FCPA Compliance and Ethics Blog

July 18, 2014

Looking Back on Johnny Winter and GSK’s 2001 China Bribery Scandal

Johnny WinterJohnny Winter died yesterday. He was one of the greatest rock and roll guitarists of all-time. As posted in Rolling Stone’s online article “Johnny Winter, Texas Blues Guitar Icon, Dead at 70” by Kory Grow, Winter “was born in Beaumont, Texas in 1944 and rose to prominence in his early 20s after a Rolling Stone cover story on Texas music in December 1968. “If you can imagine a 130-pound, cross-eyed albino with long fleecy hair playing some of the gutsiest, fluid blues guitar you ever heard, then enter Johnny Winter,” wrote Larry Sepulvado and John Burks in the issue. “At 16, [Mike] Bloomfield called him the best white blues guitarist he ever heard…. No doubt about it, the first name that comes to mind when you ask emigrant Texans about the good musicians that stayed back home is Winter’s.””

I was introduced to him by two long forgotten friends in the spring of 1976 through the album Johnny Winter Captured Live and most particularly the song ‘It’s All Over Now’. I spent most of yesterday afternoon listening through my ear buds to that song blasting at the highest volume possible and went immediately back to those nights in 1976 listening to Winter’s axe hammer guitar and vocals. I also considered how great Winter was as he is Number 63 on Rolling Stone’s list of the Top 100 Guitarist’s of all-time.

Interestingly yesterday, there was an article in the Financial Times (FT) by Demetri Sevastopulo and Andrew Ward, entitled “GSK admits to 2001 Chinese bribery scandal”, which reported that the UK pharmaceutical company GlaxoSmithKline PLC (GSK) had been involved in a prior bribery scandal in China back in 2001. They reported, “The Financial Times has learnt that GSK also found problems with its China vaccine business in 2001 that led to the firing of about 30 employees.” The article went on to say, “Two people familiar with the 2001 scandal said GSK found that staff were bribing Chinese officials and taking kickbacks. The company acknowledged the matter for the first time to the Financial Times, but said it had dealt with the issue rigorously.”

Obviously having a prior bribery scandal in the very same country as another current scandal portends poorly for GSK, as the FT noted. “The US Department of Justice, which is investigating the current allegations, will take a close look at the earlier scandal, said a former senior DoJ official who asked to remain anonymous. If it found a pattern of such behaviour, the justice department was likely to take a tougher stance towards the company, legal experts said.” The FT article quoted Timothy Blakely, a partner at the US law firm of Morrison & Foerster, who said, “US prosecutors would have to examine the 2001 case under justice department guidelines to see whether there was a pattern of behaviour. “It is something that a prosecutor would have to take into account,” said Mr Blakely.”

Unfortunately for GSK the 2001 scandal has some other rather inconvenient facts, which may well impact how the company fares in the current imbroglio in which it finds itself. The first fact is that unlike the current scandal, which unfolded beginning in 2013 when an anonymous whistleblower presented evidence of bribery and corruption in the company’s China operations, in the 2001 scandal the company took swift actions to investigate the allegations. In 2001, GSK hired PricewaterhouseCoopers (PwC) to investigate the allegations “at the time the corruption suspicions emerged.” The 2001 investigation, as noted above, led to the termination of “about 30 (GSK) employees”.

One of the difficulties for GSK is that it appears this robust response in 2001 contrasts dramatically with its response in 2013. It is now known that GSK was notified by the anonymous whistleblower of allegations of bribery and corruption as early as January 2013. Yet the company gave itself a clean bill of health, finding no evidence of any wrongdoing. However, it did not take Chinese authorities long at all to investigate and conclude that there was “evidence of “massive and systemic bribery”” in GSK’s China business operations.

Interestingly, one of the PwC investigators back in 2001 has played prominently in this current bribery problem. It is Peter Humphrey who is currently under indictment for his actions around some of GSK’s current problems. But, as reported by the FT, back in 2001 “One member of the PwC team in 2001 was Peter Humphrey. Now an independent investigator, he is being held in China on charges of illegally buying private information in connection with GSK’s current scandal.”

Humphrey, his naturalized American wife Yu Yingzeng and their companyChinaWhys Co., were hired by the GSK after GSK received a copy of a sex tape made of the company’s head of its China operations, Mark Reilly and his girlfriend having sex. Their assignment was to investigate the matter, the genesis of the tape and try to determine who filmed the couple. Humphrey has claimed that he was kept in the dark about the bribery and corruption allegations made at the same time as the notice about the sex tape was made to GSK officials. But if he was part of the investigation team back in 2001, do you think he might have inquired about any current allegations of bribery or corruption or any ongoing company investigations? What are the implications for GSK if he did make such inquiries but was not given correct information?

Another very interesting issue for GSK is that its current Chief Executive Officer (CEO), Sir Andrew Witty, “was the company’s head of Asia-Pacific, but his responsibilities excluded China. GSK said Sir Andrew “was not involved in and was not aware of” the case at the time. Sir Andrew has tried to cast GSK as a leader in ethical reforms since it was hit with a record $3bn DoJ fine for marketing abuses in 2012. But his clean-up effort, including measures to cut the link between sales volume and pay for marketing personnel, has been overshadowed by the latest scandal in China.”

All of these ‘coincidences’ may lead the US Department of Justice (DOJ) or the UK Serious Fraud Office (SFO) to conclude that GSK has a culture of non-compliance or worse yet – a culture of corruption. The FT article cited to un-named legal experts for the following, “If prosecutors find a pattern of such behavior, they are likely to take a tougher stance towards the company.” Do not forget that GSK had paid a $3bn fine for false marketing and is currently under a Deferred Prosecution Agreement (DPA) for those illegal actions.

While it is not clear how all of this will end up for GSK, I do fear it will end poorly. So if you are in GSK now, I might suggest that you put on your best headphones and crank up the volume on your receiver (or iPhone as I doubt many people have receivers anymore) and listen to my fellow Texan Johnny Winter blast out “It’s All Over Now”. Because you know, it is….

For a blast from the past, check out this version of Johnny Winter playing “It’s All Over Now” on YouTube.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

July 7, 2014

No Sex Please, We’re British: More from GSK in China

No Sex PleaseThe above is the title of a British television show/play/movie which is a farcical romp about a newlywed couple who mistakenly receive an initial shipment of pornographic pictures, then movies and women, all sent from Sweden to England. The plot turns on their attempts to dispose of the ‘offending materials’ while under the noses of their parents/in-laws, employers and friends. In his review of the show, Christopher Heath said, “No Sex Please, We’re British shows how we stuffy Brits tie ourselves in knots when it comes to this subject. The funny thing is how the cast, led by Ronnie Corbett, handle their predicament and it has to be said, they cope with aplomb. As you might expect, the plot is all about mix-ups, keeping a stiff upper lip, maintaining a veneer of social respectability, not getting found out about something someone hasn’t done and failing miserably.”

