Legal Risk Management Specialized Studies Certificate Program for UCI Extension, where she teaches for that program and the Contract Management Certificate Program. She has published articles on various business law matters, most recently for the National Contract Management Association’s Contract Management Magazine May 2015 issue, as well as for the National Center for State Courts and the Aerospace and Defense Forum. Every corporation and compliance practitioner faces a wide variety of risks. These include regulatory risks, legal risks, reputational risks, safety risks, environmental risks, and many other types of risks. We consider whether there is one process or approach to take to the over-arching concept of risk management or if the approach needs to be fined tuned by an organization. We discuss the Legal Risk Management Specialized Studies Certificate Program, including the program benefits and who should attend. We explore the approach to teaching risk management. We discuss some of her current initiatives on the study of and teaching of risk. In this episode, I discuss with Virginia Suveiu the theories of risk and the process of risk management.
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SEC Chair Clayton Talks Compliance Costs. Will the new administration gut SOX and Dodd-Frank compliance requirements?
Top Ten International Anti-Corruption Developments for May 2017. Our topics include:
- FCPA Assistant Chief BJ Stieglitz has been selected for detail to UK Financial Enforcement Authorities. We discuss how a prosecutor works overseas, what this might mean for prosecutions going forward in the US and UK, and the relationship of the DOJ with its British counterparts.
- The DOJ has moved to terminate its DPA over Hewlett-Packard. We discuss what it means to have a DPA terminated and the DOJ’s role in this phase. We also consider the decision-making process if a DPA has to be extended due to continued or new conduct by a company under such an agreement.
- Finally, we consider some of the difficulties of the DOJ’s Challenges in Obtaining Foreign Evidence through a recent ruling in the Civil Forfeiture Case. On May 9, 2017, In the case of United States v. Prevezon Holdings Ltd., Southern District of New York Judge William H. Pauley III ruled that certain evidence obtained by prosecutors from foreign sources was admissible in a civil asset forfeiture case, notwithstanding that the documents lacked the requisite certifications under the Federal Rules of Evidence. We consider the process for getting information from overseas; why it takes so long, and what happens if it does not meet US evidentiary or even admissibility standards?
Click here to see a full copy of the firm’s Top Ten International Anti-Corruption Developments publication for May 2017. James Koukios returns to discuss MoFo’s Top Ten International Anti-Corruption Developments for May 2017.
Cease and Desist Order also covered former employee Jeannot Lorenz, and the SEC spelled out a bribery scheme facilitated by both a failure and override of company internal controls. The matter involved Halliburton’s work in Angola with the national oil company Sonangol, which had a local content requirement. The nefarious acts giving rise to the FCPA violation involved a third-party agent for Halliburton’s contracts with the state-owned enterprise. According to the SEC Press Release, this matter initially began in 2008 when officials at Sonangol, Angola’s state oil company, informed Halliburton management it had to partner with more local Angolan-owned businesses to satisfy local content regulations. The company was successful in meeting the requirement for the 2008 contracting period. However, when a new round of oil company projects came up for bid in 2009, Sonangol indicated, “Halliburton needed to partner with more local Angolan-owned businesses to satisfy content requirements.” Halliburton’s prior work on local content was deemed insufficient, and “Sonangol remained extremely dissatisfied” with the company’s efforts. Sonangol backed up this dissatisfaction with a potential threat to veto further work by Halliburton for Sonangol. Under this backdrop, the local business team moved forward with a lengthy effort to retain a local Angolan company (Angolan agent) owned by a former Halliburton employee who was a friend and neighbor of the Sonangol official who would ultimately approve the award of the business to Halliburton. In each of these attempts, the company bumped up against its internal controls around third parties, both on the sales side and through the supply chain. The first attempt to hire the Angolan agent was as a third-party sales agent, which under Halliburton parlance is called a “commercial agent.” In this initial attempt, internal control was held as the business folks abandoned their efforts to contract with the Angolan agent. The first attempt to hire the Angolan agent was rejected because the local Business Development (BD) team wanted to pay a percentage fee based, in part, upon work previously secured under the 2008 contract