If only they made GPS units for legal compliance.
So you’re driving your family from Texas to visit the new Harry Potter theme park in Orlando. You’re under the gun. You must complete the long drive before tomorrow afternoon because you made special reservations and plans for your daughter to spend her birthday at the park. You can’t be late. But you've never been to Florida. “How hard can it be to find this park?” you think to yourself, confident that your advanced, albeit largely untested, driving and navigation skills will get you there in time and without a hitch. But your spouse keeps bugging you to buy a map “just in case” (you draw the line at GPS because you view the technology as undignified and wimpy). You give in to her demand (you hate it when she’s completely correct) and, while gassing up the car, you rifle through the collection of maps at the local convenience store. This is Texas, so the store does not have an Orlando map, but it does have a map to Plano, Texas, a city of comparable population and geographic configuration. You plop down $10.27 (includes tax) and stick the map in the glove compartment. The drive proves more challenging than you anticipated, and you need to make up several hours that you lost somewhere along the Gulf Coast. You finally reach the Florida border, but there are no road signs to the Harry Potter theme park or Orlando. You are fast approaching a fork in the road. You’re probably doomed anyway, but take the wrong road and your fate is sealed. Everyone in the car starts to panic, so your wife pulls out the new map from the glove compartment, opens it and asks “Honey, where’s the map to Orlando?” [Disclaimer: the story you just read is completely fictional, excepting the part about the new Harry Potter park, which rocks from all accounts].
I know what you are thinking. There isn’t an idiot on earth that would buy a map to a city he/she is not visiting. I respectfully disagree. Lawyers see this kind of thing happen every day, not with cartography, but with compliance manuals and procedures. Manuals and procedures are maps of sorts that lead companies to legal compliance. You would think that their importance would be more widely recognized. Companies regularly buy off-the-shelf compliance templates, “borrow” some other company’s manual, or fail to update a good compliance manual that may have been correct and helpful in the distant past.
While we are on the subject of the Gulf Coast, let’s talk about BP’s oil spill and the importance of good compliance policies.
BP’s emergency cleanup plan instructs its employees to look out for walruses, sea otters, sea lions and seals during oil spills in the Gulf of Mexico. The problem is that none of these mammals live in the Gulf (I guess we should all be thankful that BP did not also list orcas, penguins, and flying reindeer). BP’s emergency plan also lists the contact information for an ocean biologist who has been dead for five years, and unless BP or Kevin Costner know a reputable medium, that information is likely to be of little value in cleaning up the spill or mitigating BP’s legal exposure. It is not that BP is exceptionally bad when it comes to its emergency procedures, just equally bad. The news services are reporting that BP copied verbatim its emergency cleanup plan from other major companies.
I cannot predict whether BP will be indicted for its misdeeds and mistakes in the Gulf. However, I can predict with some confidence that if BP is indicted and convicted, the Government will trot out BP’s shoddy emergency cleanup plan to convince the judge to inflict the most severe punishment possible.
BP’s oil spill is a nightmare that keeps on giving, but it may be possible to find an untainted, healthy anemone in all the oily muck. Maybe companies will more often evaluate their compliance procedures before emergencies pop up. Maybe it will finally sink in that due diligence requires that they DO diligence.
If your compliance procedures are not customized to fit your company’s unique needs and culture, and if they are not updated regularly to accommodate rapidly evolving laws, technology, and changes within a company, then they are as helpful as a Texas map in Florida.
Principal and a founding member of GRVR Attorneys.