I thought about that ubiquitous work of British visual and audio entertainment when the revelations from late June that the GlaxoSmithKline (GSK) PLC corruption scandal all started with a sex tape. In an article in the MailOnline, entitled “How a secret sex tape plunged British drugs giant Glaxo in a £90million bribery probe”, Rebecca Evans reported “A covert sex tape involving a senior executive and his Chinese lover was the trigger for a major investigation into corruption at British drugs giant GlaxoSmith-Kline, it was revealed yesterday. The video of married Mark Reilly and his girlfriend was filmed by secret camera and emailed anonymously to board members of the pharmaceutical firm. It led to an investigation that has rocked the £76billion company – which stands accused of bribing doctors and other health officials in China with £320million of gifts, including sexual favours from prostitutes, to persuade them to prescribe its drugs.”

This sex tape, along with allegations of bribery and corruption, were sent to GSK Board members, including Chief Executive Officer (CEO), Andrew Witty in March 2013 by someone with the email address “GSK Whistleblower”. Evans reported that two additional emails “making serious fraud allegations” were sent as well, one in January and one in May. In an article in the Wall Street Journal (WSJ), entitled “Sex Video Sheds Light in Glaxo China Case”, Laurie Burkitt reported that “The British drug maker regarded the video—apparently shot without the executive’s knowledge—as a breach of security, the person said.” Evans reported that in addition to this security breach, GSK believed the sex tape to be a “threat or blackmail attempt”. One of GSK’s responses was to hire the firm ChinaWhys Co., to investigate the matter. The firm’s principals, former journalist Peter Humphrey and Yu Yingzeng, a naturalized US citizen, were not able to determine who placed the video camera in Reilly’s Shanghai apartment, who shot the video or who sent it to GSK executives. However Evans reported “But a few months after starting to investigate Miss Shi, Mr Humphrey was arrested along with his wife Yu Yingzeng, a US citizen and daughter of one of China’s most eminent atomic weapons scientists. According to the Sunday Times, Mr Humphrey’s arrest and detention in July was at around the same time that China began a police probe into GSK’s alleged bribery.” And, unfortunately for Humphrey and his wife, they were arrested last August for allegedly breaking of Chinese laws relating to information privacy.

In addition to the investigation into the provenance of the sex tape and its sender, GSK had also engaged in an internal investigation into the substantive allegations of bribery brought forward by the “GSK Whistleblower” in emails to the GSK Board in January and May, 2013. As reported by Evans, “The emails laid out a series of sales and marketing practices described as ‘pervasive corruption’.” Unfortunately for the company, GSK “found ‘no specific evidence’ to substantiate the claims. However, the accusations are virtually identical to the charges laid by police against Mr Reilly and 45 other suspects. Last month, Britain’s Serious Fraud Office announced it is to investigate the company’s ‘commercial practices’.”

‘Honey-pots’ and ‘Sparrow-nests’ are well known terms for anyone who has read cold war tales of espionage between the former Soviet Union and the US. However, the Reilly sex-tape and the GSK bribery scandal would seem to be an entirely different can of worms. In an article in Time, entitled “What the GSK Sex Tape Says About Surveillance in China, Hannah Beech wrote that in China, “Surveillance – or the threat of surveillance — is a constant in China. As a journalist, I may be more interesting to the powers that be than some other foreigners here. But other expat friends who’ve been followed, hacked or otherwise tracked in China include diplomats, NGO staff and businesspeople. Also, artists and academics.” Such surveillance includes having “email auto-forwarding mysteriously activated or to be tailed by a black Audi while on assignment in the Chinese countryside.”

For the compliance practitioner the lessons of GSK in China continue to resonate, unfortunately for the negative consequences to GSK and its employees. All of the above articles note that the allegations of bribery and corruption presented to GSK by the “GSK Whistleblower” were also made to Chinese officials, who then began to investigate the company. Andrew Ward, reporting in a Financial Times (FT) entitled “Sex tape adds to murk of GSK China scandal”, said “A separate internal investigation was already under way into the bribery allegations that had first been made by a whistleblower in January.” Unfortunately for GSK, its internal investigation failed to turn up any evidence of bribery and corruption. More unfortunately for the company, “Mr. Reilly, a Briton and long-time GSK executive, was among 46 company employees identified by Chinese police in May as suspects when they handed evidence of “massive and systematic bribery” to prosecutors after a 10-month investigation.”

It does seem incredible at this point that any serious internal investigation could fail to turn up any of the evidence that the Chinese government has been able to develop against GSK. This points to the absolute importance of your internal investigations. Although the GSK investigation was focused in China, the same is true in the US, particularly for a US listed company subject to Dodd-Frank. Further, we must invoke that well-known British author George Orwell for reminding you that in some countries Big Brother really is watching you. And finally, you may not be paranoid as people really may be watching you and filming your most intimate acts.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

June 26, 2014

Coolness in Being the Bad Guy? Eli Wallach and GSK

Eli WallachEli Wallach died Tuesday. For my money, he was about the coolest bad guy out there. Not tough like Lee Marvin, just cool. My favorite Wallach roles were as Calvera in The Magnificent Seven and as Tuco in The Good, The Bad and The Ugly. An early proponent of method acting, Wallach performed on the stage and in films for over 60 years. Although originally from Brooklyn, Wallach was also a fellow Texas Longhorn, having attended the University of Texas. He served in France as a Second Lieutenant in France during World War II.

I thought about Wallach’s über coolness when considering the most decided uncool position of the UK pharmaceutical giant GlaxoSmithKline PLC (GSK) recently. Last month the Chinese government issued a most very stern warning to GSK when it accused the former head of GSK’s China business of direct involvement in bribery and corruption. But more than this direct accusation, the move was a clear warning shot across the bow of not only western pharmaceutical companies doing business in China but also all western companies. In an article in the Wall Street Journal (WSJ), entitled “Beijing Warns Sernly on Glaxo”, Laurie Birkett quoted Helen Chen, a director and partner at consultancy L.E.K., as saying “Focusing much of the blame on a foreigner sends a strong message to all. Companies will see that if authorities are willing to accuse even a foreigner, who is in senior management, the issue is being taken seriously, it’s a clear message that bribery is unacceptable in the market.” Burkitt went on to say, “Experts say China’s medical system is deeply underfunded, giving doctors, hospitals and administrators an incentive to overcharge and overprescribe. Glaxo, in the past, organized trips for doctors around China and to places such as Budapest and Greece as part of a broader effort involving perks and cash to get doctors to boost drug prescriptions, according to documents previously reviewed by The Wall Street Journal.”

