The Man from FCPA occasionally puts on FCPA training. One of the things he highlights is not to put stupid stuff in e-mails. Such evidence can be clear signs something is amiss. However after this week, Fox has have to amend his training to add not to put illegal conduct into PowerPoint presentations to senior management, after it was reported in the New York Times that in 2006, a top technology executive at Volkswagenin prepared a slide deck for management, laying out in detail how the automaker could cheat on emissions tests in the United States.
As more and more of the internal investigation dribbles out, VW’s claim that its emission-testing defeat device was the creation of a small group of ‘rogue engineers’ is rightly dying a death of 1000 cuts. The piece noted, “It is not known how widely the presentation was distributed at Volkswagen. But its existence, and the proposal it made to install the software, highlight a series of flawed decisions at the embattled carmaker surrounding the emissions problem.”
The article also reported that the defeat device had been enhanced over the years. The software that allowed VW cars to appreciate when the car was being tested, differentiated from when the car was in use on the road. In tech terms, the software was upgraded from defeat device 1.0 to 2.0 and upward to “detect other telltale signs of a regulatory test.”
The rogue employee defense was never going to work. To have software in place for over 10 years designed to defraud a regulatory scheme, requires a wide swath of knowledge in any organization. But not only within the organization, those vendors in the supply chain, who supplied component parts or products, had to be in on the entire scheme as well.
So Fox has now amended his admonition about putting stupid stuff in e-mails to also caution against outlining how to engage in illegal conduct in formal presentations. Maybe he should make a PowerPoint about it.