Though many countries now require companies to implement compliance programs for various reasons, the United States has, through the establishment of the U.S. Federal Sentencing Guidelines (“Guidelines”), effectively mandated the creation of compliance programs in the U.S. For foreign companies doing business in the U.S., it is extremely important to understand that the effective implementation of a compliance program in accordance with U.S. law is not voluntary but in fact compulsory. Why?
According to the Guidelines, a corporation or organization may be sentenced or fined for federal offenses connected with antitrust, securities, bribery, fraud, money-laundering, criminal business activities, embezzlement, etc. It is quite broad and covers many “illegal activities”. When deciding on an appropriate sentence, Courts must now look at whether a company has an effective “compliance program” or not. If an effective compliance program exists, such a finding will mitigate sentencing under the Guidelines. If one does not exist, there is no mitigation. Considering the multitude of offenses that the Guidelines covers, it is imperative that a company doing business establish an effective compliance program.
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As the Revised U.S. Sentencing Guidelines (“Revised Guidelines”) recognize that effective compliance requires more than policies and procedures, it also entails a focus on organizational culture that promotes law abidance. In other words, under the Revised Guidelines in the U.S., there is a major focus on compliance and ethics which requires a compliance program to focus on:
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- Ethical Behavior
In order for a company doing business in the United States to have an effective compliance program, it has to meet specific elements required under the Revised Guidelines. Failure to meet these elements, will render the compliance program useless under U.S. Federal Law. Therefore, I highly recommend any company doing business in the U.S., not only to implement a compliance program, but an “effective one” as well. A company that fails to do so does so at its own peril.
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In my next post, we will take a detailed look at each of the elements needed.