With the start of a new year, we instinctively look back to review developments of the year behind us
and forward to make predictions (and perhaps
resolutions) for the year ahead. With respect to
those predictions, however, we would likely do
well to recall an old saying, frequently
attributed to Mark Twain, that “it is
difficult to make predictions, especially
about the future.” Difficult and, when
the predictions are in writing in a
professional journal, perhaps a bit
perilous. But given that one of my
resolutions for 2018 is to take a few
more risks (a tough task for a naturally
risk-averse compliance lawyer), what follows are
some prognostications about likely compliance
developments and concerns in the year ahead.
Those of us who have been in the
compliance and ethics (C&E) field for a while
can attest that the field was—in the old days
of the ‘90s and early 2000s—somewhat sleepy,
with significant developments relatively few
and far between. In more recent years, this
sleepy profession has become quite vibrant,
with government pronouncements (from
governments all over the world), new standards,
and new developments occurring increasingly
frequently. For example, in February of 2017,
the Fraud Section of the Department of Justice
released a set of questions regarding compliance
and ethics programs,1 which provide detailed
guidance regarding criteria the government
may utilize in evaluating a compliance program.
And in November, the Justice Department
announced a Foreign Corrupt Practices
Act (FCPA) Corporate Enforcement Policy,2
which similarly contains guidance regarding
government evaluations of programs. We also
witnessed numerous important developments
outside the United States, including a number
of enforcement agencies publicizing their intent
to consider programs in enforcement actions.
There was an increased focus on metrics in
the field, numerous developments in the areas
of data privacy and anti-corruption, and—on
and concerns for 2018
by Rebecca Walker
» In 2017, we saw a number of important developments in the field of compliance and ethics, including on the
international stage and in the US.
» A number of countries have adopted or begun the process of adopting deferred prosecution agreement schemes in the
past few years—a trend that is likely to continue in 2018 and beyond.
» One of the more salient aspects of recent guidance from the US Department of Justice is the increased focus on the
authority of the Chief Ethics and Compliance Officer and the C&E function.
» The recent sexual harassment scandals and leadership failures seem likely to lead to increased focus on how C&E can
best foster appropriate behavior in organizational leaders.
» These scandals and failures will likely lead to renewed focus on cultivating speak‑up cultures, improving non‑
retaliation policies, and creating an anti‑harassment and anti‑bullying culture in organizations.