The joint Department of Justice and Securities and Exchange Commission 2012 FCPA Guidance came out five years ago this month. All compliance practitioners should thank the government regulators and prosecutors who had a part in drafting this most remarkable of documents. The Man From FCPA believes it is the best government generated source regarding what constituted at the time (and probably still does) a best practices compliance program. For anyone interested in exploring the lessons learned about Foreign Corrupt Practices Act compliance programs and what the government expects to see, the 2012 FCPA Guidance is the best document you can start with.
The “Ten Hallmarks of an Effective Compliance Program”, is still a useful part of the FCPA Guidance. While the Guidance cautions that there is no “one-size-fits-all” compliance program, it recognizes a variety of factors such as size, type of business, industry and risk profile a company should determine for its own needs regarding a FCPA compliance program. But the Guidance made clear that these ten points are “meant to provide insight into the aspects of compliance programs that DOJ and SEC assess”. In other words you should pay attention to these and use this information to assess your own compliance regime.
What is the significance of these Ten Hallmarks today? Earlier this year, the DOJ released the Evaluation of Corporate Compliance Programs (Evaluation), based on these Ten Hallmarks. In April 2016, they released the FCPA Pilot Program, through which it further refined and clarified many of the specific Hallmarks from the 2012 FCPA Guidance. Indeed, in every speech since the release of the 2012 FCPA Guidance, where the DOJ has discussed its views on compliance best practices, it is always in reference to the 10 Hallmarks of an Effective Compliance Program.
While others have leveled a variety of criticism about the 2012 FCPA Guidance, they miss the essential point that for the compliance practitioner, it is an excellent resource about operationalizing compliance by putting into the business process of your organization. Here’s to the Guidance at the ripe of age of 5. Thanks for coming into all of our (compliance) lives.