and not new work going forward. Additional fees would be paid on new business secured under the 2009 contract. This payment scheme for the Angolan agent was rejected as the company generally paid commercial agents for work they helped obtain and not work secured in the past. Further, the company was not seeking to increase its commercial agents during this time frame (Halliburton had entered into a Deferred Prosecution Agreement (DPA) for FCPA violations in December 2008 for the actions of its subsidiary KBR in Nigeria). Finally, “As outlined by Halliburton’s legal department, to retain the local Angolan company as a commercial agent, it would be required to undergo a lengthy due diligence and review process that included retaining outside U.S. legal counsel experienced in FCPA compliance to conduct interviews. Halliburton’s in-house counsel noted that “[t] he is undoubtedly a tortuous, painful administrative process, but given our company’s recent US Department of Justice/SEC settlement, the board of directors has mandated this high level of review.” In other words, the internal controls held and were not circumvented or overoverriddene Angolan agent was then moved from commercial agent status to supplier so the approval process would be easier. The proposed reason for this switch in designations was that the Angolan agent would provide “real estate maintenance, travel, and ground transportation services” to the company in Angola. However, the internal controls process around using a supplier also had rigor as they required a competitive bidding process which would take several months to complete. Over-riding this internal control, the local business team could contract with the Angolan agent for these services in September 2009 and increase the contract price without the Angolan agent going through the internal procurement controls. A second internal control overridden was the procurement requirement that the supplier procurement process begins with “an assessment of the critically or risk of a material or services”; not with a particular supplier and certainly not without “competitive bids or providing an adequate single source justification.” However, as the Order noted, the process was taken backward, with the Angolan agent selected and then “backed into a list of services it could provide.” Finally, a separate internal control required “contracts over $10,000 in countries with a high risk of corruption, such as Angola, to be reviewed and approved by a Tender Review Committee.” Inexplicably this internal control was also circumvented or overoverriddent. This arrangement was not deemed sufficient local content by Sonangol officials. After all of this and further negotiations, Halliburton entered into another agreement with the Angolan agent, where the company would lease commercial and residential real estate and then sublease the properties back to Halliburton at a substantial markup and also provide real estate transaction management consulting services (the “Real Estate” contract). This Real Estate contract also had to go through an internal control process. Initially, there were questions the company about the Real Estate contract as a single source for the procurement function, the upfront payment terms to the Angolan agent, the high costs, and the rationale for entering into subleases for properties that would cost less if leased directly from the landlord. Indeed, “One Finance & Accounting reviewer at headquarters noted that he could not think of any legitimate reason to pay the local Angolan company over $13 million under the Real Estate Transaction Management Agreement and that it would not have cost that much to run Halliburton’s entire real estate department in Angola.” Halliburton’s internal controls required that it had to be justified when the company used a single source. This justification would require a showing of preference for quality, technical, execution, or other reasons, none of which were demonstrated by the Angolan agent. Finally, if such a single source was used, the reasons had to be documented in Halliburton’s internal controls language “identified and justified.” The company documented none. Finally, as the internal controls were either circumvented or over-ridden, “As a consequence, internal audit was kept in the dark about the transactions, and its late 2010 yearly review did not examine them.” This was yet another internal control failure built on the previous failures noted above. So how many internal controls failures can you spot? Whatever the number, the lesson for the compliance practitioner is that you must do more than have internal controls. They must be followed and be effective. If you are doing business in high-risk regions, you have to test the controls and back up your testing by seeing if payments are being made in those regions. Perhaps the best concept would be Reaganian, trust but verify.
Three Key Takeaways
- Internal controls must be shown to be effective.
- Circumvention and management override of internal controls must be documented to pass muster.
