Every level at a company has a role in compliance. As the Justice Department and the SEC noted in the FCPA Guidance, compliance goes from the boardroom to the shop floor. The Man From FCPA was reminded of the role of a board in a recent article in the New York Times, which reported that “that the chairman of the supervisory board, Hans Dieter Pötsch, is suspected by German prosecutors of violating securities laws.” These violations were around the company’s failure to keep shareholders abreast of the emissions-testing scandal and its potential costs. VW has continued to hold to its line of the ‘rogueness’ defense; evolving from one or two rogue engineers to some un-named group mid-level engineers to their managers.

Moreover if knowledge of the scandal went up to the board level before it became public the cost to the company could increase astronomically. Investigators are focusing on the approximately one-year time period from the time state regulators in California started asking pointed questions and the company “lied through their teeth” in responses which included presentation of “fake engineering data to try to explain the huge discrepancy” between the readings in the laboratory and those obtained in road trials.

This information will provide more than additional data for shareholder actions in the United States in addition to those in Germany. Even if actual knowledge if of the fraud and the company’s attempts to hide it from regulators is not traced up to the board, the failure to come clean with accurate information to shareholders for this one-year period could prove very costly to the company.

Unlike the Wells Fargo board, which was on notice for at least two years’ prior the public announcement of its fraudulent accounts scandal, some of the VW Board members have claimed they were first made aware of the scandal when they read newspaper accounts of the it. Yet the VW Board may be on the hook for greater penalties if German prosecutors find there was actual knowledge or active malfeasance at the VW Board level.