FCPA Compliance and Ethics Blog

October 31, 2014

The Great Pumpkin and the Alternative Universe

Pumpkin Patch 1For Halloween last year, I wrote a blog post where I derided Linus and his forlorn quest to have his pumpkin patch named the most sincere by the Great Pumpkin. In response I received this rather terse message from my colleague Doug Cornelius:

Are you trying to say that the Great Pumpkin is not real? 

Just wait ’til next year, Tom Fox. You’ll see! 

Next year at this same time, I’ll find a pumpkin patch that is real sincere! And I’ll sit in that pumpkin patch until the Great Pumpkin appears. He’ll rise out of that pumpkin patch and he’ll fly through the air with his bag of toys. 

The Great Pumpkin will appear! And I’ll be waiting for him! 

I’ll be there! I’ll be sitting there in that pumpkin patch… and I’ll see the Great Pumpkin. Just wait and see, Tom Fox. I’ll see that Great Pumpkin. 

I’ll SEE the Great Pumpkin! 

Just you wait, Tom Fox. 

If Doug Cornelius, who is always right about the Patriots and most everything else, sends me such a scathing note, I thought he must also be right about the Great Pumpkin as well. So this year, I am in the same running with Linus to have the most sincere pumpkin patch and the picture you see in the corner is one that I have adopted as my own. It certainly looks sincere to me.

I thought about my new-found wisdom, appreciation of the Great Pumpkin and the sincerity of my pumpkin patch when I read a recent article in the New York Times (NYT) DealB%k column, entitled “In Turnabout, Former Top Regulators Assail Wall Street Watchdogs”, by Jesse Eisinger, where he reported on his visit to an “alternative universe” populated by former top Department of Justice (DOJ) and Securities and Exchange Commission (SEC) officials who have all now joined the private sector and are white collar defense lawyers. This alternative universe was facilitated through the Bruce Carton’s recenetly held 2014 Securities Enforcement Forum, where the ‘Director’s Panel had the following luminaries: “Robert Khuzami, President Obama’s first enforcement director who now plies his trade at Kirkland & Ellis; Linda Chatman Thomspen, who served as the George W. Bush-era S.E.C. and now works for Davis Polk & Wardell; William R. McLucas, the long-serving agency enforcement director who is now at WilmerHale; and George S. Canellos, who just left the Obama S.E.C. for Milbank Tweed. (The well-known Stanley S. Sporkin, who served the agency in the 1970s, rounded the panel out.)” All had served as Directors of the SEC. Current SEC enforcement director Andrew Ceresney chaired this “alternative universe” panel.

Why was this an “alternative universe”? These former regulators complained that the SEC is being too tough on their clients and indeed other regulators are being unfair to large banks! As reported by Eisinger, “The conference turned into a free-for-all of high-powered and influential white-collar defense lawyers hammering regulators on how unfair they have been to their clients, some of America’s largest financial companies.” I am also certain that they were SHOCKED, SHOCKED to find that gambling occurred in Rick’s Café American.

What were some of the criticisms from this “alternative universe”? First and foremost was aggressive SEC enforcement specifically focused on the ‘broken windows’ theory to corporate crime. The panel’s luminaries “argued that the commission has focused too much on smaller infractions”. Too bad the Layne Christensen Foreign Corrupt Practices Act (FCPA) SEC enforcement action had not come out before this conference; imagine how much fun the panel would have with a $4 reference as the amount of a bribe payment to show nefarious conduct. Nothing speaks to sincerity like strictly enforcing the law.

The next criticism was over the SEC moving towards “administrative proceedings to push its cases”. Eisinger said, “The critics liken it to getting a hometown judge instead of putting cases to the test of judges and juries.” But he went on to note that these same banks require customers and others go to arbitration to resolve disputes and the arbitrators on these panels are usually ex-financial sector employees. Oops. I guess what is good for the goose is not good for the gander or as Eisinger said, “When the government does it, they scream foul.” I would certainly point out to the Great Pumpkin that it is certainly sincere to argue that you should receive better treatment than your customers.

The next series of complaints was leveled by Brad S. Karp, the chairman of Paul, Weiss, which centered on the fact that the banks had to navigate many different types of regulators such as the SEC, DOJ, state attorneys general, the New York state financial regulator and others. Boy that sure seems unfair, I mean banks are like the most sincere pumpkin patches around, they want to do business in all those locations but they do not seem to want oversight in all the places they do business. I wonder what these same defense lawyers would same about domestic enforcement of the FCPA and other countries enforcement of their own domestic anti-bribery/anti-corruption laws? For a hint they might want to purchase a copy of my eBook GSK in China. I guess the message here is that there are lots of very sincere pumpkin patches across the world and the Great Pumpkin really has a hard time figuring out which one is the most sincere. Santa Claus has a comparatively much easier job with simple Nice and Naughty lists.