- Internal controls must be tested, and that testing must be verified with an independent source of investigation.
Internal controls must be tested and verified to demonstrate effectiveness. For more information on improving your internal controls management process, visit this month’s sponsor Workiva at workiva.com.
Financial Accounting Standards Board (FASB) issued Accounting Standards Update No. 2014-09, Revenue from Contracts with Customers (Topic 606) for public business entities, certain not-for-profit entities, and certain employee benefit plans. The amendments become effective for public entities for annual reporting periods beginning after December 15, 2017. In other words, we are now less than six months away from a new Revenue Recognition (“new rev rec”) standard, which may significantly impact the compliance profession, compliance programs, and compliance practitioners. Joe Howell, Executive Vice President (EVP) at Workiva Inc., spoke with me about key changes and how they might impact compliance. FASB recognized that its revenue recognition requirements around the U.S. generally accepted accounting principles (GAAP) differed from those in the International Financial Reporting Standards (IFRS) and that both sets of requirements needed improvement. This led to a project by FASB and the International Accounting Standards Board to jointly clarify the principles for recognizing revenue and to develop a common converged revenue standard for GAAP and IFRS. Hence the new rev rec standard. The implementation will be a massive undertaking. According to Howell, “The accounting standard is 700 pages long, and in the US accounting literature, it replaces over 200 other pieces of accounting guidance on revenue.” The official name is “Revenue from Contracts with Customers,” and Howell noted there are a “lot of surprises, and the things that are true for almost everybody is that they are going to be facing some level of change in the way they account and report revenue. They will most certainly have to change how they disclose their revenue-related things. Included in the revenue standards are over six pages worth of new disclosure requirements.” One of the key differences in this new rev rec standard is that it requires companies to disclose new information beyond data a company might have been required to release in the past. Howell thinks this will pressure auditors “to get comfortable with what the company provided them and which they incorporated into their decision-making process in forming an opinion. This is quite different for disclosure controls because the auditor’s typically not relying on those.” This will create risks for auditors adjusting to the new rev rec standard because as they learn more about it and apply it going forward into 2018, they may have to revisit it before reporting and revising some of it. This is important to the compliance profession and the compliance practitioner because internal controls over financial reporting involved in implementing this new standard are critical to the effective use of implementation and how you implement it. The Securities and Exchange Commission (SEC) has said explicitly in several public statements and through their early comment letters on disclosures made in advance of implementation that companies must inform the SEC about the accounting policies that they are changing and how this new standard will affect a company’s accounting processes, and finally how those effects are going to be managed. Howell believes “The SEC is making it clear that this is a real compliance issue.” Moreover, the SEC has indicated that these disclosures are central to the new rev rec standard. Howell said, “typically, if a company has some sort of failure in their disclosures for an accounting standard, they’re treated under section Sarbanes-Oxley (SOX) Section 302 of the SEC rules, and that has a level of significance or liability, which is much lower than the liability that a company might face under SOX Section 404, which has to do with the actual internal controls over financial reporting.” While disclosure of internal controls might not typically bring Section 404 scrutiny, they may now do so under the new rev rec standard. Howell articulated that when performing a financial audit, an auditor would usually not rely on a disclosure control in the past. However, under the new rev rec standard, if there is a change during the year in how an auditor views a disclosure control, it could require them “to go back and either figure out if the audit work that they did is tainted and they need to go back and do that work in the form of substantive testing, or they need to go back to see if there were mitigating controls that were in place that still allowed them to rely on the internal control processes to get comfortable with what the company provided them and which they incorporated into their decision-making process in forming an opinion. This is quite different for disclosure control because the auditor’s typically not relying on those.” Of course, this is overlaid with the requirements of effective internal controls under the Foreign Corrupt Practices Act (FCPA) and the lack of materiality standards. One only need to consider the Wells Fargo fraudulent accounts scandal to see how a lack of materiality does not prevent the types of risk from moving forward to become huge public