We Get By With a Little Help From Our Friends

Yesterday, Assistant Attorney General Kenneth A Polite, Jr. laid out the details of revisions to the FCPA Corporate Enforcement Policy (CEP) that provide “specific, additional incentives to companies for voluntary self-disclosures, as well as for cooperation and remediation.” In short, expanding the parameters by which companies that have broken the law may still earn lighter treatment from the DOJ, and deepening the rewards for good companies that got into trouble because of an isolated bad apple.

Polite is clear in his comments—which you can read in full here—that as much as the DOJ values the cooperation of the very companies it polices, and as much as the DOJ wishes to give those companies more reason to cooperate (or at least defuse fears that cooperation could actually lead to more severe punishment), it also expects those same companies to go truly above and beyond if they are to expect special treatment. These are, after all, companies that have broken the law. At that point, the rewards for mere compliance are off the table—and rightfully so.

There’s a lot to unpack in Polite’s commentary, which doubles the range and broadens the discretion by which companies may receive reduced penalties, depending on their intensity of self-disclosure, cooperation, and remediation. This is no effort to let bad guys get away with things, but rather, an intentional effort to make companies understand that even if there are serious issues in their self-disclosure, cooperation, and remediation, there is probably still an avenue by which they can get better treatment than if they do nothing. The DOJ wants the people it’s policing to help them do the policing. These new guidelines prove it, and one suspects, they will be successful at it, as well.

Of particular interest is the degree to which having a robust and effective compliance department beforehand can help even an egregious offender receive lighter treatment. Ideally, the kind of compliance program the DOJ is looking for is one that will prevent conversations with the DOJ from ever taking place. But Polite’s comments underscore what we all know: humans are flawed creatures who will always find new ways to disappoint. And sometimes those disappointments can be severe. Polite understands this and wants to make sure that companies that take compliance seriously have an option to distinguish themselves from the average corporate wrongdoer. Not only is that fair, but it provides another avenue by which compliance departments can (admittedly, under suboptimal conditions) prove the value of their investment. Strictly from a compliance point of view, this is a pretty big carrot.

“We are going to be closely examining how companies discipline bad actors and reward the good ones,” Polite notes. That last part is especially significant, in light of the new guidelines on allowing even egregious offenders a wide lane of partial redemption, because it puts cultures of integrity and accountability front and center. A great compliance program does not exist in a vacuum. There are zero companies out there with world-class compliance programs that don’t also have significant support from the top and strong ethical culture throughout the enterprise. These are the pillars on which a good compliance program rests. To have the kind of compliance program you need to get a declination, you need something even bigger, really. You need to care enough about ethics to invest meaningfully in it. That means a strategic view toward accountability and integrity, so when and if there is a tactical failure—and they do happen—that should not automatically discount what is, for the company, a virtuous way of life.

