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117 to them. ... Corporate officers and directors hold the ultimate power and responsibility for restoring public trust by conducting themselves in a manner that is worthy of the trust that is placed in them.” Cynthia Glassman, SEC Implementation of Sarbanes- Oxley: ‘The New Corporate Governance, Remarks at National Economists Club (April B, 2003), available at http://www.sec.gov/news/speech/spch040703cag.htm j 3! Indeed, research has found that “[e]thical culture is the single biggest factor determining the amount of misconduct that will take place ina business.” ETH1cs RESOURCE CENTER, 2009 NATIONAL BUSINESS Eruics SuRvEY: ETHICS IN THE RECESSION (2009), at 41. Metrics of ethical culture include ethical leadership (tone at the top), supervisor reinforcement of ethical behavior (middle management reinforcement), and peer commitment (supporting one another in doing the right thing). ErHics REsouRCE CENTER, 2011 NATIONAL BUSINESS Eruics SuRVEY: WORKPLACE ETHICS IN TRANSITION (2012) at 19. Strong ethical cultures and strong ethics and compliance programs are related, as data show that a well-implemented program helps lead toa strong ethical culture. fd. at 34. “Understanding the nature of any gap between the desired culture and the actual culture is a critical first step in determining the nature of any ethics-based risks inside the organization.” David Gebler, The Role of Culture at 1.7, in SOCIETY OF CORPORATE COMPLIANCE AND ETHIcs, THE COMPLETE COMPLIANCE AND ETuHics MANvAL (2011). To create an ethical culture, attention must be paid to norms at all levels of an organization, including the “tone at the top,” “mood in the middle? and “buzz at the bottom.” Jd. 1.9-1.10. 313 See, e.g., U.S. SENTENCING GUIDELINES § 8B2.1(2)(B)-(C) (2011). 314 Td. 315 7. 316 Td. 31” See, e.g, ETHICS AND COMPLIANCE OFFICER ASSOCIATION FOUNDATION, THE ETHICS AND COMPLIANCE HANDBOOK: A PRACTICAL GUIDE FROM LEADING ORGANIZATIONS (2008) at 13-26 [hereinafter THE ErH1cs AND COMPLIANCE HaNDBOOK]. 318 See U.S. SENTENCING GUIDELINES § 8B2.1(b)(4) (2011). 319 See U.S. SENTENCING GUIDELINES § 8B2.1(b)(6) (2011) (“The organization’s compliance and ethics program shall be promoted and enforced consistently throughout the organization through (A) appropriate incentives to perform in accordance with the compliance and ethics program; and (B) appropriate disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct.”). 3° See, e.g, JOSEPH E. MURPHY, SOCIETY OF CORP. COMPLIANCE AND Eruics, Us1inc INCENTIVES IN YOUR COMPLIANCE AND ETHICS ProcGram (2011) at 1; THe ErHics AND COMPLIANCE HANDBOOK, supra note 317, at 111-23. 321 Stephen M. Cutler, Director, Division of Enforcement, SEC, Jone at the Top: Getting It Right, Second Annual General Counsel Roundtable (Dec. 3, 2004), available at http ://www.sec.gov/news/speech/ spch120304smc.htm. 3%? See, e.g. ICC RULES ON COMBATING CORRUPTION, supra note 309, at 8. 323 See, e.g. US. SENTENCING GUIDELINES § 8B2.1(b)(5)(C); COMPLIANCE 101, supra note 302, at 30-33. ou Corporate Board Member/FTI Consulting 2009 Legal Study, Buckle Up. Boards and General Counsel May Face a Bumpy Ride in 2009, at 5 (“Interestingly, while 67% of general counsel say their company is subject to compliance under the FCPA, 64% of those say there is room for improvement in their FCPA training and compliance programs.”). 35 See U.S. SENTENCING GUIDELINES § 8B2.1(b)(5)(B) (“The organization shall take reasonable steps... to evaluate periodically the effectiveness of the organization's compliance and ethics program.”). 