relations disasters, hundreds of millions of dollars in fines and costs estimated at over $1bn for failures of internal controls. Yet there are other tie-ins into compliance that the compliance practitioner needs to understand and prepare for going forward. The prior rev rec standard was rules-based. As a lawyer, that was an approach I was quite comfortable with both from a learning standpoint and communicating with business folks. But now, the standard is much more judgment-based, and when a standard is more judgment based, there can be more room for manipulation. Howell explained the response by compliance is “making sure that you have changes in the business processes necessary to gather the information that has not previously been required to continue to monitor; how that information is factoring into the judgments that managers must make as they report their revenue under the new standard; and that those judgments themselves are properly documented.” This final point demonstrates the convergence and overlap between the compliance profession, compliance programs, and compliance practitioners going forward. Compliance internal controls are in place to both detect and prevent. They can also be used to gather the information that will be presented to auditors under the new rev rec standard. Many professionals are focused on the new rev rec from the auditing and implementation perspective. However, suppose you are a Chief Compliance Officer (CCO). In that case, you might want to go down the hall and have a cup of coffee with your Chief Financial Officer (CFO) and find out what internal controls might be changing or that they might be adding and consider how that will impact compliance in your organization.
Three Key Takeaways
- We are less than six months away from a new revenue recognition standard. Are you ready?
- This new revenue recognition standard is much more judgment-based; when a standard is more judgment-based, there can be more room for manipulation.
- Compliance internal controls can now gather the information presented to auditors under the new rev rec standard.
For more information on improving your internal controls management process, visit this month’s sponsor Workiva at workiva.com.
Internal Controls – Integrated Framework, Illustrative Tools for Assessing Effectiveness of a System of Internal Controls” (herein ‘the Illustrative Guide’), COSO laid out its views on “how to assess the effectiveness of its internal controls.” It went on to note, “An effective system of internal controls provides reasonable assurance of achievement of the entity’s objectives, relating to operations, reporting, and compliance.” Moreover, two over-arching requirements can only be met through such a structured post. First, each of the five components is present and functioning. Second, are the five components “operating together in an integrated approach.” One of the most critical components of the COSO Framework is that it sets internal control standards against those you can audit to assess the strength of your compliance with internal control. As the COSO 2013 Framework is designed to apply to a wider variety of corporate entities, your audit should be designed to test your internal controls. If you have a multi-country or business unit organization, you must determine how your internal compliance controls are interrelated up and down the organization. The Illustrative Guide also realizes that smaller companies may have less formal structures in place throughout the organization. Your auditing can and should reflect this business reality. Finally, if your company relies heavily on technology for your compliance function, you can leverage that technology to “support the ongoing assessment and evaluation” program going forward. The Illustrative Guide suggests using a four-pronged approach in your assessment. (1) Make an overall assessment of your company’s system of internal controls. This should include an analysis of “whether each of the components and relevant principles is present and functioning and the components are operating together in an integrated manner.” (2). There should be a component evaluation. Here you need to evaluate any deficiencies you may have more deeply and whether there are any compensating internal controls. (3) Assess whether each principle is present and functioning. As the COSO 2013 Framework does not prescribe “specific controls that must be selected, developed and deployed,” your task here is to look at the main characteristics of each principle, as further defined in the points of focus, and then determine if a deficiency exists and it so what is the severity of the deficiency. (4) Finally, you should summarize all your internal control deficiencies in a log, so they are addressed on a structured basis. Another way to think through the approach could be to consider “the controls to effect the principle” and would allow internal control deficiencies to be “identified along with an initial severity determination.” A Component Evaluation would “roll up the results of the component’s principal evaluations” and would allow a re-evaluation of the severity of any deficiency in the context of compensating controls. Lastly, an overall Effectiveness Assessment would examine whether the controls were “operating together in an integrated manner by evaluating any internal control deficiencies aggregate