that set the organization’s expectations for itself higher than the law requires.
Regulatory compliance can also connote conformance to negotiated
standards. Negotiated standards are very common today in deferred
prosecution agreements, 8 corporate integrity agreements, 9 and other type of
settlements with federal or State departments. 10
When the two terms “regulatory” and “compliance” are taken together,
they sharpen the focus of compliance in today’s commercial setting, even
though “regulatory” is usually suppressed. Regulatory compliance involves
the identification of expectations, whether externally imposed or internally
adopted, and the conformance of the organization’s corporate acts to those
The one arena which compliance deals with in practice, but has a hard time
fitting into the term “regulatory,” is ethics. As discussed below, compliance
programs frequently treat ethics, and indeed the expectation of the Federal
Sentencing Guidelines is that a compliance program deal not just with the
law but explicitly include an ethics component, 11 but ethics as a component
of compliance programs is a highly undeveloped area. This aspect of ethics
could more specifically be referenced as business ethics, 12 but that is only
because it is a concentrated look at decision-making in a corporate setting.
Corporate behavior merits no special ethical framework that would be
different from how individuals go about making decisions.
The role of ethics in a compliance program is far from fleshed out and
even further in finding a clear fit within government agency guidances and
enforcements. The role of ethics in a compliance program begs the question
of whether ethics can be an expectation of the law. The law may assume
8. E.g., Deferred Prosecution Agreement Between the United States Attorney’s Office for
the District of New Jersey & Maxim Healthcare Services, Inc. (Sept. 12, 2011)
9. E.g., Integrity Agreement Between the Office of the Inspector General of the
Department of Health and Human Services and Dermedx Dermatology, P. C., D/B/A/
Dermatique And Barry A. Solomon, M.D., OFF. INSPECTOR GEN., DEP’T HEALTH & HUM.
SERVICES (July 14, 2016),
Barry_ A_Solomon_MD_07142016.pdf; see also Corporate Integrity Agreement Between the
Office of the Inspector General of the Department of Health and Human Services and Westlake
Convalescent Hospital, M.D., (July 5, 2016)
[hereinafter WCH CIA].
10. E.g., Deferred Prosecution Agreement Between United States Attorney’s Office for
the District of Florida and Latam Airlines Group S. A., U.S. DEP’T JUST. (July 25, 2016),
https://www.justice.gov/opa/file/878806/download (requiring defendant to retain an
independent corporate compliance monitor for a minimum of 27 months in addition to
updating its compliance program).
11. U.S.S.G. § 8B2.1.
12. See MICHAEL G. SILVERMAN, COMPLIANCE MANAGEMENT FOR PUBLIC, PRIVATE, OR
NONPROFIT ORGANIZATIONS 55 (2008).