36 See, e.g, COMPLIANCE 101, supra note 302, at 60-61; THE ETHICS AND COMPLIANCE HANDBOOK, supra note 317, at 155-60; BUSINESS PRINCIPLES FOR COUNTERING BRIBERY, supra note 309, at 14, 327 See, CL Michael M. Mannix and David S. Black., Compliance Issues in M&A: Performing Diligence on the Target’ Ethics and Compliance Program at 5.71-5.81, in SOCIETY OF CORPORATE COMPLIANCE AND Eruics, THE COMPLETE COMPLIANCE AND ETHICS MANUAL (2011). 328 Complaint, SEC v. Syncor International Corp., supra note 190; Criminal Information, United States v. Syncor Taiwan, Inc., supra note 189. US, DEPT. OF JUSTICE, FCPA Op. RELEASE 08-02 (June 13, 2008), available at http ://justice.gov/criminal/fraud/fepa/opinion/2008/0802. pde. 330) Complaint, SEC v. Rae Sys., Inc., supra note 92; Non-Pros. Agreement, Inve Rae Sys. Inc., supra note 92. 331US. DEPT. OF COMMERCE, BusINEss ETHIcs: A MANUAL FOR MANAGING A RESPONSIBLE BUSINESS ENTERPRISE IN EMERGING Market Economies (2004), available at http://www.ita.doc.gov/ goodgovernance/, adobe/ bem_manual.pdf. 332US. DEPT. OF STATE, FIGHTING GLOBAL CORRUPTION: BUSINESS Risk MANAGEMENT (2d ed. 2001), available at http://www.oge.doc. gov/ pdts/ Fighting Global_Corruption.pdf. 333 See HARMONISING ANTI-CORRUPTION COMPLIANCE, supra note 302, at 46 (‘Anti-corruption compliance is becoming more and more harmonised worldwide.”). 34 OECD Goon PRACTICE GUIDANCE, supra note 309. 335 APEC ANTI-CORRUPTION CODE, supra note 309. 3°1CC RULES ON COMBATING CORRUPTION, supra note 309. 57 BUSINESS PRINCIPLES FOR COUNTERING BRIBERY, supra note 309. °8'THE TEN PRINCIPLES, supra note 309. 38° INTEGRITY COMPLIANCE GUIDELINES, supra note 309. ¥© PaRTNERING AGAINST CORRUPTION, supra note 309. 4115 US.C. §§ 78dd-2(g)(1)(A), 78dd-3(e)(1)(A), 78ff(c)(1)(A). #15 US.C. §§ 78dd-2(g)(2)(A), 78dd-3(e)(2)(A), 78ff(c)(2)(A). 43.15 US.C. § 78f{a). #415 US.C. § 78ff(a). 5518 US.C.§ 357 1(d); see Southern Union v. United States, 132 S. Ct. 2344, 2350-51 & n4 (2012). #615 USC. §§ 78dd-2(g) (3), 78dd-3(e)(3), 78 fic) (3). *? The US. Sentencing Guidelines are promulgated by the US. Sentencing Commission: The United States Sentencing Commission (“Commission”) is an independent agency in the judicial branch composed. of seven voting and two non-voting ex-officio members. Its principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes. The Guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code. US. SENTENCING GUIDELINES § 1A1.1 (2011). 348 Td. at ch. 3-5. 39 Td. §2C1.1. 3° Td. §2C1.1(b). 31 Jd, § 3B1.1. 352 Td. at ch. 4, § 5A. 353 Id. §2B1.1(b)(10)(B), 2B1.1(b)(18)(A). %4 Td. § 8C2A (a). 355 Id. § 8C2.5. %6 Td. § 8C2.5(F), 8C2.5(g). 357 T)OJ has exercised this civil authority in limited circumstances in the last thirty years. See, €.g., United States & SEC v. KPMG Siddharta Siddharta & Harsono, et al., No. 01-cv-3105 (S.D. Tex. 2001) (entry of injunction barring company from future FCPA violations based on allegations that company paid bribes to Indonesian tax official in order to reduce the company’s tax assessment); United States v. Metcalf & Eddy, Inc., No. 99-cv-12566 (D. Mass. 1999) (entry of injunction barring company from future FCPA violations and requiring maintenance of compliance program based on allegations that it paid excessive marketing and promotional expenses such as airfare, travel expenses, and per diem to an Egyptian official and his family); United States v. American Totalisator Co. Inc., No. 93-cv-161 (D. Md. 1993) (entry of injunction barring company from future FCPA violations based on allegations that it paid money to its Greek agent with knowledge that all or some of the money paid would be offered, given, or promised to Greek foreign officials in connection with sale of company’s system and spare parts); United States v. Eagle Bus Manufacturing, Inc., No. 91-cv-171 (S.D. Tex. 1991) (entry of injunction barring company from future FCPA violations based on allegations that employees of the company participated in HOUSE_OVERSIGHT_022619