Such reports of endemic corruption are not new. An article, entitled “GSK China probe flags up wider worries”, in the Wednesday edition of the Financial Times (FT) reporters Andrew Jack and Patti Waldmeir discussed not only the endemic nature of corruption in China but how, in many ways, the Chinese health care system is based on such corruption. The piece quoted George Baeder, an independent drug industry advisor, for the following, “Financial flows – both legal and illegal – tied to drug and device sales are funding perhaps 60-80 per cent of total hospital costs. Without this funding, the current system would collapse.” Further, “central and provincial Chinese governments cannot afford to pay doctors a living wage, and may patients cannot afford to pay the true cost of care.” And finally, “Up to now, Beijing has turned a blind eye as pharma companies find ways to subsidise doctor salaries and underwrite their medical education.” How about that for structural corruption?

Intertwined with this structural issue is the problem of the quantity and quality of the drug supply. Many Chinese doctors do not feel that there is an acceptable alternative to foreign pharmaceutical products. This drives up the cost of prescribed medicines, as this quantity is therefore limited. But even where indigenous Chinese generic drugs are available as alternatives, many patients do not trust these medicines. This restricts the quality of drugs available.

But with this recent round of accusations against GSK it appears that the Chinese government has opened a new front. In an article in The Telegraph, entitled “GSK bribery scan could cause ‘irreparable damage’, says China”, Denise Roland reported that “Beijing has apparently issued a warning to all foreign firms, cautioning that the corruption charges against GlaxoSmithKline executives could cause “irreparable damage” to the drug maker’s Chinese operations.” She quoted from the state news agency Xinhua for the following, “GSK’s practices eroded its corporate integrity and could cause irreparable damage to the company in China and elsewhere. The case is a warning to other multinationals in China that ethics matter.”

In addition to these charges against a senior GSK executive, which could lead liability up to the GSK boardroom, Jonathan Russell, also writing in The Telegraph, in an article entitled “GlaxoSmithKline is facing more than double jeopardy”, said that “GlaxoSmithKline’s problems are multiplying fast. In China authorities have identified 46 individuals connected to the company they claim were involved in “massive and systemic bribery”. In the UK the Serious Fraud Office (SFO) marked out its pitch this week, revealing it has opened an official investigation into allegations of bribery; and an internal GSK probe is looking at potential wrongdoing in Jordan and Lebanon.” More ominously, he also noted that “Given the slew of allegations so far it seems a fair assumption that other international law enforcement agencies, notably the US Department of Justice, will be taking a long, close look at the allegations.”

While Russell points to the general UK prohibition against prosecutions, which might invoke double jeopardy, he says “As ever with the law there are exceptions to the principle. However they are limited in scope and rare in number. It may also be the case that the principle of double jeopardy may not be invoked in this case if the alleged offences the SFO is investigating are separate to those under investigation in China. They could relate to matters that took place in Jordan or Lebanon.” Russell also pointed out that “international prosecutors carving up parts of prosecutions so they can all have their pound of flesh. A very painful prospect for GSK.” It will also be interesting to see if GSK is charged under the UK Bribery Act, under the prior law or both. If charges are brought under the Bribery Act, which became effective on July 1, 2011, do you think GSK would try and raise a compliance defense based on the Six Principals of Adequate Procedures? I guess having a compliance defense is pretty useless if your company engages in bribery and corruption.

While Russell talks about the aggressiveness of US prosecutors under the Foreign Corrupt Practices Act (FCPA), he does not discuss what may be GSK’s greatest exposure in the US. GSK was under the equivalent of a Deferred Prosecution Agreement (DPA) called a Corporate Integrity Agreement (CIA) for its prior sins related to off-label marketing. This CIA not only applied to the specific pharmaceutical regulations that GSK violated but all of the GSK compliance obligations, including the FCPA. In addition to requiring a full and complete compliance program, the CIA specified that the company would have a Compliance Committee, inclusive of the Compliance Officer (CO) and other members of senior management necessary to meet the requirements of this CIA, whose job was to oversee full implementation of the CIA and all compliance functions at the company. These additional functions required Deputy Compliance Officers for each commercial business unit, Integrity Champions within each business unit and management accountability and certifications from each business unit. Training of GSK employees was specified. Further, there was detail down to specifically state that all compliance obligations applied to “contractors, subcontractors, agents and other persons (including, but not limited to, third party vendors)”.

For the compliance practitioner, one clear message from the GSK matter is to monitor, audit and continuously review your Chinese operations. I will have more to say about the China corruption crackdown in an upcoming blog post but just like Eli Wallach as Calvera in The Magnificent Seven told the gunmen hired to protect the Mexican village, you have been warned.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

June 9, 2014

GSK Faces a Bad Day at Black Rock

Bad Day at Black RockOne of my favorite movies is Bad Day at Black Rock. It is one of the few movies to combine elements of film noir into something approaching a traditional Western. It also attacks directly the prejudice and hate against Japanese-Americans in the immediate aftermath of Pearl Harbor. I thought about that eponymous title when I read a recent article in the Financial Times (FT), entitled “GSK salesmen want ‘bribes’ reimbursed”, by reporters Patti Waldmeir and Andrew Ward.

You know it is going to be a bad day when your employees line up to testify against your company in an ongoing investigation for bribery and corruption. But those rainy day sighs can go up to the Bad Day at Black Rock level when these same employees publicly announce that the company they work for owes them for the creation of fraudulent invoices used by a business unit to fund bribery and corruption which violates not only the US Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act but also domestic Chinese anti-corruption laws. This happened to the UK pharmaceutical giant GlaxoSmithKline PLC (GSK) last month when it was announced that certain current employees in its China operation were petitioning the company to reimburse them for bribes they were ordered to pay by their superiors.

In their article, Waldmeir and Ward wrote “the UK pharmaceutical company at the centre of a Chinese corruption scandal, is facing protests from junior employees who say the company is refusing to reimburse them for bribes they were ordered to pay by their superiors.” While my initial thought was that these Chinese employees had quite a bit of ‘cheek’ in raising this claim, the more I read into the story, the more I think it may portend serious problems for GSK in any attempt to defend the company going forward. Waldmeir and Ward reported “some Chinese sales staff are complaining that GSK has denied bonuses, threatened dismissal or refused to reimburse them for bribes they say were sanctioned by their superiors to boost the company’s drug sales. In some cases, managers instructed them to purchase fake receipts that were used to cover up bribes paid in cash or gifts to doctors and hospitals, according to salesmen interviewed by the Financial Times.”

