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Thompson Draft Draft.Qxd Conversations With... SPRING 2012 The Honorable Dick Thornburgh Larry D. Thompson The Issue: Advancing Business Compliance programs did exist in Integrity through Corporate specific areas such as antitrust. It has Compliance been my experience over the years Dick Thornburgh that businesspeople are generally very K & L Gates LLP In this edition of Washington Legal honest; whatever compliance efforts Foundation’s CONVERSATIONS WITH, that existed previously were well- former Pennsylvania Governor and meaning and undertaken in good Attorney General of the United States faith. What was not understood 20 to Dick Thornburgh discusses the vex- 25 years ago was exactly how to ing challenges of corporate compli- implement these programs, how much ance with former Deputy Attorney training was needed under these pro- General Larry D. Thompson. Mr. grams, or even how significant these Thompson draws upon his experi- programs are to a company’s busi- ences as a private attorney, a U.S. ness. By today’s standards, the com- Attorney, Deputy Attorney General, pliance programs of that era would Larry Thompson and general counsel of PepsiCo to mostly be viewed as inadequate. University of Georgia explain the legal, financial, and other Law School benefits of designing and maintaining Governor Thornburgh: Can you note effective corporate compliance pro- two or three developments over the grams. He also offers his thoughts on past several decades that inspired current complicating factors such as greater commitment to compliance the rise of whistleblowing and he and the formalization of programs? adovcates for an affirmative defense of an effective compliance plan. Mr. Thompson: Yes. Clearly, the promulgation in 1991 of the organiza- Governor Thornburgh: Let’s start tional sentencing guidelines by the by putting the sophisticated compli- U.S. Sentencing Commission has ance programs we see today into con- been very important. These guide- text. What was the state of corporate lines reward corporations for effective compliance 20 to 25 years ago? How compliance programs. But, before common was it for corporations then that signal event, the development of to have such programs, and how robust compliance program expecta- much commitment to compliance did tions in the defense industry was you see at that time? huge. Lawyers who counseled busi- nesses closely followed the Defense Larry Thompson: Corporate com- Industry Initiative on Business Ethics pliance programs of any type were not and Conduct and the Department of common 20 to 25 years ago. Defense’s Voluntary Disclosure ® WLF publications are available on Lexis/Nexis www.wlf.org THE ISSUE: BUSINESS INTEGRITY & CORPORATE COMPLIANCE Program. Finally, Sarbanes-Oxley’s best motivate directors or other officers Section 406, which calls for companies to embrace a compliance approach to have ethics programs for key financial inspired by adherence to business executives, has been the “period at the integrity, rather than one which seeks “What is different end of the sentence” regarding the neces- baseline legal compliance? today is that a whole sity for having effective compliance and cadre of professionals ethics programs. Mr. Thompson: The general counsel have developed an and CEO must engage the board of direc- expertise in develop- Governor Thornburgh: Changes in tors and other officers on the importance ing and implementing government enforcement and policies of compliance and ethics programs. This effective compliance certainly motivate improvement in com- is the all-important “tone at the top.” programs.” pliance, but how much of the increased They must be committed to the idea that commitment can be attributed to corpo- compliance and ethics are extremely Larry Thompson rate leaders’ drive to be better corporate important and are the responsibility of citizens or display a culture of business everyone in the organization—not just integrity? the general counsel or chief compliance officer. And they must keep their per- Mr. Thompson: I don’t believe that sonal commitment to compliance and today’s business leaders are more com- ethics top of mind in the organization. mitted to business integrity than those of Of course, they must lead by example. the past. In fact they may have more pressure to achieve short-term financial Governor Thornburgh: Is there a com- results for shareholders than did business petitive advantage in maintaining a leaders of the past, who often empha- “beyond-right” approach to compliance sized other stakeholders in a company’s and a culture of business integrity? business in addition to shareholders. What is different today is that a whole Mr. Thompson: Yes, absolutely. What cadre of professionals have developed an you call the “beyond-right” approach to expertise in developing and implement- compliance and a “culture of business ing effective compliance programs. integrity” is what I’ve seen over the past There is also a recognition by lawyers, 35 years in the very best companies. academics, and businesspeople that com- These companies generally are the most