Interestingly Karp also expounded on some of the defense tactics that he uses when the government comes knocking. “First, he pushes to move the charges to a subsidiary. Second, he tries to lower the charge. Third, he said, he focuses “on the powerful individuals in an organization” meaning that lawyers need to put top management first as they prepare a defense.” Does that sound like the results of any FCPA enforcement actions you might have read about lately? Certainly nothing but sincerity in those defense tactics.

However, you cannot argue with the results achieved by this star-studded cast of former government prosecutors in defense of their clients. Eisinger stated, “These strategies have been employed to glittering success. The guilty pleas and admissions have been largely by subsidiaries or been rendered toothless. Entities have admitted to charges that were narrow or unspecific and did not open them up to further private litigation. And, of course, no powerful individuals at any of the large, fine-paying companies have been criminally charged.” Once again, does that sound like the results of any FCPA enforcement actions you might have read about lately? Certainly nothing but sincerity in those defense results.

And finally for all those who decry the ‘revolving door’ of government prosecutors going out into the private sector and being too soft in defense of their clients because, you know, they used to enforce the same laws; Eisinger ended his piece with a dismantling of that argument. He wrote, “Former top officials, whose portraits mount the walls, weigh in on matters of enforcement. Now working for the private sector, they assail regulatory “overreach”…And given what they say in public imagine what goes on behind closed doors.” As a lawyer, I can proudly attest to that kind of sincerity, you sincerely represent the one who pays your bills!

As I near the end of this Halloween piece I fear I have come to the realization that my adopted pumpkin patch may not be the most sincere in the US, let alone the planet. I also fear that once again this year Linus may not be awarded with the one piece of recognition he so earnestly desires as well. I think that the Great Pumpkin will most probably find that the recent 2014 Securities Enforcement Forum where “The conference turned into a free-for-all of high-powered and influential white-collar defense laws hammering the regulators on how unfair they have been to their clients” is certainly the most “sincere” Pumpkin Patch on the planet this year. If you are sitting outside tonight you might well see the Great Pumpkin himself in this “alternative universe”.

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

October 29, 2014

Doing Compliance-The Book

Doing ComplianceI have consistently tried to bring a ‘Nuts and Bolts’ approach to my writing about compliance. Last year when describing some of my writing on the building blocks of a Foreign Corrupt Practices Act (FCPA) compliance program to my friend Mary Flood, she said “That’s great but what about actually doing compliance?” Fortunately for me, she did not ask how as there is no telling just how much hot water answering that question would have gotten me into! Her idea about writing a book which a compliance practitioner could use as a one-volume reference for the everyday work of anti-corruption compliance was the genesis of my most recent hardbound book, Doing Compliance: Design, Create, and Implement an Effective Anti-Corruption Compliance Program. I am pleased to announce that the book is hot off the presses and now available for purchase through Compliance Week in the US and Ark Publishing in the UK.

Just as the world becomes more flat for business and commercial operations, it is also becoming so for anti-corruption and anti-bribery enforcement. Any company that does business internationally must be ready to deal with a business environment with these new realities. My book is designed to be a one-volume work which will give to you some of the basics of creating and maintaining an anti-corruption and anti-bribery compliance program which will meet any business climate you face across the globe. I have based my discussion of a best practices compliance program on what the Criminal Division of the US Department of Justice (DOJ) and Enforcement Division of the Securities and Exchange Commission (SEC) set out in their jointly produced “FCPA - A Resource Guide to the U.S. Foreign Corrupt Practices Act”, the FCPA Guidance, the ‘Ten Hallmarks of an Effective Compliance Program.” The FCPA Guidance wisely made clear that there is no ‘one-size-fits-all’ approach when it stated, “Individual companies may have different compliance needs depending on their size and the particular risks associated with their businesses, among other factors.” Thus, the book is written to provide insight into the aspects of compliance programs that DOJ and SEC assesses, recognizing that companies may consider a variety of factors when making their own determination of what is appropriate for their specific business needs.

This book does not discuss the underlying basis of the FCPA, the UK Bribery Act or any other anti-corruption or anti-bribery legislation. I have assumed the reader will have a modicum of knowledge of these laws. If not, there are several excellent works, which can provide that framework. The book is about doing business in compliance with these laws. As with all Americans, I appreciate any list that is deca-based, so the format of 10 hallmarks resonates with me. I have used this basic ten-part organization in laying out what I think you should consider in your anti-corruption and anti-bribery compliance program. In addition to presenting my own views in these areas, I also set out the views of both FCPA practitioners and commentators from other areas of business study and review. The book includes the following:

Chapter 1 - Where It All Begins: Commitment from Senior Management and a Clearly Articulated Policy against Corruption  It all begins at the Top, what should management say and do? ‘Tone at the Top’ is a great buzz word but how does a company truly get the message of compliance down through the ranks? This chapter discusses the techniques management can use to move the message of compliance down through middle management and into the lower ranks of the company.

