Ken, wasn't suggesting increased government regulation, rather useful tips for
our own consideration.
Gary StuyvenbergThompson Consulting
From: Ken Javor <ken.ja...@emccompliance.com>
To: EMC-PSTC@LISTSERV.IEEE.ORG
Sent: Thursday, January 14, 2016 10:59 PM
Subject: Re: [PSES] Is your company doing enough to ensure adequate EMC
compliance?
Re: [PSES] Is your company doing enough to ensure adequate EMC compliance?“Last
week was a good one for the compliance profession. “
Could not disagree more. This is big brother, or socialism, call it what you
will. A product either meets requirements, or it doesn't. The gov’t
instructing the private sector on how to get there is worse than superfluous,
it’s damaging.
Ken Javor
Phone: (256) 650-5261
From: "gdstuyvenb...@yahoo.com" <0000058ee1229c70-dmarc-requ...@ieee.org>
Reply-To: "gdstuyvenb...@yahoo.com" <gdstuyvenb...@yahoo.com>
Date: Fri, 15 Jan 2016 03:33:42 +0000
To: <EMC-PSTC@LISTSERV.IEEE.ORG>
Subject: [PSES] Is your company doing enough to ensure adequate EMC compliance?
As this is a board that deals primarily with regulatory/compliance issues, I
thought the following article was pertinent to our cause and deserving of
consideration.
FEDS AS THOUGHT LEADERS: A BACK-DOOR COMPLIANCE DEFENSE TAKES SHAPE
<http://www.fcpablog.com/blog/2015/11/11/feds-as-thought-leaders-a-back-door-compliance-defense-takes.html>
By Richard L. Cassin <http://www.fcpablog.com/blog/author/fcpablog> |
Wednesday, November 11, 2015 at 7:53AM
Assistant Attorney General Leslie Caldwell said last week the DOJ's hiring of a
compliance counsel doesn't mean the agency is "moving toward recognizing or
instituting a 'compliance defense.'"
What then will the compliance counsel do?
"She will help us evaluate each compliance program on a case-by-case basis --
just as the department always has -- but with a more expert eye," AAG Caldwell
told a gethering
<http://www.justice.gov/opa/speech/assistant-attorney-general-leslie-r-caldwell-speaks-sifma-compliance-and-legal-society>
of compliance officers in New York.
Caldwell, pictured above, then set out the factors the DOJ compliance counsel
will assess:
- Does the institution ensure that its directors and senior managers provide
strong, explicit and visible support for its corporate compliance policies?
- Do the people who are responsible for compliance have stature within the
company? Do compliance teams get adequate funding and access to necessary
resources? Of course, we won’t expect that a smaller company has the same
compliance resources as a Fortune-50 company.
- Are the institution’s compliance policies clear and in writing? Are they
easily understood by employees? Are the policies translated into languages
spoken by the company’s employees?
- Does the institution ensure that its compliance policies are effectively
communicated to all employees? Are its written policies easy for employees to
find? Do employees have repeated training, which should include direction
regarding what to do or with whom to consult when issues arise?
- Does the institution review its policies and practices to keep them up to
date with evolving risks and circumstances? This is especially important if a
U.S.-based entity acquires or merges with another business, especially a
foreign one.
- Are there mechanisms to enforce compliance policies? Those include both
incentivizing good compliance and disciplining violations. Is discipline even
handed? The department does not look favorably on situations in which low-level
employees who may have engaged in misconduct are terminated, but the more
senior people who either directed or deliberately turned a blind eye to the
conduct suffer no consequences. Such action sends the wrong message -- to other
employees, to the market and to the government -- about the institution’s
commitment to compliance.
- Does the institution sensitize third parties like vendors, agents or
consultants to the company’s expectation that its partners are also serious
about compliance? This means more than including boilerplate language in a
contract. It means taking action -- including termination of a business
relationship -- if a partner demonstrates a lack of respect for laws and
policies. And that attitude toward partner compliance must exist regardless of
geographic location.
Two days after AAG Caldwell's talk in New York, Andrew Ceresney, head of the
SEC's enforcement division, spoke to
<http://www.fcpablog.com/blog/2015/11/9/sec-we-protect-compliance-officers-except-when-we-prosecute.html>
the National Society of Compliance Professionals at the group's annual event
in DC.
He started with a disclaimer: "[T]he views I express here today are my own and
do not necessarily represent the views of the Commission or its staff."
Then he said something every compliance officer and corporate director and
C-suiter should hear and remember: "I have found that you can predict a lot
about the likelihood of an enforcement action by asking a few simple questions
about the role of the company’s compliance department in the firm."
Here are those "simple" questions:
- Are compliance personnel included in critical meetings?
- Are their views typically sought and followed?
- Do compliance officers report to the CEO and have significant visibility
with the board?
- Is the compliance department viewed as an important partner in the
business and not simply as a support function or a cost center?
- Is compliance given the personnel and resources necessary to fully cover
the entity’s needs?
"Far too often," Ceresney said, "the answer to these questions is no, and the
absence of real compliance involvement in company deliberations can lead to
compliance lapses, which, in turn, result in enforcement issues." (our emphasis)
What Caldwell and Ceresney said last week doesn't equal a compliance defense
for the FCPA. Congress hasn't changed the law, and courts haven't reinterpreted
it. There's still no formal way for a defendant to plead a compliance defense
under the FCPA, and respondeat superior (in all its unfairness
<http://www.fcpablog.com/blog/2008/11/24/in-the-masters-defense.html> ) is
still alive and well.
Yet what the enforcement top guns said last week will have an impact. They
spoke publicly. They used plain English. They were specific in describing what
the DOJ and SEC expect to see or not see when evaluating whether to bring an
enforcement action.
In house lawyers and outside counsel can measure the company's behavior against
those words, and argue why an enforcement action isn't warranted. Public
accountability of the DOJ and SEC and how they make decisions to bring FCPA
enforcement actions just increased.
Beyond that, Caldwell and Ceresney last week gave companies more reasons to
have strong compliance programs. And they gave compliance officers more tools
to work with, and more authority. Those are the same objectives of a compliance
defense.
Last week was a good one for the compliance profession.
- See more at:
http://www.fcpablog.com/blog/2015/11/11/feds-as-thought-leaders-a-back-door-compliance-defense-takes.html#sthash.vw9uPoS1.dpuf
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IEEE PSES Online Communities site at http://product-compliance.oc.ieee.org/ can
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