to a major deficiency.” This process would then lend itself to an ongoing evaluation. If business models, laws, regulations, or other situations changed, you could assess if your internal controls were up to the new situations or needed adjustment. The Illustrative Guide spent a fair amount of time discussing deficiencies. Initially, it defined ‘internal control deficiency’ as a “shortcoming in a component or components and relevant principle(s) that reduces the likelihood of an entity achieving its objectives.” It defined‘ major deficiency’ as an “internal control deficiency or combination of deficiencies that severely reduces the likelihood that an entity can achieve its objectives.” A major deficiency is a significant issue because “When a major deficiency exists, the organization cannot conclude that it has met the requirements for an effective internal control system.” Moreover, unlike deficiencies, “a major deficiency in one component cannot be mitigated to an acceptable level by the presence and functioning of another component.” Under a compliance regime, you may be faced with known or relevant criteria to classify any deficiency. For example, if written policies do not have, at a minimum, the categories of policies laid out in the FCPA 2012 Guidance, which states “the nature and extent of transactions with foreign governments, including payments to foreign officials; use of third parties; gifts, travel, and entertainment expenses; charitable and political donations; and facilitating and expediting payments,” also formulated in the Illustrative Guide, such a finding would preclude management from “concluding that the entity has met the requirements for effective internal controls by the Framework.” However, what steps should you take if there are no objective criteria, as laid out in the FCPA 2012 Guidance, evaluate your company’s compliance with internal controls? The Illustrative Guide says that a business’ senior management, with appropriate board oversight, “may establish objective criteria for evaluating internal control deficiencies and for how deficiencies should be reported to those responsible for achieving those objectives.” Together with appropriate auditing boundaries set by either established law, regulation, or standard, or through management exercising its judgment, you can then make a full determination of “whether each of the components and relevant principles is present and functioning and components are operating together, and ultimately in concluding on the effectiveness of the entity’s system of internal control.” The Illustrative Guide has a useful set of templates that can serve as the basis for your reporting results. They are specifically designed to “support an assessment of the effectiveness of a system of internal control and help document such an assessment.” The Document, Document, and Document feature are critical in any best practices anti-corruption or anti-bribery compliance program, whether based upon the FCPA, UK Bribery Act, or some other regulation. With the Illustrative Guide, COSO has given the compliance practitioner a handy road map to begin an analysis of your company’s internal compliance controls. When the SEC comes knocking, they will look for this type of evidence to evaluate if your company has met its obligations under the FCPA’s internal controls provisions. First are some general definitions that you need to consider in your evaluation. An internal compliance control must be both present and functioning. A control is present if the “components and relevant principles exist in the design and implementation of the system of [compliance] internal control to achieve the specified objective.” An internal compliance control functions if the “components and relevant principles continue to exist in the conduct of the system of [compliance] internal controls to achieve specified objectives.”
Three Key Takeaways:
- An effective internal controls system provides reasonable assurance of the entity’s objectives relating to operations, reporting, and compliance.
- There are two over-arching requirements for effective internal controls. First, each of the five components is present and functional. Second are the five components operating together in an integrated approach.
- You can use the Tem Hallmarks of an Effective Compliance Program for an anti-corruption compliance program as your guide to testing against.
For more information on improving your internal controls management process, visit this month’s sponsor Workiva at workiva.com. The COSO model can be used to structure your assessment of internal controls.
Show Notes for Everything Compliance-Episode 14
Topics from Matt:
- Trump Administration & FCPA enforcement— we have two declinations now; maybe a compare-and-contrast and speculation on what a tough Trump Admin enforcement WOULD look like;
- EU’s GDPR— Do EU regulators know what they want to do with the enforcement of this law; if they follow the lead of the anti-competition people whacking Google, it could be a big deal;
- Hui Chen’s departure from the Justice Department, both her public rebuke of Trump and the substance of how she believes her guidance has been misinterpreted; and
- Ethical leadership and the lack thereof; the menace of abusing perks and privilege, connecting my posts about Uber’s leaders and Chris Christie vacationing on a closed beach.