pliance programs alone are not sufficient innovative, recruit and retain the best to address all the ethical issues a business employees, have the most loyal cus- may face. We have all seen situations tomers, and manage for long-term suc- where something may be technically cess and growth in shareholder value. legal but still problematic from an ethical They avoid risky, short-term “fixes.” standpoint. Corporate leaders are getting These companies have solid reputations much more informed advice today on and operate under a strong set of core compliance and ethics programs than values that is exemplified by the phrase, they did in the past. “High Performance with High Integrity,” as Ben Heineman Jr., the former general Governor Thornburgh: How can a counsel of General Electric, puts it. general counsel or chief executive officer Also, based on my experience, things 2 © 2012 Washington Legal Foundation SPRING 2012 will almost always, from time to time, go limitations of a compliance program; wrong in almost every company. A com- there is no compliance program that can pany’s reputation for high integrity is prevent all criminal activity by a corpo- really its best defense in dealing with ration’s employees. Nevertheless, we enforcement officials and government as gave real credit to a bona fide, effective it goes about sorting things out. This compliance program. If the compliance reservoir of good will is very, very valu- program was effective and solid, it could able. You cannot underestimate how result in a decision to not charge the cor- important it is. Finally, I’ve seen some poration and charge only its agents or studies, particularly those by Ethisphere employees. and Curtis Verschoor, that support the idea that more ethical companies, how- Governor Thornburgh: From your ever that is all measured, perform better experience as a general counsel to a than other companies. I do not know multinational corporation, how can such how good these studies are, but they’re a company best instill an ethic of integri- out there. ty and compliance across borders and cultures? Governor Thornburgh: When you were involved on the enforcement side Mr. Thompson: I do not believe there’s as a U.S. Attorney or as Deputy Attorney only one way or right way to do it. My General, what shaped your expectations experience is that success in compliance of an “effective compliance program”? across borders and cultures requires, Have these expectations changed over obviously, hard work and a singular ded- the past ten years you have been out of ication to making it happen. You have to government? integrate the company’s core values for integrity into the way the corporation Mr. Thompson: As Deputy Attorney does business. It is very important that General, especially in the aftermath of global corporations have global values. corporate scandals like Enron, I was con- It is also very important that, when mea- cerned with whether a corporation had a suring performance of senior executives, real compliance program and not a pre- ethics be a paramount consideration. tend or paper one. The question we Both results and means have to be asked was, “Does the corporation’s com- important. All of this will require a pliance program work?” We looked at considerable investment of time, whether there was sufficient staff and resources, and sweat equity. other resources devoted to the program. Other considerations involved were Governor Thornburgh: How impor- whether the corporation’s employees tant is it for a general counsel and a cor- were adequately informed about the pro- porate compliance officer to become gram and convinced of the corporation’s fully versed in the business in which commitment to it. We wanted to know their company operates? Do they have to whether there was appropriate discipline, be business experts in order to be effec- including discipline of higher-ups. tive compliance experts? Importantly, we understood the realistic www.wlf.org © 2012 Washington Legal Foundation 3 THE ISSUE: BUSINESS INTEGRITY & CORPORATE COMPLIANCE Mr. Thompson: I think it is extremely The chief compliance officer, on the important that the general counsel and other hand, is not delivering legal advice chief corporate compliance officer have to his corporate colleagues. Instead, he a deep understanding of the businesses in is managing and implementing the many “I am aware that in which their company operates. As moving parts of an effective compliance some corporations the Norman Veasey and Christine Di program. Code of conduct development general counsel also Guglielmo point out in their wonderful and training, monitoring hotline calls, serves as chief com- new book, Indispensable Counsel: The working with the legal department, pliance officer. I pre- Chief Legal Officer in the New Reality, human resources, and internal audits on fer that they be sepa- today’s general counsel, in order to be investigations are all important responsi- rate positions.” effective, must be able to “partner” with bilities under an effective compliance her corporate colleagues to provide program.
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