Chapter 2 - Some Written Controls: Code of Conduct and Compliance Policies and Procedures  The Cornerstone of your anti-bribery/anti-corruption compliance program is set out in your written standards and internal controls which consist of a Code of Conduct, Compliance Policy and implementing Procedures. This chapter discusses what should be in the written basics of your compliance program and how best to implement these controls.

Chapter 3 - For the CCO: Oversight, Autonomy, and Resources The role and function of a Chief Compliance Officer (CCO) in any compliant organization cannot be overstated. Simply naming a CCO is no longer enough to meet even the minimum requirements of best practices. One of the key areas that the DOJ will review is how is a CCO allowed to fulfill his role. Does the position have adequate resources? Does it have autonomy and support in the corporate environment? Does the Board of Directors exercise appropriate oversight? This chapter reviews the Compliance Function, Oversight, Autonomy and Resources and relates structuring the compliance function in an organization.

Chapter 4 - The Cornerstone of Your Compliance Program: Risk Assessment It all begins here, as a risk assessment is the road map to managing your compliance risk. The implementation of an effective compliance program is more than simply following a set of accounting rules or providing effective training. Compliance issues can touch many areas of your business and you need to know not only what your highest risks are, but where to marshal your efforts in moving forward. A risk assessment is designed to provide a big picture of your overall compliance obligations and then identify areas of high risk so that you can prioritize your resources to tackle these high-risk areas first. This chapter discusses what risks you should assess, the process for doing so and using that information going forward.

Chapter 5 - Getting Out on the Road: Training and Continuing Advice Once you have designed and implemented your compliance program, the real work begins and you must provide training on the compliance program and continuing advice to your company thereafter. This means that another pillar of a strong compliance program is properly training company officers, employees, and third parties on relevant laws, regulations, corporate policies, and prohibited conduct. However merely conducting training usually is not enough. Enforcement officials want to be certain the messages in the training actually get through to employees. The expectations for effectiveness are measured by who a company trains, how the training is conducted, and how often training occurs. This chapter discusses getting the message of compliance out to your employees.

Chapter 6 - Do As I Do & As I Say: Incentives and Disciplinary Measures Any effective compliance program will use a variety of tools to help ensure that it is followed. This means that you must employ both the carrot of incentives and the stick of disciplinary measures to further compliance. How can you burn compliance into the DNA of your company? Discipline has long been recognized as an important aspect of a compliance regime but more is now required. This chapter relates structuring compliance into the fabric of your company through hiring, promotion of personnel committed to compliance and how to reward them for doing business ethically and in compliance with the FCPA.

Chapter 7 – Your Greatest Source of FCPA Exposure: Third Parties and How to Manage the Risk Third Parties are universally recognized as the highest risk in any compliance program. Indeed it is estimated that well over 90% of all FCPA enforcement actions involve third parties. Therefore it is important how to manage this highest risk for an anti-corruption program. This chapter provides a five-step process for the investigation and management of any third party relationship; from agents in the sales chain to vendors in the supply chain.

Chapter 8 – How Do I Love Thee: Confidential Reporting and Internal Investigations In any company, your best source about not only the effectiveness of your compliance program but any violations are your own employees. This means that you must design and implement a system of confidential reporting to get your employees to identify issues and then have an effective internal investigation of any issues brought to your attention. Your own employees can be your best source of information to prevent a compliance issue from becoming a FCPA violation. This chapter provides the best practices for setting up internal reporting and investigating claims of compliance violations.

Chapter 9 - How to Get Better: Improvement: Periodic Testing and Review Once you have everything up and running you still need to not only periodically oil but also update the machinery of compliance. You do this through the step of continuous improvement, which is the use of monitoring and auditing to review and enhance your compliance regime going forward. A company should focus on whether employees are staying with the compliance program. Even after all the important ethical messages from management have been communicated to the appropriate audiences and key standards and controls are in place, there should still be a question of whether the company’s employees are adhering to the compliance program.

Chapter 10 - Should I or Shouldn’t I? Mergers and Acquisitions The last thing you want to bring in through an acquisition is another company’s FCPA violation for which your company must pay the piper; also known as buying a FCPA violation. Effectively managing your mergers and acquisitions (M&A) process can help you to identify risk areas in a potential acquisition and then remediate any issues in the post-acquisition integration phase. This chapter gives you the most recent pronouncements on how to avoid FCPA exposure in this key area of corporate growth and to use the M&A function to proactively manage compliance.

Chapter 11 – A Few Words about Facilitation Payments One of the key differences between the US FCPA and UK Bribery Act is that the US law allows facilitation payments. However, in today’s interconnected world, to allow one part of your company to make facilitation payments while UK subsidiaries or others covered by the UK Bribery Act are exempted out from your standard on facilitation payments has become an administrative nightmare. This chapter explores what is a facilitation payment, how the policing of your internal policy has become more difficult and some companies which have been investigated regarding their facilitation payments. It also provides guidelines for you to follow should your company decide to allow them going forward.