Topics from Jay:
- How do the Campaign Finance Laws mirror/or differ from the FCPA?
- Will the Russian Collusion Investigation reveal the ultimate FCPA violation?
- Regarding Walter Shaub’s departure from the Office of Governmental Ethics (OGE), does it matter? What is OGE supposed to do, and why did it work for the past 40+ years but fall on deaf ears with the Trump administration?
- Dovetailing with Matt’s question about a slow H1 for FCPA enforcement and in light of the just-released Gibson Dunn FCPA Mid-Year Report, does the current climate (and lack of vigorous enforcement) provide a perfect storm for companies to look the other way if they fall off the E&C wagon, or do we think that companies are still being vigilant despite a perception of decreased enforcement?
Rants follow this week’s episode. What do the two declinations in 2017 mean? The Everything Compliance panel of experts weighs in.
Monitoring Activities. The Framework Volume says, “Ongoing evaluations, separate evaluations, or some combination of the two are used to ascertain whether each of the five components of internal control, including controls to effect the principles within each component, is present and functioning. Ongoing evaluations, built into business processes at different entity levels, provide timely information. Separate evaluations, conducted periodically, will vary in scope and frequency depending on the assessment of risks, effectiveness of ongoing evaluations, and other management considerations. Findings are evaluated against criteria established by regulators, recognized standard-setting bodies or management, and the board of directors. Deficiencies are communicated to management and the board of directors as appropriate.” However, as with all other components of the COSO Cube, Monitoring Activities are part of an inter-related whole and cannot be taken singularly. Rittenberg states this objective “applies to all five components of internal control. The nature of monitoring should fit the organization, its dependence on IT, and the effectiveness of monitoring providing relevant feedback on the other components, including the effectiveness of control activities.” For the CCO or compliance practitioner, Monitoring Activities have been growing in importance over the past few years and will continue to do so in the future. The Five Principles of an Effective Compliance Program, Principle 5, includes ongoing monitoring, reinforced in the 2013 COSO Framework. In an article in Corporate Compliance Insights (CCI), entitled “Implementing COSO’s 2013 Framework: 10 Questions that Need to be Answered”, Ron Kral explained that it is essential to “ensure that adequate controls are ‘present’ in support of all relevant principles and the components before launching into efforts to prove that the controls are “functioning.” Remember that all relevant principles must be present and functioning for a company to conclude that its ICFR is effective safely. Aligning the design of controls to the 17 principles to see any gaps early in the implementation process will help ensure adequate time to remediate and test for operating effectiveness.” The same is equally, if not more so, true for your company’s compliance function.
I. Objective-Monitoring Activities The Monitoring Activities objective consists of two principles. They are: Principle 16 – “The organization selects, develops and performs ongoing and/or separate evaluations to ascertain whether the components of internal control are present and functioning.” Principle 17 – “The organization evaluates and communicates internal control deficiencies timely to those parties responsible for taking corrective action, including senior management and the board of directors, as appropriate.”
Principle 16 – Ongoing Evaluation
Rittenberg stresses that this Principle requires that “Monitoring should include ongoing or ‘continuous monitoring’ whenever such monitoring is reliable, timely and cost-effective.” The reason is simple; they are complementary tools to test the effectiveness of your compliance regime. The same is true of internal controls. But this Principle expects your organization to oversee, monitor, and audit. For the CCO or compliance practitioner, you will need to consider several different areas and concepts going forward. A current risk assessment or other evaluation of business changes should be based on some baseline understanding of your underlying compliance risk. Whatever you select will need to be integrated with your ongoing business processes, adjusted as appropriate through ongoing risk assessments, and objectively evaluated.