2023 Ethisphere Ethical Culture Report Reveals the Impacts of the Pandemic on Corporate Accountability

Report Shows Significant Increase in Reports of Bullying in the Workplace, Importance of Training and Communication About Misconduct   NEW YORK January 12, 2023Ethisphere®, the global leader in defining and advancing the standards of ethical business practices, today unveiled the latest volume of its 2023 Ethical Culture Insights Report. The report derives insights produced from Ethisphere’s proprietary Ethical Culture Quotient (CQ) data set, which studies the elements of ethical culture, such as whether employees will report any ethical wrongdoings within their organization.   Data for this report was collected from an Ethisphere survey of over two million global employees from Ethisphere’s client base between 2016 through the end of Q3 2022. The 54-question survey focused on reporting behavior and how the behavior reflected certain realities around organizational speak-up culture.   Key Findings from the Report:
  • Ethical culture within businesses increased across the board – Based on Ethisphere’s Eight Pillars of an Ethical Culture, respondents showed more favorable perceptions of their company’s ethical culture during the pandemic. Like all businesses, respondents faced greater turmoil during the last few years. But even amid such trying conditions, the culture of ethics they had in place before COVID-19 grew even stronger – helping to reduce risk, retain talent, and build value within their organizations. However, during the pandemic, although people became more willing to report misconduct and observed more of it, they tended to report it less.
  • Claims of bullying increased significantly – In stark contrast to the other 26 types of reported misconduct, Ethisphere’s report found that bullying jumped a shocking 13 percent during the past few years. The report highlights several possible explanations for this significant increase, including the increasing presence of Gen Z employees, who as an age cohort report high levels of workplace bullying, as well as high levels of bullying in general. This increase also correlates with an increase in bullying during the pandemic, especially as people spent more time on-screen.
  • Gen Z employees are least likely to report misconduct – While Gen Z represents a smaller portion of the data set from this research, it is interesting to note they are the least likely age group to report bad behavior. When compared to their Millennial, Gen X, and Boomer colleagues, 56 percent of Gen Z employees stated that they did not report misconduct when they saw it because they didn’t believe corrective action would be taken, followed by 47 percent who feared retaliation.
  • Managers matter – More than half of respondents (56 percent) named their immediate manager as the avenue by which they reported misconduct, which aligns with prior Ethisphere cultural reports for being the most common method of reporting misconduct. This underscores the importance of businesses preparing their managers to facilitate discussions around raising concerns and proactively set corporate-wide expectations around what reporting, investigations, and actions will entail.
  “Culture has become a topic of critical importance to every corporate stakeholder – employees, consumers, investors and regulators. At Ethisphere, sharing our data and expertise – so that all can learn and improve – is central to our mission,” said Erica Salmon Byrne, Ethisphere’s chief executive officer. “Our latest report covers top trends from our global dataset, which has grown to over two million employee responses. With a number that large, we can do multiple demographic data cuts, including a pre-pandemic and pandemic era analysis, a generational analysis, and an update on the importance of managers. Why managers? Our data shows that 62 percent of employees who made a report say they took their concern to their manager. These front-line employees are critical to ensuring that an ethical culture is embedded across an organization and that reports are effectively addressed.”   Reporting Methodology The data in Ethisphere’s 2023 Ethical Culture and Compliance Perceptions Assessment derives from a confidential, online survey administered by Ethisphere from 2016 through the end of Q3 2022. Over two million employees from around the world responded to a 54-question survey focused on reporting behavior and how the behavior reflected certain realities around organizational speak-up culture, representing the views of employees across the Ethisphere’s global client base. Data classified as “pre-pandemic” was received prior to March 2020.   Questions were presented using the framework of Ethisphere’s Eight Pillars of Ethical Culture and consisted of questions with Likert-scale “strongly agree” to “strongly disagree” response options, multiple select, and open comment questions. Participating companies were provided the ability to configure or remove survey questions. Further details on the reporting methodology can be found in the report.   Ethisphere’s Eight Pillars of Ethical Culture The Eight Pillars of ethical culture that Ethisphere measures are:
  • Awareness of Ethics and Compliance (E&C) Program and Resources
  • Perceptions of the Effectiveness of the E&C Function – Training, Communications, etc.
  • Observing and Reporting Ethical Misconduct
  • Pressure to Compromise Standards to Meet Goals
  • Organizational Justice – Perceptions of Wrongdoer Accountability Across Roles
  • Manager Perceptions – Supervisor Conduct and Ability to Approach with Concerns
  • Perceptions of Conduct, Values and Communications of Senior Leadership
  • Perceptions of Values and Priorities Among Peers and Environment
  These eight foundational pillars serve as a framework for systematically and objectively capturing employee sentiment on the formal and informal ethical systems of the enterprise. Developed by Ethisphere experts in collaboration with members of its Business Ethics Leadership Alliance (BELA), each pillar is designed to provide insights that lead to clear action and remediation (or praise) where it is most needed. The report provides excellent takeaways for all companies, but also provides data that leaders can use to determine if their ethics programs are lacking and if they need additional help in building a strong culture.   Register for Ethisphere’s Webinar to Learn More!

Join Ethisphere’s experts on January 19th from 1:00-2:00 PM EST for a deeper dive into the latest findings featured in this new report. The webinar, “Ethical Cultural Data Findings: Pandemic Lessons and a Path Forward,” will examine interesting insights from Ethisphere’s data set and discuss ways in which organizations can improve their ethical culture. Register today at:

https://ethisphere.com/event/ethical-culture-data-findings-pandemic-lessons-and-a-path-forward/.   About Ethisphere Ethisphere is the global leader in defining and advancing the standards of ethical business practices that fuel corporate character, marketplace trust, and business success. Ethisphere has deep expertise in measuring and defining core ethics standards using data-driven insights that help companies enhance corporate character. Ethisphere honors superior achievement through its World’s Most Ethical Companies® recognition program, provides a community of industry experts with the Business Ethics Leadership Alliance (BELA), and showcases trends and best practices in ethics with Ethisphere Magazine. Ethisphere also helps to advance business performance through data-driven assessments, guidance, and benchmarking against its unparalleled data: the Culture Quotient dataset focused on ethical culture and featuring the responses of 2+ million employees around the world; and the Ethics Quotient dataset, featuring 200+ data points highlighting the ethics, compliance, social, and governance practices of the World’s Most Ethical Companies. For more information, visit https://ethisphere.com.   ###   Media Contact: Anne Walker VP, Media and Communications Anne.Walker@Ethisphere.com @Ethisphere