So with thanks to Mary Flood for the idea, Matt Kelly, the Editor of Compliance Week for the publishing platform and Helen Roche & Laura Slater and the rest of the team at Ark Publishing for getting me through the publishing process in a professional manner, I am published to announce that Doing Compliance: How to Design, Create, and Implement an Effective Anti-Corruption Compliance Program is now available for purchase.

You can purchase a copy of Doing Compliance: How to Design, Create, and Implement an Effective Anti-Corruption Compliance Program in the US by clicking here. You can purchase a copy of Doing Compliance: How to Design, Create, and Implement an Effective Anti-Corruption Compliance Program in the UK by clicking here.

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

October 27, 2014

Critiquing FCPA Enforcement and the GSK Domestic Corruption Conviction

Lady Scales of JusticeRecently the FCPA Professor posted a blog, entitled “Look in the Mirror Moments, in which he used written commentary by the US Secretary of the Treasury to the Chinese government about the Chinese governments anti-trust investigations as a mechanism to explore critiques of Foreign Corrupt Practices Act (FCPA) enforcement. In this post, he compared certain aspects of FCPA enforcement to the Chinese corruption enforcement action against GlaxoSmithKline PLC (GSK). Leaving aside the differences in anti-trust enforcement (price-fixing, monopolistic behavior and illegal collusion) and anti-corruption enforcement (bribery), I wanted to review his critiques through the prism of the known facts of the GSK enforcement action.

The FCPA Professor had the following comments about FCPA enforcement, in comparison with the Chinese corruption enforcement action against GSK. He said,

Without in any way trying to comprehensively compare the overall U.S. legal system to the overall Chinese legal system, the following attributes of FCPA enforcement must at least be acknowledged. 

The vast majority of corporate FCPA enforcement actions lack transparency and the resolution documents (whether a non-prosecution agreement, deferred prosecution agreement or civil administrative order) are the result of an opaque process ultimately controlled by the same office prosecuting or bringing the action. 

As to the swiftness of FCPA enforcement actions, one can only assume that the majority of general counsels and board of directors of companies under FCPA scrutiny would be jumping for joy if the scrutiny – from start to finish – would resolve itself in 15 months rather than the typical 3-5 years (and in some instances more) of FCPA scrutiny lingering.”

The difficulty I have with both of these points is that one cannot separate the Chinese enforcement action against GSK from the Chinese legal system that produced it. Let’s start with the ‘jumping for joy’ prong. The initial difference to note is that the Chinese enforcement action was a domestic prosecution based upon Chinese domestic law for bribery and corruption of Chinese. It was not a US (or UK) company violating US (or UK) laws. This means that the relevant documents and witness were in the locality where the investigation was performed. Even when a key witness, GSK China Country Manager Mark Reilly was in the UK, he voluntarily returned to China to give evidence but was prevented from leaving the country without being charged with a crime. So as far as is known, there were no government-to-government requests for information, no Letters Rogatory or use of any other international discovery mechanism to obtain evidence.

Moreover, the procedural protections in place under US (and UK) criminal procedure simply do not exist in China. There is no right to counsel, no right against self-incrimination, no right to confront witness and not even a right to know what the charges against you might be. These lack of rights were certainly borne out in the speed in which the Chinese investigative authorities were able to obtain evidence and public confessions from GSK principals involved in the bribery and corruption. The first 30-day timeline of the GSK investigation went as follows:

  • June 28, 2013 – Local Police announced they have place GSK officials under investigation for economic crimes.
  • July 11, 2013 – Public Security Ministry issued statement accusing GSK of bribery.
  • July 15 , 2013 – Four senior company execs ‘detained’. Finance chief barred from leaving country.
  • July 16, 2013 – GSK General Counsel (GC) placed under ‘house arrest’ along with 30 other employees. One of the four GSK China executives who were detained, admited to bribery allegations on Chinese state television.
  • July 22, 2013 – GSK formally apologized for breaking Chinese law regarding domestic bribery and corruption.
  • July 26, 2013 – Peter Humphrey, a UK citizen and his wife, a naturalized US citizen, both hired by GSK in an ancillary matter related to the GSK corruption scandal were arrested but not told of the charges against them.

A little over one year later, in July, 2014 the trial of Humphrey and his wife was announced. Orignially it was to be held in secret with both Humphrey and his wife still not told of the formal charges against them. However after diplomatic protests by both the US and UK governments, Humphrey and his wife were both convicted and sentenced in an open trial, albeit lasting only one day, on August 8, 2014. The charges against them were announced at trial. Thereafter, GSK pled guilty in a secret one-day trial GSK was fined approximately $491MM and China Country Manager Mark Reilly and four other GSK China business unit executives were found gulity. They were all sentenced to jail but given suspended sentences.

How did the Chinese government develop its evidence so quickly? One of the defendant’s, admitted, on state run televison, his involvement in the bribery scheme only 18 days after the investigation was announced by Chinese authorities. Indeed, GSK itself made a public apology only 24 days after the announcement by the Chinese authorities it was under investigation. We now know that GSK was informed by a whistleblower of allegations of bribery and corruption as early as January 2013 yet in June GSK announced it had not found anything to substantiate these allegations.