Principle 17 – Evaluation And Communication Of Deficiencies
This final Principle speaks to deficiencies and their correction. Rittenberg notes it requires a determination of what might constitute a deficiency in your internal control, who in your company is responsible for “taking corrective action and whether there is evidence that the corrective action was taken.” If that does not sound like McNulty Maxim No. 3, What did you do when you found out about it? I do not know what it does. Therefore, under this Principle, the CCO will need to take timely and determined action to correct any deficiencies which might appear in your compliance regime. It will require you to assess results, communicate the weaknesses up the chain to the board or Compliance Committee, correct and then monitor the corrective action going forward. Adapting Kral, I urge that every key internal compliance control in support of the 17 Principles should “conclude upon by management in terms of their adequacy of design and operating efficiency.”
II. Discussion Monitoring Activities should bring together your entire compliance program and give you a sense of whether it is running correctly. Both ongoing monitoring and auditing are tools the CCO and compliance practitioner should use to support this objective. Near the end of his section on this objective, Rittenberg states, “Monitoring is a key component of the internal control framework because effective monitoring (a) recognizes the dynamics of change within an organization, and (b) provides the basis for corrective action on a timely basis.” I would add that it also allows you to evaluate the effectiveness of that corrective action. The most important thing is that all the controls need to be sustainable. You cannot just build one-off controls that allow you to do one period and not have a process in place that will help you through all the periods you need to cover. The controls cannot just be a one-and-done. Many companies will find that their initial approach is one-and-done. There must also be a mechanism for communicating controls that do not work or can be overridden. From there, you must be able to remediate your controls going forward. This will align with the compliance professional’s requirement to prevent, detect, and remediate.
Three Key Takeaways:
- Monitoring activities are interrelated with all other Principles and cannot be taken singularly.
- Monitoring activities helps to ensure that all controls are present and functioning.
- Monitoring Activities should bring together your entire compliance program and give you a sense of whether it is running correctly.
For more information on improving your internal controls management process, visit this month’s sponsor Workiva at workiva.com. Ongoing monitoring of your internal controls helps to endure they are sustainable and not overridden.
HSBC v. Moore
In this case, a federal district court had ordered the release of a redacted monitor’s report in the HSBC money-laundering Deferred Prosecution Agreement (DPA) based upon the request of an interested citizen. Both the Department of Justice (DOJ) and HSBC appealed the order, and the Court of Appeals supported their position in overturning the trial court’s decision. The case is about a hook, line, and sinker overturning of any trial court jurisdiction one can have. The district court tried to claim it did not have the same role as a “potted plant,” but the Court of Appeals left no doubt that is the only role it sees for any district court where a DPA is filed. We discuss the implications for the compliance practitioner, FCPA enforcement, and potential future changes. Are district court’s simply potted plants when it comes to DPA oversight?
Integrated Framework (Framework Volume) recognizes that “every entity faces a variety of risks from external and internal sources.” This objective is designed to provide a company with a “dynamic and iterative process for identifying and assessing risks.” For the compliance practitioner, none of this will sound new or even insightful; however, the COSO Framework requires a component of management input and oversight that was not as well understood. The Framework Volume says, “Management specifies objectives within the category relating to operations, reporting, and compliance with such clarity to identify and analyze risks to those objectives.” But management’s role continues throughout the process as it must consider internal and external changes that can affect or change risk “that may render internal controls ineffective.” This final requirement is also important for any anti-corruption compliance internal control. Changes are coming quite quickly in anti-corruption laws and their enforcement. Management needs to be cognizant of these changes and changes that its business model may make in the delivery of goods or services, which could increase the risk of running afoul of these laws.
Objective-Risk Assessments
The objective of Risk Assessment consists of four principles. They are: Principle 6 – “The organization specifies objectives with sufficient clarity to enable the identification and assessment of risks relating to the objectives.” Principle 7 – “The organization identifies risks to the achievement of its objectives across the entity and analyzes risks as a basis for determining how the risks should be managed.” Principle 8 – “The organization considers the potential for fraud in assessing risks to the achievement of objectives.” Principle 9 – “The organization identifies and assesses changes that could significantly impact the internal control system.”
