Conflict of Interest Blog

Behavioral ethics, the board and C&E officers

In Conflicts and Biases in the Boardroom, recently posted on the Harvard Law School Forum on Corporate Governance and Financial Regulation, Frank Glassner, of Veritas identifies five ways that cognitive bias can inhibit great governance:

– A board is reluctant to ask the right questions

– The group is unable to fully and effectively involve new board members

– Excessive deference is afforded to a few board members with a long company history

– Peer pressure and conformance minimize constructive dissent

– Inflexible adherence to tradition limits consideration of new initiatives.

He further writes: “Every board member must acknowledge that implicit biases impact his/her objectivity.”

Not surprisingly (given the focus of the COI Blog), I agree with this. But I also wonder if there is a place for the compliance  and ethics officer in helping to address this daunting area.

In an earlier post  I wrote: Ultimately, for a company to have not only a strong compliance program but also an ethics one, the CEO and other leaders would empower the C&E officer to identify and challenge decisions that may be based on bias. (Note that I don’t mean literally all such decisions, but those that are significant in potential impact and have a meaningful ethics/fairness dimension.) The leaders would do so because they would understand that being fair is not just a matter of good intentions; rather, it can also require expertise and effort – both of which the C&E officer can bring to a challenging set of circumstances.

Here is another prior post addressing the issue:  Behavioral ethics and compliance: what the board should ask..

Finally, here is an index of  behavioral ethics and compliance posts generally.

 

 

Strengthening your C&E program through behavioral ethics

A new post in the FCPA Blog.

I hope you find it useful.

More on conflicts of interest disclosure

“Culture trumps compliance,” the old saying goes. But it still worth being reminded of it, particularly in the conflict of interest area, where the effect of culture may be less manifest than it is for various other types of misconduct (like harassment).

The latest contribution to this body of knowledge is Conflict of Interest Disclosure as a Reminder of Professional Norms: Clients First! by Dr Sunita Sah of Cornell’s business school, to be published in Organizational Behavior and Human Decision Processes. Sah writes:

“Disclosure is a popular solution for managing conflicts of interest (COIs) across a variety of industries and professions. The present work documents how perceived professional norms may influence advisors’ reactions to COI disclosure. In a series of laboratory and framed field experiments, five with monetary stakes, I demonstrate that disclosure can have differing effects on advisors who have a COI. These studies provide evidence that COI disclosure increases the salience of the perceived professional norm (‘clients first’  or ‘self-interest first’) and, correspondingly, the level of bias in advice. I show that in both the medical and financial context COI disclosure can significantly improve the advice quality of professional advisors who have norms to place clients first.” (Note: that a prior post discussed  the other side of the coin: Sah’s research on how disclosure of COIs can in some instances  exacerbate conflicted actions by those making the disclosure.) As stated  by Sah, “If self-interest first norms are prevalent, then the findings in this paper suggest that steps to change the perceived norms may be useful or even necessary as a precursor to implementing disclosure.”

Of course, most companies can’t delay implementing COI disclosure requirements. But, this research may help underscore for decision makers that disclosure alone is not enough, and that they may need to assess and possibly enhance the COI-related aspects of their culture.

Expanding Compliance Liability for Directors?

A post a few weeks ago discussed the issuance of an important recent judicial decision in Delaware regarding board liability for compliance failures, and specifically the fact that the claim against the directors had survived a motion to dismiss.  Given how few decisions  support claims such as this – what are generally called Caremark cases – it is worth noting that  a second such decision  has been issued only a few weeks later.

As noted in a post this week in the Harvard Law School corporate governance blog by attorneys from the Wachtell Lipton law firm:  Further extending the practical reach of the Caremark doctrine, the Delaware Court of Chancery this week upheld claims against directors of a life sciences firm for failing to ensure accurate reporting of drug trial results. In re Clovis Oncology, Inc. Derivative Litig., C.A. No. 2017-0222-JRS (Del. Ch. Oct. 1, 2019)…. The Clovis directors argued, and the court accepted, that duty-to-monitor claims require a showing of scienter—that is, evidence that the directors knew they were violating their duties. But the court did not require the plaintiff to allege particular facts showing such knowledge. Instead, reasoning that Clovis had a board “comprised of experts” and “operates in a highly regulated industry,” the court concluded that the directors “should have understood” the problem and intervened to fix….Clovis thus highlights the widening risk to boards of directors of fiduciary litigation when bad news can be tied to an alleged compliance failure. …A compliance program is no longer enough. Courts now look for engaged board oversight, and directors should consider implementing procedures to ensure that the board itself monitors “mission critical” corporate risks.