I believe the answer is found in the differences in the Chinese and US legal systems. It all starts with the following: in China you are presumed guilty while in the US (and the UK), you are presumed innocent until proven guilty. In an article in the New York Times (NYT), entitled “Presumed Guilty in China’s War on Corruption”, Andrew Jacobs and Chris Buckley wrote that the “war on corruption often operates beyond the law in a secret realm of party-run agencies”. The process “Known as Shuanggui, it is a secretive, extralegal process that leaves detainees cutoff from lawyers, associates and relatives.” Moreover, even as a case moves through the Chinese criminal justice system, defendants’ counsel “have limited access to evidence, witnesses, and their clients.” It does not get any better when a defendant actually goes to court because “Lawyers say Chinese courts rarely allow them to call defense witnesses, while prosecutors frequently withhold cruical evidence.” Finally, of the 8,110 officials charged with corruption “in the first half of this year, 99.8 percent were convicted”. To this rather amazing trial court conviction rate, I would add the the prosecution does even better on appeal, never losing to a convicted defendant.

Does that sound like a system in which you would jump for joy if you were caught up in, even knowing that the time from announcment of investigation until 99.8% chance of conviction awaited you? Even if the government investigation only took 14 months? In the US, corporations have the same rights as individuals at trial; to cross-examine witness, to be made aware of the charges against it, those charges must be brought with specficity, right to counsel, right to an open trial and right to appeal. These rights are all enshrined in the US Constitution. Those rights are not present for individuals or corporations under Chinese law or jurisprudence.

But the FCPA Professor also critiqued the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) in FCPA enforcements with the following observation: The vast majority of corporate FCPA enforcement actions lack transparency and the resolution documents (whether a non-prosecution agreement, deferred prosecution agreement or civil administrative order) are the result of an opaque process ultimately controlled by the same office prosecuting or bringing the action.When a company enters into negotiation with the DOJ and SEC it is with legal counsel in tow. Even if we in the general public are not privy to these negotiations over the terms and conditions of enforcement actions I am confident that there is some give and take. Further, while I only have personal knowledge of one negotiation for the specific terms of a Deferred Prosecution Agreement (DPA), the lawyer representing the company made clear it was a negotiation. It was not a Diktat with sentencing simply pronounced by the DOJ. Does the office which handles the investigation also handle the settlement negotiation? Yes but that is what prosecutors do each and every day in every city, county, town, hamlet, state and federal jurisdiction in this country.

Just as it takes two to tango, it takes two to negotiate. The DOJ does not negotiate with itself. Another party is sitting across the table and that other party is the company involved in the FCPA investigation. Why is that company there in the room negotiating? Because the company has assessed its interest and determined that it would be better off settling than going to trial. This is in the face of DOJ failures in the trial court in the Gun Sting cases, the O’Shea trial and the trial court overturning the verdict in the Lindsey Manufacturing conviction. Simply because there is a negotiation between the DOJ and a private party does not make it some nefarious process, even if the prosecutors hold the upper hand.

As far as the fines and penalites, there has been nothing to suggest the basis of the $491MM fine assessed against GSK. That amount is a bit less than the amounts initially reported that GSK China paid out as bribes, somewhere over $500MM. At least in the US, there are the Sentence Guidelines which form some basis of the calculation. Of course there is always some prosecutorial discretion to lessen a fine or penalty below the suggested amount. We have seen that occur this year with the HP enforcement action and recently Asst. Attorney General Leslie Caldwell suggested that Alcoa could have been fined over $1bn for its conduct, while the actual fine was $384MM. It is appropriate for prosecutors to have such discretion.

While the DOJ is also critiqued that DPAs (and Non-Prosecution Agreement [NPAs]) are essentially the same as going to trial with a near 100% success rate, I think this belies the number of declinations that the DOJs gives out. Unfortunately (and here the FCPA Professor and I do agree); there is not enough information given out about declinations; either regarding the raw numbers or the specific reasons for a declination. Only if a company agrees or is required to make such information public does it become known. Nevertheless, there is the recent example of Layne Christensen, which received a declination. In an article in Compliance Week, entitled “How Two Companies Got Regulators to Drop FCPA Charges”, Jaclyn Jaeger reported on the reasons the company sustained this result of receiving a declination through interviews with Christensen GC, Steve Crooke, its Chief Compliance Officer (CCO), Jennafer Watson and its outside counsel Russ Berland. Jaeger detailed the specific steps the company took and we can all see the effect it had upon the DOJ, through the declination to prosecute the company.