The article went on to highlight just how some of these fake invoices, used to gain funds from the corporate headquarters to facilitate bribery and corruption, were generated. “In some instances, managers disguised their involvement by using their personal email address to instruct staff to pay bribes and by ordering junior staff to claim on their personal expense accounts – even if the bribe was actually paid out by the manager – according to these people.” Last March, a group of current GSK employees sent a letter to the company that said, in part, ““All the expenses were approved by the company,” the group wrote in a letter to management. “The expenses were paid with our own money, and although the receipts were not compliant, it was our managers who told us to buy the fake receipts,” said one former GSK salesman.”

The article quoted that GSK said, “We have zero tolerance for unethical or illegal behaviour and anyone who conducts such behaviour has no place in our company. We believe the vast majority of our employees uphold our values and we welcome employees speaking up if they have concerns.” Talk about a ‘Speak Up’ culture at your company. Probably not exactly what the company had in mind when it invited employees to raise their concerns.

However, as damning as this is, and it would certainly appear to be quite damning, was the following revelation, which was also reported by Waldmeir and Ward, regarding witness prep during GSK’s internal investigation. They wrote, “Some staff were warned not to implicate their supervisors, according to a former salesman: “Our manager approached each person before they were questioned and asked them not to mention his name. He even prepared a story for them to tell the investigator.””

Dissecting all of the above, it would appear that GSK has several real problems on several fronts from this article. The first is that there appears to have been clear China business unit management participation in the bribery and corruption scheme. While it is still not clear whether the corporate home office was involved in the scheme, simply knew of it or choose to bury its collective head in the sand as to what was going on in China, if your in-country business unit management is involved, it is not too many steps to the corporate home office. Conversely, the question might be that if this fraud against the corporate home office was so open and obvious, why did the corporate office not detect it going forward?

Yet the real issue for the corporate office may be the information about employees being coached to hide evidence during the investigation. If such activity was limited to the ‘managers’ in the Chinese business units only, what does it say about a corporate office, which allows such witness intimidation? Think that is an investigation best practice? However, if the corporate office was involved in any way in such witness intimidation, it will bode extremely poorly in the eyes of the Chinese regulators, the UK Serious Fraud Office (SFO), which has opened an investigation into the GSK matter and probably the US Department of Justice (DOJ) as well, since GSK is still subject to the Corporate Integrity Agreement (CIA) it signed back in July of 2012; when it pled guilty and paid $3 billion to resolve fraud allegations and failure to report safety data in what the DOJ called the “largest health care fraud settlement in U.S. history” according to its press release. Think witness tampering or hiding of evidence might garner the attention of the DOJ for a company already under the equivalent of a Deferred Prosecution Agreement (DPA)?

In addition to all of the above conduct, it will be interesting to see the effect of this ongoing investigation on the stock value of GSK. In a Wall Street Journal (WSJ) article, entitled “FCPA Hits Companies Harder if they Committed Fraud”, Sam Rubenfeld reported “A study of U.S. Foreign Corrupt Practices Act enforcement issued by the Searle Civil Justice Institute, a research division of The Law & Economics Center at George Mason University School of Law found that public companies lost an average of 2.9% of market capitalization as a result of an investigation. But, the study found, the number masks an important distinction: Companies charged with bribery only suffered an initial 1.5% loss, while those charged with bribery and financial fraud saw a initial drop of 16.3% in market cap.” It will be interesting to see the effect the apparent fraudulent activities of GSK’s China employees will have on not only the overall penalty assessed against GSK but if there is any attendant drop in shareholder value.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

 

© Thomas R. Fox, 2014

May 29, 2014

May Flowers for GSK? The Corruption Investigation Deepens

Chelsea Flower ShowApril showers bring May flowers, at least that is the old truism. One place it is decidedly correct is at the RHS Chelsea Flower Show, which began its run as one of the, if not the greatest, annual flower shows in the world in May 1862. The event draws some 157,000 people during its five-day run each May. The event has royal patronage and there is always a large contingent of royalty who visit the show.

Unfortunately one group of Englishmen and women who will not be stopping by to ‘smell the roses’ this year are those from the increasingly embattled UK company GlaxoSmithKline PLC (GSK). Yesterday the UK Serious Fraud Office (SFO) announced that it had “opened a criminal investigation into the commercial practices of GlaxoSmithKline plc and its subsidiaries.” To top off this bouquet of May flowers from the SFO, in the same Press Release the SFO said, “Whistleblowers are valuable sources of information to the SFO in its cases. We welcome approaches from anyone with inside information on all our cases including this one – we can be contacted through our secure and confidential reporting channel, which can be accessed via the SFO website.” It then proceeded to provide the SFO’s secure reporting website.

In an article in the New York Times (NYT), entitled “GlaxoSmithKline Under Investigation by Serious Fraud Office”, Chad Bray reported that the SFO “is investigating Glaxo’s business activities in “multiple jurisdictions,” according to a person familiar with the investigation who was not authorized to speak publicly.” As most readers will recall, “Chinese authorities have been investigating the drugmaker’s business practices related to payments to doctors and other health care professionals since last year and questions have been raised in recent months about the company’s practices in Iraq and Poland.”

James Titcomb, reporting in The Telegraph, in an article entitled “SFO opens criminal investigation into GlaxoSmithKline”, went further when he noted that GSK has been in contact with the SFO “in recent months in the wake of claims that it funnelled hundreds of millions of pounds to doctors and officials in countries around the globe to boost sales of its drugs.” Moreover, “Chinese police have accused the company of dispensing 3bn yuan (£285m) in bribes under the leadership Mark Reilly, the former head of its Chinese business. Authorities in the country say the bribes resulted in billions of pounds in “illegal revenue” for the company.”

On the Chinese side of the investigation, the NYT article reported that during the month of May, “Chinese authorities accused Mark Reilly, the former head of Glaxo’s operations in China, of ordering employees to bribe doctors and other hospital staff to use the drug maker’s products, resulting in more than $150 million in illegal revenue. Two other Chinese-born Glaxo executives were also charged in the matter.”

When news of the Chinese investigation broke last summer, GSK claimed that “Certain senior executives of GSK China who know our systems well, appear to have acted outside of our processes and controls which breaches Chinese law,” Glaxo said in July, after meeting with the Chinese authorities. “We have zero tolerance for any behavior of this nature.” [Read: Rogue Employees] However it appears the Chinese authorities have not fallen for this age-old attempt at corporate misdirection. But Andrew Ward, reporting in a Financial Times (FT) article entitled “SFO opens criminal inquiry into GSK, said that the Chinese authorities had engaged in a “ten-month investigation” which had identified 46 current or former GSK employees as “suspects”. Rogue indeed.

