know. Corporate counsels and federal prosecutors have given me conflicting answers to that question for years. And as I mentioned, Grindler’s warning is a nice quote to have on a PowerPoint slide when you’re in budget-planning sessions with the CFO and audit committee. But there you have it.

Other useful notes from his and Castillo’s comments this morning…

Don’t expect revisions to the U.S. Sentencing Guidelines as they pertain to corporations any time soon. Castillo said the Sentencing Commission is entertaining possible revisions to the guidelines for individuals, but amendments to those for organizations won’t be on the agenda for several years. “Those guidelines were born in 1991, and like my kids, they’re doing just fine,” he said. “They’re in adulthood.”

Do pay attention to your antitrust risks. Already we’ve heard the Justice Department’s head of antitrust, Christine Varney, make pointed comments that she plans to be much more aggressive about antitrust enforcement. And when an antitrust prosecution comes along, companies are liable for treble damages and restitution; in total, that can be more painful for a company than fines from a fraud conviction. So keep this particular compliance niche on your radar screen.

Expect more prosecution of individuals. Grindler said that will be a “cornerstone” of Justice Department action against fraud and corruption, and noted that just last week prosecutors convicted two California filmmakers under the Foreign Corrupt Practices Act for paying bribes in Thailand. For anti-corruption policies to have a meaningful effect, he said, “people have to go to jail.” Reuben put it more succinctly: “The public wants scalps.”

Speaking of the FCPA—as usual, it will “remain a significant priority” for the Justice Department, Grindler said. (I should just get a short-cut key for that phrase when quoting any federal prosecutor.) The feds are well aware that many other nations are embarking on economic stimulus spending of their own, and that those programs usually entail large public-works projects brimming with opportunity for fraud. Expect lots of scrutiny.

And to end on a brighter note: Reuben talked a bit about how often companies should be reviewing their compliance programs. Yes, he said, periodic reviews to ensure that your program is effective are critical. But the Sentencing Commission does want to be reasonable about exactly what “periodic” means. Reviews every six months, for example, “are very aggressive. Not a lot can be done in six months at a large company,” he said. Eighteen to 24 months might be more practical, he suggested, and the Commission understands that.