The debate about the costs of FCPA enforcement actions, the proper role of DPAs/NPAs and length of time of investigations is a healthy one and living in the open society that we have in the US, one that we will continue to have. Since I am not a prosecutor (or ex-prosecutor), I cannot look in the mirror at FCPA enforcement but I can review the facts of the DOJ and SEC’s FCPA enforcement, contrasted with the Chinese domestic bribery and corruption proseuction of GSK and believe that there is no basis for comparing the two systems, as they are so different in too many fundamental aspects.

I can however say one thing with absolute certainly; wherever you do want to be, a Chinese jail is not high on the list.

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

October 22, 2014

Right to Retire Or Termination: Remediation of Leadership To Foster Compliance

Fall of RomeMany historians have long given 476 AD as the date of the fall of the Roman Empire. Further, it was from this date forward that Europe began its long slide into the abyss, which came to be known as the Dark Age. However, this view was challenged in 1971 by Peter Brown, with the publication of his seminal work “The World of Late Antiquity”. One of the precepts of Brown’s work was to reinterpret the 3rd to 8th centuries not as simply a decline of the greatness that had been achieved in the heydays of the Roman Empire, but more on their own terms. It was in the year of 476 AD that the last Roman Emperor, Romulus Augustulus, left the capital of Rome in disgrace. However as Brown noted, he was not murdered or even thrown out but allowed to retire to his country estates, sent there by the conquers of the western half of the Roman Empire, the Goths. Not much conquering going on if a ruler is allowed to ‘retire’, it was certainly a replacement but not quite the picture of marauding barbarians at the gate.

I thought about this anomaly of retirement by a leader in the context where a company or other entity might be going through investigations for corruption and non-compliance with such laws as the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. Yesterday I wrote about three recent articles and what they showed about a company’s oversight of its foreign subsidiaries. Today I want to use these same articles to explore what a company’s response and even responsibility should be to remediate leadership under which the corruption occurs. The first was an article in the New York Times (NYT), entitled, “Another Scandal Hits Citigroup’s Moneymaking Mexican Division” by Michael Corkery and Jessica Silver-Greenberg. Their article spoke about the continuing travails of Citigroup’s Mexican subsidiary Banamex. Back in February, the company reported “a $400 million fraud involving the politically connected, but financially troubled, oil services firm Oceanografía.”

This has led Citigroup to ever so delicately try to oust the leader of its Mexico operations, Mr. Medina-Mora, by encouraging him to retire. While Citigroup did terminate 12 individuals around the Oceanografía scandal earlier in the year, it has not changed the employment status of the head of the Mexico business unit. This may be changing as the article said, “In a delicate dance, Citigroup is encouraging its Mexico chairman, Manuel Medina-Mora, 64, to retire, according to four people briefed on the matter. The bank has been quietly laying the groundwork for his departure, which could come by early next year, the people said. Still, Mr. Medina-Mora’s business acumen and connections to the country’s ruling elite have made him critical to the bank’s success in Mexico. Citigroup and its chairman, Michael E. O’Neill, cannot afford to alienate Mr. Medina-Mora and risk jeopardizing those relationships, these people said.”

Should Mr. Medina-Mora be allowed to retire? Should he even be required to retire? What about the ‘mints money’ aspect of the Mexican operations for Citigroup? Was any of that money minted through violations of the FCPA or other laws? What will the Department of Justice (DOJ) think of Citigroup’s response or perhaps even its attitude towards this very profitable business unit and Citigroup’s oversight, lax or other?

Does a company have to terminate employees who engage in corruption? Or can it allow senior executives to gracefully retire into the night with full pension and other golden parachute benefits intact? What if a company official “purposely manipulated appointment data, covered up problems, retaliated against whistle-blowers or who was involved in malfeasance that harmed veterans must be fired, rather than allowed to slip out the back door with a pension.” Or engaged in the following conduct, “had steered business toward her lover and to a favored contractor, then tried to “assassinate” the character of a colleague who attempted to stop the practice.” Finally, what if yet another company official directed company employees to “delete hundreds of appointments from records” during the pendency of an investigation?

All of the above quotes came from a second NYT article about a very different subject. In the piece, entitled “After Hospital Scandal, V.A. Official Jump Ship”, Dave Phillips reported that two of the four VA Administration executives who engaged in the above conduct and were selected for termination, had resigned before they could be formally terminated. The article reported that the VA “had no legal authority to stop” the employees from resigning. Current VA Secretary Robert McDonald was quoted in the article as saying, “It’s also very common in the private sector. When I was head of Procter & Gamble, it happened all the time, and it’s not a bad thing — it saves us time and rules out the possibility that these people could win an appeal and stick around.” Plus, he said, their records reflect that they were targeted for termination. “They can’t just go get a job at another agency,” Mr. McDonald said. “There will be nowhere to hide.”