Principle 6 – Suitable Objectives
Your risk analysis should always relate to stated objectives. As noted in the Framework Volume, management is responsible for setting the objectives. Rittenberg explained, “Too often, an organization starts with a list of risks instead of considering what objectives are threatened by the risk, and then what control activities or other actions it needs to take.” In other words, your objectives should form the basis for your risk assessments.
Principle 7 – Identifies And Analyzes Risk
Risk identification should be an ongoing process. While it should begin at senior management, Rittenberg believes that even though a risk assessment may originate at the top of an organization or even in an operating function, “the key is that an overall process exists to determine how risks are identified and managed across the entity.” You need to avoid siloed risks at all costs. The Framework Volume cautions that “Risk identification must be comprehensive.”
Principle 8 – Fraud Risk
Every compliance practitioner should understand that fraud exists in every organization. Moreover, the monies that must be generated to pay bribes can come from what may be characterized as traditional fraud schemes, such as employee expense account fraud, fraudulent third-party contracting and payments, and even fraudulent over-charging and pocketing of the differences in sales price. This means that it should be considered an important risk analysis. Any company must follow the flow of money, and if the Fraud Triangle is present, management is placed around such risk.
Principle 9 – Identifies And Analyzes Significant Change
It is true that if there is one constant in business, there will always be change. The Framework Volume states, “every entity will require a process to identify and assess those internal and external factors that significantly affect its ability to achieve its objectives.” Rittenberg intones that companies “should have a formal process to identify significant changes, both internal and external and promptly assess the risks and approaches to mitigate the risk.”
Discussion
The SEC has clarified that companies should be expanding their view of risk in implementing the COSO 2013 Framework. Risk assessments are a cornerstone of a best practices compliance program as laid out in the 2012 FCPA Guidance and in the DOJ’s Evaluation of Corporate Compliance Programs, issued in February 2017. The regulators are telling companies specifically that they should see new risks that they need to address because of the changes brought about by the new standard. Howell noted that “in the internal control arena, fraud risk, in particular, has been keen interest because of the opportunity to mask fraud through the judgments made in recognizing revenue, no matter what the revenue recognition standard.” He went on to add other risks that companies should be considering in their risk assessments; “One risk is a company’s business practices do not relate to the accounting that they are providing right now because the business practices are changing and internally the company is not recognizing that the business practices are changing.”
Another example is that sales folks give concessions to customers that are not reflected in their understanding of the contract and its accounting.” Howell went on to add might be other activities that are going on to acquire contracts that aren’t being properly accounted for or even recognized at some level that the concessions are being given at the backend for return that isn’t being reported back into how that affects the estimate of cheap revenue going forward. Finally, risks that a company has misstated or underestimated require determining whether revenue should be recognized over time or estimated what that period is to recognize the revenue if it is a rolling time frame. Howell stated, “For example, the period could be longer, which means that your revenue would be recognized over a longer period. There’s always the risk that revenue could be recognized too early and that cost could be pushed out and spread over too long. As we begin to think about these new judgments that are required, we get into this entirely new level of judgment and risk related to the judgment that the companies need to identify and build both preventative controls and detective controls and have the plan to respond if they discover that the risk has happened and they have a failure.”
Three Key Takeaways:
- Risk assessments are required under the COSO Framework, the 2012 FCPA Guidance, and almost all other best practices compliance programs.
- Look at your risks across your organization rather than in a siloed manner.
- Risks, determination, and management change over time, so be cognizant of changes in business practices on the ground.
For more information on improving your internal controls management process, visit this month’s sponsor Workiva at workiva.com. Risk assessments are required under the COSO Framework, the 2012 FCPA Guidance, and all other compliance regimes.