Where might the US Department of Justice (DOJ) or Securities and Exchange Commission (SEC) be on these issues? Clearly, these would seem to be areas of at least inquiry under the US Foreign Corrupt Practices Act (FCPA), but consider the following about GSK, in July of 2012 GSK pled guilty and paid $3 billion to resolve fraud allegations and failure to report safety data in what the DOJ called the “largest health care fraud settlement in U.S. history” according to its press release. The DOJ press release went on to state “GSK agreed to plead guilty and to pay $3 billion to resolve its criminal and civil liability arising from the company’s unlawful promotion of certain prescription drugs, its failure to report certain safety data, and its civil liability for alleged false price reporting practices.” The press release noted that the resolution was the largest health care fraud settlement in US history and the largest payment ever by a drug company for legal violations.

You would think that any company that has paid $3 billion in fines and penalties for fraudulent actions would take all steps possible not to engage in bribery and corruption. Indeed as part of the settlement GSK agreed to a Corporate Integrity Agreement (CIA). This CIA not only applied to the specific pharmaceutical regulations that GSK violated but all of the GSK compliance obligations, including the FCPA.

In addition to requiring a full and complete compliance program, the CIA specified that the company would have a Compliance Committee, inclusive of the Compliance Officer and other members of senior management necessary to meet the requirements of this CIA, whose job was to oversee full implementation of the CIA and all compliance functions at the company. These additional functions required Deputy Compliance Officers for each commercial business unit, Integrity Champions within each business unit and management accountability and certifications from each business unit. Training of GSK employees was specified. Further, there was detail down to specifically state that all compliance obligations applied to “contractors, subcontractors, agents and other persons (including, but not limited to, third party vendors)”. So while GSK may have separate FCPA liability to be investigated by the DOJ; it may be more of an issue that the company could be in violation of its CIA.

GSK has of course averred that it is fully cooperating with all of the various investigations into its alleged bribery and corruption. Further, as reported in Ward’s FT article, “GSK said it was “committed to operating its business to the highest ethical standards”. The company had “previously denied any systemic problem with corruption and said the latest Chinese allegations were “deeply concerning to us and contrary to the values of GSK”.”

So I guess the GSK team probably missed the Chelsea Flower Show this year. ON the other hand, maybe they might be like former BP President Tony Hayward, who during the first few of weeks of the worst oil spill in the history of the world ever, went yachting…

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

December 20, 2013

What Hath GSK Wrought? More Compliance Lessons from China

In an article, entitled “GSK China probe flags up wider worries”, in the Wednesday edition of the Financial Times (FT) reporters Andrew Jack and Patti Waldmeir discussed the ongoing bribery and corruption scandal involving the UK based pharmaceutical company, GlaxoSmithKline PLC (GSK). They detailed many of the allegations which had been previously made public against GSK, the effect of these allegations on the company and some of the company’s responses to this crisis. It was an excellent summary of where this story has been and where it might be going.

The accusations against GSK have been well publicized. The company has been accused, by its own Chinese employees on national television, of being the “big boss in a criminal partnership” and paying up to $500MM in bribes to officials and doctors. While there certainly has been speculation as to the motives of the Chinese officials in bringing these allegations, the article noted that these allegations certainly raise questions about “GSK’s own conduct and the responsibility of its senior management” and whether the company’s compliance systems were inadequate or the company “turned a blind eye” to the corruption by its Chinese operations. The article did note that Chinese investigators do not yet know how high up the complicity in GSK may have gone or whether the company simply suffered from “poor compliance”.

Interestingly the article discussed not only the endemic nature of corruption in China but how, in many ways, the Chinese health care system is based on such corruption. The piece quoted George Baeder, an independent drug industry advisor, for the following, “Financial flows – both legal and illegal – tied to drug and device sales are funding perhaps 60-80 per cent of total hospital costs. Without this funding, the current system would collapse.” Further, “central and provincial Chinese governments cannot afford to pay doctors a living wage, and may patients cannot afford to pay the true cost of care.” And finally, “Up to now, Beijing has turned a blind eye as pharma companies find ways to subsidise doctor salaries and underwrite their medical education.” How about that for structural corruption?

Intertwined with this structural issue is the problem of the quantity and quality of the drug supply. Many Chinese doctors do not feel that there is an acceptable alternative to foreign pharmaceutical products. This drives up the cost of prescribed medicines as this quantity is therefore limited. But even where indigenous Chinese generic drugs are available as alternatives, many patients do not trust these medicines. This restricts the quality of drugs available. Sort of an economist’s Rubik’s Cube.

But just as market principles can drive other corporate behavior, the fact that by 2020, the drug sales in China are estimated to top $320bn; it is simply too large a market for companies to ignore. The same is true of the Chinese government, which is currently in year 5 of a 12-year healthcare reform plan, part of which is to drive down medical costs to bring “quality affordable care to 1.3 bn” Chinese citizens. So, as the article notes, GSK and “other pharmaceutical companies are bracing for price cuts ahead and the need to be ever more cautious on their practices in emerging markets as well as more industrialized ones.”

GSK has attacked part of its corruption problems by instituting a compensation program which is designed “at removing incentives to sales staff that encouraged excessive marketing, strengthened transparency and cutting funding to doctors.”  Specifically, the company announced the decision to “stop paying speakers’ fees and travel expenses for doctors attending medical conferences by 2015.” For the changes directed at its own sales staff, GSK has said that “Individual sales targets in the remuneration of marketing staff are to be replaced by broader measures of the quality of information they provide to doctors and a link to company-wide performance.”

China is not the only company in Asia or other continents which have socialized medicine. I have opined that the GSK corruption scandal in China is the biggest news in anti-corruption and anti-bribery enforcement in 2013. I believe this because I think that other countries may look at the Chinese model and draw the lesson that it is western companies, not their own structural corruption, which causes the problems. I put this question to Amy Sommers, a partner at K&L Gates Shanghai office and asked her opinion. She replied:

Prior to 2013, when I spoke to Western audiences about anticorruption enforcement risks and mentioned the importance of China’s commercial bribery enforcement as a risk factor in its own right, as well as a potential catalyst for broader enforcement, the message didn’t seem to resonate. With the booming echo of the DOJ’s and SEC’s active FCPA enforcement efforts in the past 8 years ringing in their ears, it’s perhaps understandable that that message was drowned out. As we approach the end of 2013, I think your characterization of China’s action as a game-changer is on the money.  Today companies are evaluating China-initiated enforcement as a factor to be considered in their compliance efforts.