The third article was in the Wall Street Journal (WSJ) and entitled, “GM Says Top Lawyer to Step Down”. In this piece, reporters John D. Stroll and Joseph B. White, with contributions from Chris Matthews and Joann Lublin, reported that General Motors (GM) General Counsel (GC) Michael Millikin will retire early next year. Milliken is famously the GC who claimed not to know what was going on in his own legal department around the group’s settlements of product liability claims of faulty ignition switches. Milliken claimed he was kept “in the dark” by his own lieutenants about the safety issues involved with this group of litigation. Does Milliken have any responsibility for the failures of GM around this safety issue? What does his apparent graceful retirement say about the corporate culture of GM and its desire to actually change anything in the light of its ongoing travails? Of course one might cynically point to GM’s failure to even have a Chief Ethics and Compliance Officer as evidence of the company’s attitude towards compliance and ethics. (I wonder how that might look to the DOJ/Securities and Exchange Commission (SEC) if GM goes under any FCPA scrutiny?)

With Citigroup, the Department of Veterans Affairs and GM, we have three separate excuses for companies (and a Cabinet level department) not disciplining top employees for ethical and/or compliance failures. At Citigroup, the excuse is apparently that it does not want to rock the boat from a top producing foreign subsidiary by terminating the head of the subsidiary under investigation. At the Department of Veterans Affairs, the excuse seems to be they can go ahead and resign because we prefer to get rid of them that way. At GM, it is not clear why the GC who claimed not to know what was going on in even his own law department can ride off into the sunset with nary a contrary word in sight. Millikin’s conduct would seem to be the product of a larger cultural issue at GM.

I thought about how the DOJ might look at these situations for companies if a FCPA claim were involved. Even with McDonald’s observations about what happened when he was with Procter & Gamble; does a company show something less than commitment to having a culture of compliance if it allows an employee to retire? What does it say about Citigroup and its culture given the current dance it is having with its head of the Mexico unit? What about GM and its Sgt. Schultz of a GC and his ‘I was in the dark posture’? As stated by Mike Volkov, in his post entitled “Goodbye Mr. Millikin: GM’s Continuing Culture Challenges”, GM does under appear to understand the situation it finds itself in currently over its failures. He wrote, “GM still does not understand the significance of its governance failure…GM should have taken dramatic and affirmative steps to create a new culture – resources and new initiatives should be launched to rid GM of its current culture and replace it with a new speak up culture. It is a daunting task in such a large company but it has to be done. Until GM wakes up, missteps and failures will continue.” One might say the same for Citigroup and the Department of Veterans Affairs as well.

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

October 21, 2014

Carlton Fisk, The Homer and Oversight of a Profitable Subsidiary

Fisk HomerToday we celebrate one of the great moments in World Series history. At approximately at 12:34 AM on this date in 1975, Carlton Fisk came to bat at the bottom of the 12th, in Game 6 of the World Series between the Boston Red Sox and Cincinnati Reds. He hit a pitch down the left field line. He stood at the plate, bouncing up and down and flailing at the ball as though he was helping an airplane land on a dark runway. “I was just wishing and hoping,” he said at a ceremony some years later. “Maybe, by doing it, you know, you ask something of somebody with a higher power. I like to think that if I didn’t wave, it would have gone foul.” Whether or not the waving was responsible, the ball bounced off of the bright-yellow foul pole above the Green Monster for a home run. Fenway’s organist played the Hallelujah Chorus from Handel’s Messiah while Fisk rounded the bases. One for the ages indeed as it appeared the Baseball Gods might finally be smiling on the Red Sox nation. Alas, they lost the next game and it was not to be for another 30 years.

I thought about Fisk’s homer and the ultimate heartbreak of Red Sox nation once again in 1975 when I read about several recent issues involving corruption and corporate responsibility for oversight, or perhaps more appropriately, the lack thereof. The first was an article in the New York Times (NYT), entitled “Another Scandal Hits Citigroup’s Moneymaking Mexican Division”, by Michael Corkery and Jessica Silver-Greenberg. Their article spoke about the continuing travails of Citigroup’s Mexican subsidiary Banamex. Back in February, the company revealed “a $400 million fraud involving the politically connected, but financially troubled, oil services firm Oceanografía.”

However, company investigators have unearthed another problem at the Mexico unit. The article reported “An internal investigation, begun by Citigroup in July, found evidence that the security unit was overcharging vendors and may have been taking kickbacks, a person briefed on the investigation said. The internal inquiry also found shell companies that had been set up to look like vendors and receive payments from the Banamex unit.” In a statement reported in the piece, Citigroup’s Chief Executive Officer (CEO) Michael L. Corbat “called the conduct of the individuals in the security unit ‘appalling’”.

What I found most interesting in the article was the response of Citigroup and what its implications might mean for the compliance practitioner, particularly one whose company is under scrutiny for a Foreign Corrupt Practices Act (FCPA) violation by the Department of Justice (DOJ) and Securities and Exchange Commission (SEC). The NYT piece made clear that the Mexico unit is so profitable that it figuratively “mints money” for the company. Moreover, “despite the latest headline-grabbing turmoil at Banamex, Citigroup does not want to cede any ground in Mexico where it dominates a large portion of the retail market.”