Of course, while such procedures are themselves important, equally key is having a boardroom culture that encourages robust monitoring of compliance risks. For this reason (as well as others) board members should have strong relationships with their respective companies’ chief compliance officers, as CCOs  can – by word and deed – help develop and maintain a culture that is up to this task.

 

The big compliance news of 2019

In my latest column in Compliance & Ethics Professional I discuss the Department of Justice’s new policy of rewarding antitrust compliance programs.

I hope you find it interesting.

CECO reporting relationships

Here is a just-published article from Compliance Week on compliance & ethics officer reporting relationships.

I hope you find it useful.

Come to the Advanced Compliance & Ethics Workshop

I am honored to have been selected to chair the Practising Law Institute’s Advanced Compliance & Ethics Workshop in NYC on October 28 and 29.

Information about program topics and our stellar faculty is available here.

I hope to see you then and there.

Conflicts of interest: why we fight

The current attention to President Trump’s using his official position to bring business to his properties – discussed here – has drawn national (and even global) focus on the area of conflicts of interest. It is thus an opportune time for the COI Blog to review some basic principles.

First, as Justice Louis Brandeis famously said: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” While Brandeis was speaking about violations of law the point seems just as applicable to ethics.

Second, and as one would expect, the impact of COIs can go beyond the economic value of the transaction at issue. How much does it matter that organizations, individuals and governments pay close attention to identifying and mitigating conflicts of interest? One way to answer this question is to consider – as I used to ask students in my business school ethics class to do – what the world would look like without such focus and sensitivity. Below are some of the observations that I have heard from them over the years:

– Individuals might be reluctant to take the medicines that their doctors recommend for fear that those recommendations are motivated more by the doctors’ financial relationships with pharma companies than by the patients’ well-being.

– Individuals and organizations might not use financial advisors for fear that the advice they receive is driven by hidden, adverse interests – and would instead devote otherwise productive time to trying to become their own financial experts, resulting in a significant misallocation of capital as well as time.

– Organizations could hesitate to take a wide range of everyday actions for which they need to trust their employees and agents to do what’s right by the organizations – or would proceed only with highly intrusive and costly surveillance-like measures in place.

In short, Conflict of Interest World is a place of needlessly diminished lives, resources and opportunities.

Finally, and returning to the issue of Trump’s COIs, the negative impact of presidential impunity regarding COIs is particularly worrisome in a way that is unique in our history.  In the coming years we will be compelled to make sacrifices to address increasingly urgent needs regarding climate change and public debt. If government’s motives on these and other critical issues are subject to question due to COI’s then the (already small, in my view) likelihood of sufficient sacrifice being made is further diminished, with potentially catastrophic consequences for our country and planet. (For more on the link between morality-based sacrifice and the success of human societies see Jonathan Haidt’s The Righteous Mind.)

See you at SCCE?

Later this month I’ll be speaking at the SCCE  18th annual Compliance & Ethics Institute in National Harbor Maryland.  I’ll be presenting in sessions on 100 + Years of Business Ethics: Learn About the Future from Masters of the Profession (together with my long-time colleagues Steve Priest, Carrie Penman and Ed Petry – Sunday morning, session P7) and on Leverage Legal Developments to Advance Your Program (together with my law partner Rebecca Walker – Tuesday afternoon, session 705).

Readers of the COI Blog attending the conference  are encouraged to use the occasion to say hello.

Free webinar on risk assessment

On September 11 at 1 Eastern I’ll be presenting a free webinar  on best practices in compliance and ethics risk assessment. The webinar is  sponsored by Syntrio  and my co-presenter will be  Jason Lunday. He and I hope you can attend.