China’s initiation of this case has been a success for China on various levels, so there’s no question that there will be others brought.  The industry that the Chinese government has said publicly that it intends to tackle next is medical devices, but we should not assume that that will be the end of the journey.  Moreover, the question that is still unanswered is whether other jurisdictions in Asia Pacific will elect to emulate China’s example. Some news sources have reported that Asia Pacific-based regulators have expressed that intention, so I suspect they will: going after alleged corruption in the interests of protecting consumers is a desirable aim.  So, while for the moment companies seem to focusing on getting their China compliance house in order, it might be advisable to broaden that effort to other locales in Asia where there is a combination of strong economic growth and relatively high perceived corruption risk.

So in addition to the admonition of Bette Davis that you had better buckle up because it is going to be a bumpy night, any western company doing business or considering doing business in China needs to understand that there are not only direct risks of corruption but also structural defects which may make it endemic. Be careful out there.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

December 18, 2013

Joan Fontaine and the Evolution of Compensation Issues in a Compliance Program

Yesterday I noted the passing of Irish actor Peter O’Toole this past weekend. But we also lost one of the great female leads from the 1940s and 50s this weekend as well, Joan Fontaine. Ms. Fontaine was the younger sister of Olivia de Havilland. She won a Best Actress Oscar in 1941 for her role in Suspicion making her the only woman to win a Best Actress Oscar for acting in an Alfred Hitchcock film. It also made her a member of the only sisters’ duo to win Best Actress Oscars. Prior to winning her Oscar, Fontaine had been nominated in 1940 in the Best Actress category for her role in another Hitchcock film, Rebecca, in which she played the haunted second wife of Laurence Olivier. For my money, her role in Rebecca was by far the greater performance than Suspicion. While born of British parents, Fontaine never actually lived in England, being born in Japan and then coming to the United States as a teenager. Fontaine also had one of the greatest sibling rivalries of all-time with her equally famous sister, stating once that, “I married first, won the Oscar before Olivia did, and if I die first, she’ll undoubtedly be livid because I beat her to it!” She did.

So with the sisters, some things never changed. However in the compliance world, things do change. Compliance programs evolve just as the thinking on best practices has changed over the past few years. One of the areas that has not received as much attention in compliance programs is the amount of compensation paid to third party representatives. Clearly a great amount of attention has been paid to due diligence, knowing just who you are doing business with and the management of the relationship. However the area of the quantum of compensation is not something as explicitly considered. Another area which is now drawing greater scrutiny in the Foreign Corrupt Practices Act (FCPA), and other anti-corruption law arenas, is compensation which results in a conflict of interest.

Jeff Kaplan, editor of the Conflict of Interest Blog, wrote, in a post entitled “Conflicts of Interest and Industry Culture”, that “intersection of culture and C&E that is too often overlooked: industry culture.” He went on to say that “As a general matter industry culture is not as significant a cause of risk as organizational or geographical culture. But it can be potent, particularly in industries with a high degree of inter-company mobility, such as financial services.”

I thought about Kaplan’s insights when I read an article in today’s New York Times (NYT), entitled “Glaxo to Stop Paying Doctors To Boost Drugs”, by Katie Thomas. This is the same GlaxoSmithKline PLC (GSK) that is under investigation for bribery and corruption in China, in violation of Chinese domestic anti-corruption legislation. In her article Thomas wrote that “British drug maker GlaxoSmithKline will no longer pay doctors to promote its products and will stop tying compensation of sales representatives to the number of prescriptions doctors write, its chief executive said Monday, effectively ending two common industry practices that critics have long assailed as troublesome conflicts of interest.” While this practice has gone on “for decades” it had been prohibited in the United States through an “industry-imposed ethics code but still occurs in other countries, specifically in China. I found this quite interesting since the FCPA only applies to non-US (foreign) government officials, such as those in socialized medicine health care system.

In addition to this ban on paying doctors to speak favorably about its products at conferences, GSK will “also no longer compensate sales representatives based on the number of prescriptions doctors write, a standard practice that some have said pushed pharmaceutical sales officials to inappropriately promote drugs to doctors.” Instead GSK would pay its sales representatives “based on their technical knowledge, the quality of service they provided to clients to improve patient care, and the company’s business performance.” (What a novel idea, compensation based on quality!) There was nothing in Thomas’ article to suggest that GSK made these changes based upon the ongoing investigations in China. Indeed, a company spokesman interviewed for the NYT article “declined to comment on the investigation because he said it was still underway.” However the timing of such changes and the fact that it seemed to apply more fully to GSK operations outside the US, would make the timing of the changes certainly appear less than coincidental.

In addition to the obvious conflict of interest, which apparently is an industry wide conflict because multiple companies have engaged in these tactics, there is also clearly the opportunity for abuse leading to allegations of illegal bribery and corruption. Indeed one of the key bribery schemes alleged to have been used by GSK in China was to pay doctors, hospital administrators and other government officials, bonuses based upon the amount of GSK pharmaceutical products which they may have prescribed to patients. But with this new program in place, perhaps GSK may have “removed the incentive to do anything inappropriate.”

This new program by GSK demonstrates that companies can make substantive changes in compensation, which promote not only better compliance but also promote better business relationship. A company spokesman interviewed for Thomas’ piece noted that the changes which GSK will make abroad had already been made in the US and because of these changes, “the experience in the United states had been positive and had improved relationships with doctors and medical institutions.”

For the compliance practitioner, one of the lessons from the GSK scandal is to look not only at the amount of compensation paid but how it was paid. If there is a way to remove or even help to remove “the incentive to do anything appropriate” it certainly can be positive for the company and positive for your overall compliance efforts.

You might also fire up the DVD player over this holiday season for a Joan Fontaine double shot of Hitchcock.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

November 7, 2013

Does Motive Matter in Anti-Bribery and Anti-Corruption Enforcement?

Do the intentions behind enforcement of domestic or international anti-corruption laws matter? Or is ‘the law the law’ and it really does not matter what a government’s motives are in enforcing laws that it has on the books. That question comes up for discussion from time-to-time. Some believe that motives and intentions do matter; others believe that enforcement of existing laws are motive and intention enough. This subject has been raised over the past several months in connection with the Chinese government and their anti-corruption enforcement efforts against western companies as exemplified by the GlaxoSmithKline PLC (GSK) enforcement action, announced last summer.

Trying to understand the motives of the Chinese Communist Party and the Chinese government have long been a subject for Americans. China watchers have pontificated and speculated for many years. I am not sure that the true motives are ever clear to us westerners. But simply because we may not always understand them does not mean that we cannot consider them, particularly now that China is so opened up to western businesses which desire to garner a part of the market share in a country with the world’s largest population.