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ACC and General Counsel Oath Survey: GC Report Mixed Progress Promoting DEI Practices

GC in larger organizations report stronger progress and majority of GC report they do not request their law firms to track KPIs, but those that do rated significantly higher progress in achieving DEI objectives.   Washington – The Association of Corporate Counsel (ACC), in partnership with the General Counsel Oath initiative, today released the “General Counsel Diversity, Equity, & Inclusion (DEI) Survey,” which outlines the impact and sentiment of general counsel (GC) and chief legal officers (CLOs) around DEI.  Building on the ideals and values found in the GC Oath introduced by Simon Zinger in 2020 and endorsed by many leading global CLOs and legal organizations including ACC, this survey aims to provide an overview of how GC/CLOs around the world view DEI in the context of individual progress impacting DEI within their legal team, wider organizational progress, and progress made by law firms they work with on cultivating diverse teams. A few key results from the survey include:
  • GC are having greater success promoting DEI practices among their own teams, as opposed to being able to influence change across their wider organizations.
  • GC are experiencing only moderate support and success promoting DEI progress in overall organizations.
  • While the majority of GC currently do not request their law firms track advanced DEI KPIs, those that do observe significant headway in achieving DEI progress.
  • While the strongest level of participation came from GC based in the United States, the responses show a high degree of global input, suggesting DEI topics remain top of mind in many parts of the world.
“It is encouraging to see that general counsel and chief legal officers are generally finding success in promoting DEI practices within their own departments,” said Veta T. Richardson, president & CEO of ACC.  “Yet, despite the clear benefits and increased focus on DEI in recent years, that success doesn’t seem to be translating to organizations as a whole. While resources and bandwidth may differ, consistent and vocal leadership is critical to help move DEI practices forward regardless of an organization’s size or geography.  ACC values the opportunity to work with Simon Zinger to take the pulse of chief legal officers globally on such an increasingly important topic and we appreciate his work to highlight these issues on an international scale in the legal community and beyond.” “The impetus for launching this global survey was my desire to understand whether GC were making progress with their team and organizational commitments around DEI,” said Simon Zinger, GC of Entain plc, a FTSE-listed company. “Although many GC have identified with the General Counsel Oath, it felt important to ask GC around the world about their perceived levels of actual progress and to consider whether more could be done.  This survey suggests areas where there is still work to do and encourages GC to continue playing leadership roles in progressing DEI inside their organizations.” The GC DEI Survey was completed by 232 respondents spanning 28 countries around the world. Organizations interested in benchmarking their DEI programs are encouraged to complete the ACC Foundation DEI Maturity Assessment, powered by Ethisphere. This innovative resource offers the methodology to evaluate DEI progress along a continuum of early to more advanced stage efforts using the framework of the acclaimed ACC Foundation DEI Maturity Model to complete an online assessment module, which allows organizations to quickly and easily benchmark their DE&I efforts to those of their peers and receive back a written self-assessment generated by the module for the organization’s internal review. This tool is offered as a free service by ACC and Ethisphere for use by the entire legal and business communities. For more information about the GC DEI Survey (including a copy of the report), General Counsel Oath, or the ACC Foundation DEI Maturity Module and related DEI Maturity Assessment powered by Ethisphere, please contact Dan Weber at d.weber@acc.com.   About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organizations through information, education, networking, and advocacy. With more than 45,000 members in 85 countries employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on LinkedIn, Twitter, and Facebook

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The Year Ahead: Global Disputes Forecast 2023

What will the disputes landscape look like in the year ahead? Uncover the outlook in our sixth annual report,The Year Ahead: Global Disputes Forecast 2023. Featuring results from a survey of 600 senior lawyers at large companies around the world, our extensive global network unpacks survey findings and reviews the top disputes risks across key industry sectors and locations.

See full report and highlights.

Looking into 2023, we found that corporations expect more disputes this year, driven by economic uncertainty, global trade shifts, and altered business models. Disputes around cybersecurity and data and ESG are key risks, while tax and employment disputes remain a constant.

Finding the right support to address these key trends can help you to be prepared and manage these risks — anywhere in the world.

Coming Up: Key Issues Webinar Series

Join our global partners, Baker McKenzie for a series of webinars to discuss the report findings and uncover a practical actionable way forward in 2023. Click here to learn more.