This subject was explored in a recent Financial Times (FT) piece, entitled “China: Red restoration”. The article began with a short discussion about a recent meeting held by the President of China, Xi Jinping, with several prominent leader of western businesses; including Mike Duke, President and Chief Executive Officer (CEO) of Wal-Mart, Indra Nooyi, Chairman and CEO of PepsiCo., Muhat Kent, Chairman and CEO of Coca-Cola, David Rubenstein, co-founder of The Carlyle Group, and Maurice Greenberg, the former Chairman and CEO of American International Group (AIG). As reported by the FT, President Xi told the group, “Your suggestions are a very important source of inspiration for the Chinese government.” The FT believes that this statement and others made by President Xi “were intended to signal that the world’s second largest economy remains open for business.”

Contrast that last statement with what has happened to GSK over the past several months. Company executives have been arrested or detained; passports have been pulled so that company executives could not leave the country; company executives have been paraded in front of state television cameras to confess wrongdoings; a high company official went to China and publicly apologized for the company’s conduct. All of this from a company that was already under a Deferred Prosecution Agreement (DPA) in the United States for fraudulent conduct in marketing certain pharmaceuticals. Moving it from a compliance to a business perspective, the FT noted that GSK “recently revealed that its medicine and vaccine sales had fallen 61 per cent in the third quarter from a year earlier”. Talk about taking it ‘in the wallet’.

However GSK is not the only company to come under Chinese regulatory scrutiny for allegations of bribery and corruption. Since July approximately 15 western companies have heard their corporate names listed as being under investigation. These companies range from other pharmaceuticals, to baby-food and formula companies, as well as others in health care and medical products and supplies. Beyond these anti-corruption investigations, other companies have felt the heat from Chinese regulators. Apple CEO Tim Cook was forced to publicly apologize over poor customer service and “to promise to improve customer services policies.” The German car manufacturer Volkswagen was required to recall over 380,000 vehicles in China after media reports surfaced that they were “unsafe”. Still other companies faced media criticism which led reduced sales. For instance, stories in the media surfaced about Kentucky Fried Chicken (KFC) and food safety issues which led to a 10 per cent slump in sales.

The FT article noted that there may be several motives for these actions against western companies. One is obviously a strain of nationalism which holds that such markets should belong to Chinese enterprises. Bao Dike, managing editor of the PKU Business Review, summed up this view when he was quoted as saying “they also show how China doesn’t need these foreign enterprises any more”. Kerry Brown, Professor of Chinese Politics at Sydney University, was quoted as saying, “Politically it is also a very easy populist move to beat up on foreign companies; much easier than taking on big Chinese companies and their powerful backers.”

Another motive might be what is termed “killing the chicken to scare the monkey.” Under this motivation, Chinese regulators are investigating western companies in order to send a message to the entire market about pricing and competition. The FT stated, “they intend to clean up things in order to provide quality products at reasonable prices in industries about which the public is concerned.” The Chinese public was certainly concerned about the prices it was paying for pharmaceutical products and one response may have been for the Chinese to investigate, in a very public way, GSK. The same holds true for the makers of baby-formula and milk-powder makers. Li Huafang, an independent economist and newspaper columnist, was quoted as saying “I actually think the new administration wants to strengthen regulations for both foreign and domestic businesses.” Or as Peter Gabriel might say “Shock the Monkey”.

The final motive discussed in the FT article was that of consolidation of power by the new President, Xi Jinping. Wang Lixiong, a prominent political writer, said that “The rough treatment of some foreign businesses stems from Mr. Xi’s need to establish his authority; to impose his will; this is a very common tactic among new rulers. We need to wait until he has consolidated power to see what his real intentions are.”

All of this tells me that western companies need to factor all of the above into their risk assessments when deciding whether to engage in business in China. This is a broader risk assessment than you would normally do for anti-corruption such as under the Foreign Corrupt Practices Act (FCPA). This is a political risk assessment. But the key is that you look at your risks and measure them. The FT ends its article by noting that it appears that President Xi is still welcoming western businesses to China, and said, “As long as they can show that their investments and operations in China support or at least do not get in the way of efforts to garner support for the party and its leadership, they will probably be allowed to stay and even thrive.”

For a western company, from an anti-corruption perspective, this clearly means you need to investigate your Chinese operations now. If you detect problems, you should work expeditiously to remedy them now. The FT article makes clear that whatever the motivations of the Chinese regulators are; if you are in violation of Chinese domestic laws regarding bribery and corruption, your experiences could well be costly and the reputational damage immense.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

October 14, 2013

1066 and All That: Why The International Fight Against Corruption?

Filed under: Corruption in China,FCPA,Financial Times,GlaxoSmithKline — tfoxlaw @ 1:01 am

If there is one event in history of Western Civilization which could be said to be a true turning point, today is the anniversary of one of the very top echelon. On this date in 1066, William the Conqueror defeated Harold II, King of England, near the town of Hastings, on the English south coast. On Christmas Day, 1066, William was crowned the first Norman King of England, in Westminster Abbey, and the Anglo-Saxon phase of English history came to an end. The French language became the dialect of the King’s court and gradually mixed with the Anglo-Saxon tongue to give birth to modern English. This date was the last time that a European Continental power successfully invaded England. Why did William invade England? He claimed he was promised the crown by his cousin, Edward the Confessor.

I was reminded again this weekend that in the arena of the global fight against bribery and corruption, I believe that the GlaxoSmithKline PLC (GSK) matter in China will be a true game changer. An article in the Financial Times (FT), entitled “Net closes of former security chief as China cracks down on corruption”, focused on the tightening circle around Zhou Yongkang, a former member of China’s Politburo Standing Committee (PSC) and Secretary of the Politics and Law Committee. In this role he was “the domestic security tsar, in charge of spy and security agencies, as well as China’s paramilitary forces, police, judges, courts, and lawyers.” In other words, he was about as connected as one could be in China. Yet, he has fallen from the Chinese Communist Party’s top hierarchy.

But, equally importantly for the fight against international bribery and corruption, both close family members of Yongkang and former close associates have been arrested or have come under investigation for bribery and corruption. Yongkang rose to power through China’s petroleum industry, having been the head of the Energy Group of the Chinese National Petroleum Company (CNPC). Officials at CNPC have been arrested or are under investigation. Officials at several other state owned energy concerns, businesses in the travel, telecommunications, real estate and liquor industries have been either arrested, detained or are under investigation for bribery and corruption.

Some have questioned the motives for China’s crackdown against western companies over bribery and corruption, as exemplified by the GSK matter. I believe that the crackdown is a part of the Chinese government’s wider fight against internal corruption, as laid out in the article about the downfall of Yongkang. In another FT article, entitled “China dream sours for foreign companies”, Tom Mitchell wrote that “The “Chinese dream” articulated by China’s new president, Xi Jinping, is fast becoming a nightmare for some of the world’s most powerful corporations.” This is because “since then, government investigations and state media exposés targeting foreign investors have become a regular feature of the country’s business landscape.” Mitchell reported that some western executives “complain that foreign groups appear to be encountering particularly heavy scrutiny under the new leadership.” That complaint might certainly be considered by GSK about now as they have become the poster child for Chinese enforcement of its own internal anti-bribery legislation.

One of the things that compliance practitioners should not lose sight of in the ongoing bribery and corruption investigation of GSK is that the investigation, detentions and arrests all involve allegations of violations of Chinese law, not the US Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. And while prosecution and even indictment or arrest under the FCPA or Bribery Act could not be termed a pleasant experience, I am relatively certain that it would pale in comparison to indictment or arrest under the applicable Chinese law prohibiting bribery of Chinese officials.

I think that this portends a significant shift for US, UK or other western companies doing business in China. In a recent client alert, entitled “Recent Developments in Chinese Antibribery Laws and Enforcement”, the law firm of Akin Gump Strauss Hauer & Feld LLP, wrote that “The recent, very public crackdowns against alleged bribery activities by foreign firms, however, should be seen in a broader historical context and as a manifestation of developments in the legal arena that have been taking place over some time.” This is because Chinese officials had previously focused on prosecution of bribe recipients, not the bribe payers. They noted that “Chinese laws against bribery can be found in the PRC Criminal Law, first promulgated in 1997. Importantly, in contrast to bribery laws in many other jurisdictions, the Chinese law applies only to the actual giving of a bribe, not to the offering of one; there is no law against attempted bribery in China. In contrast to the FCPA, the rules in China apply to bribing private individuals and entities, not just government officials.”

I believe that the Chinese motivation in the GSK matter must been seen as one part of this larger fight against bribery and corruption. This is simply more than one country pointing its finger at the outside business interest and claiming it is the bad western businessmen corrupting the locals through huge bribes. From the information that is coming out of China, it appears that China is using a multi-pronged attack against bribery and corruption and that going after the bribe-payers is but one part, albeit a new part, for China. This does not lessen the message for western companies currently doing business in China to review their own operations to see if they have any problems similar to those which have beset GSK and take remedial action as appropriate. But I do not see this current effort by Chinese authorities as an anti-American, anti-British (GSK is a UK entity) or anti-western backlash. The motivation seems to be the fight against bribery and corruption of which western businesses paying bribes in China is but one component.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

October 2, 2013

SCCE Guidance on Compliance Program Incentives

SCCENext week the Society of Corporate Compliance and Ethics (SCCE) will hold its annual conference in Washington DC. It is one of the top national conferences in compliance and ethics around. Together with K&L Gates LLP partner Amy Sommers I will be speaking on the recent GlaskoSmithKline PLC (GSK) corruption enforcement action in China and its implication for the compliance practitioner. I hope that you are planning to attend and if you are going to be in attendance that you will drop by the session Amy and I are leading.

Last week I interviewed Roy Snell, SCCE Chief Executive Officer (CEO), for my FCPA Compliance and Ethics Report podcast, which can be found here or on iTunes. One of the things that we discussed was membership in the SCCE and some of the benefits that it brings. I believe one of the best items that the SCCE offer is the Complete Compliance and Ethics Manual (the Manual). This is a one volume compendium of all things that the compliance practitioner might need in his or her practice. It is updated quarterly with CD supplements mailed to you.

One of the questions that I am regularly asked is how a company can create incentives to do business in compliance with the Foreign Corrupt Practices Act (FCPA) juxtaposed with the discipline that the FCPA Guidance suggests that every effective compliance program should maintain. An article in the Manual, entitled “Ideas for Using Incentives in Compliance and Ethics Programs”, presents some of the SCCE’s best ideas related to incentives, evaluations and rewards for compliance programs, they are as follows:

  • Departments would nominate people who exemplify the integrity program; a board level committee would select the best and give the winner free, preferential parking for a year.
  • Provide as a reward a pin or other visible emblem. When the employee accumulates enough points, they can turn in the emblem for gifts or time off.
  • Rewards could include two season basketball tickets or free lunch passes.
  • Have a “dinner with the CEO” as recognition.
  • Have the annual compliance and ethics award winner flown in to the shareholders’ annual meeting with the award presented there.
  • Audit findings should include positive findings regarding compliance & ethics activities; these could be shared in a newsletter.
  • The compliance committee could select the department or work group that best exemplifies compliance & ethics. Measures could include such things as completing training on time, code of conduct attestations done on time, best personnel evaluations, etc. The reward could be a lunch for the department.
  • Managers with the best compliance & ethics records could be awarded free tuition and expenses to attend a compliance academy and/or to get certified in compliance & ethics.
  • Make compliance & ethics certification (CHC, CCEP) a condition for promotion to senior management positions.
  • Reward employees for making recommendations and suggestions to improve the company’s compliance & ethics program.
  • Provide rewards and recognition for those who conduct self-audits and share the findings and lessons learned.
  • Require a compliance comprehension test as an adjunct to regular annual evaluations. A 100% score would be an added 1% pay increase on top of the usual incentives. 80% =.8, 70% = .7, less would equal zero.
  • Provide an incentive for reports to the helpline or otherwise to the compliance and ethics office that help avoid noncompliance or identify actual problems that are system errors. This would only be for reports about systems, but not about people, to avoid a bounty-hunter environment.
  • Make attendance at compliance training a mandatory condition for being in any responsible position.
  • Award organization-wide recognition if the compliance & ethics program overall gets a high score, e.g., time off for all employees.
  • Provide an incentive for all division and unit compliance and ethics officers to get training and certification (CHC, CCEP).
  • Performance indicators could be linked to a compliance plan. This could include timely submissions of required regulatory filings, on-time completion of compliance training, etc.
  • Provide on-the-spot recognition by peers/supervisors with certificates (“compliance bucks”) for behavior promoting compliance and ethics that can be redeemed for company merchandise.
  • Give $50 for any submissions to the company newsletter relating to compliance and ethics that are published.
  • Have a compliance and ethics courage award, e.g., for turning down a choice vacation trip from a vendor.
  • Have a system for compliance & ethics points or “president’s points” in small incremental amounts awarded based on performance during the month, quarter or year. The points would be totaled for each time period, with recognition for those receiving a certain number of reward points.
  • Senior leaders ask employees compliance and ethics questions on the spot; those who answer correctly get free movie tickets.

At the end of the day, not only are incentives necessary in a program, but they also help a company put a more positive face on its compliance program. Compliance and ethics should not simply be about enforcing laws, rules and regulations. Recognition of employees in companies who do well and conduct business ethically is an important step and employees should be recognized for showing ethical leadership, this means not just rewarding those at the top but anyone in the organization. I hope that these suggestions from the SCCE Manual will help to generate some ideas of your own.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

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