What is the responsibility for a US corporate parent when a foreign subsidiary ‘mints money’ for the company? Should the corporate parent pay closer attention to make sure the subsidiary is doing business in compliance with the FCPA and other relevant laws? In the past few posts, I have discussed some of the specific internal controls a compliance practitioner might consider for a company’s international operations. One of the problems Citigroup is facing with the conduct of its Mexico subsidiary is the company’s concern of “lax controls and oversight”. Moreover, there is concern that some part of the ongoing troubles in the Mexico unit relates to its head, Manuel Medina-Mora. Citigroup Chairman Michael O’Neill, was said to have “privately expressed concerns to board members that Mr. Medina-Mora, who is also co-president of the parent company, has not always relayed problems in the region to executives at the bank’s headquarters on Park Avenue, according to the people briefed on the matter. Instead of looping in executives in New York, Mr. Medina-Mora has at times chosen to handle the issues himself.”

How much oversight should a parent corporation have over a subsidiary? At a basic level it would seem that oversight should be enough to prevent and detect illegal conduct. Clearly, a Chief Compliance Officer (CCO) should be considering the entity-wide internal controls for a company. Under the FCPA accounting provisions, issuers can be held liable for the conduct of their foreign subsidiaries, even though the improper conduct occurred outside of the US. The scope of liability is based on the issuer’s incorporation of the subsidiary’s financial statements in its own records and SEC filings.

While a CCO should expect (and the DOJ & SEC for that matter) that internal controls at locations outside the US are of the same effectiveness as internal controls in US business units and at the US corporate office; unfortunately, that might not always be the case. It is often the case that corporate level internal controls are stronger than those in foreign business units. The Citigroup situation with its Mexican subsidiary would seem to be a clear example of the oft-cited reason that many companies were built through acquisitions, resulting in many business units (both in and outside the US) having completely different accounting and internal control systems than US corporate office. There is often a tendency to leave acquired companies in the state in which they were acquired, rather than trying to integrate their controls and conform them to those of current business units. After all, the reason for the acquisition was the profitability of the acquired company and nobody wants to be accused of negatively impacting profitability, especially one that ‘mints money’.

The second example is one a bit closer to home and it is that of the General Motors (GM) legal department. In an article in the Wall Street Journal (WSJ) entitled “GM Says Top Lawyer to Step Down”, John D. Stroll and Joseph B. White, with contributions from Christopher Matthews and Joann S. Lublin, reported that GM General Counsel (GC) Michael Millikin will retire early next year. Millikin was criticized after the GM internal investigation found that he ran the GM legal department in such a hands off manner that he did not know about his legal department’s own settlements for product liability claims involving faulty ignition switches until February of this year. His defense was that his own lawyers “left him in the dark” even though there was evidence that he had been repeatedly warned, “GM could face punitive damage awards related to its failure to address the safety defect.” Missouri Senator Claire McCaskill summed up sentiment about Milliken with her statement “This is either gross negligence or gross incompetence.” In other words if you are a GC or CCO you had better know what is going on in your own department. What would it say about a CCO who did not know that compliance department members were dealing with violations of the FCPA without informing him or her? It would say that the CCO failed to exercise leadership and oversight.

And while you are watching things closely, you may want to check out a clip of Carlton Fisk’s famous homer by clicking here.

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

October 20, 2014

Internal Controls Outside the US – Part IV

NavigatingThis post will conclude a short series I have presented on the issue of internal controls outside the US. I want to conclude by raising some ways in which a compliance professional can work to implement internal controls in a multi-national organization. As with my entire series on internal controls, I rely on internal controls expert Henry Mixon for guidance on this topic. 

Mixon advises that the first step is to convert your company’s Foreign Corrupt Practices Act (FCPA) risks into internal control objectives. The internal control objectives are then given to each business unit with instructions to develop controls, which meet the objectives. This process should allow more of a fine tuning approach within existing systems than the development of specific controls by corporate which all business units must adopt and will give the business unit a sense of buy-in and participation in the process.

Mixon provided an example of how the process might work in the situation where the FCPA risk is that a third party representative may be paid for an invoiced amount before that third party representative has gone through your company’s full third party approval process. Mixon began by noting that your control objective is that internal controls should be in place to ensure that no vendors are added to the vendor master file until the vendor has been approved. If your company has a sophisticated ERP system such as SAP where checks are generated using the vendor master file and signed by the computer, this control objective may be met by adding a field to the vendor master file in which inserts the date the vendor is approved and by programming such a requirement the vendor information cannot be inserted into the check to pay the vendor unless the designated fields are populated. There would also be manual controls over the input of the date to ensure the data is not entered inappropriately. These internal controls would translate into form for changes to the vendor master file which is initiated by the person in charge of vendor due diligence and requires a ‘second set of eyes’ requiring sign off by a second person, such as the controller. Through this mechanism you have created a primary control through your third party approval process and validated that process if a change is made.

What if your location or business unit involved does not have a sophisticated ERP system such as SAP, for instance at another location QuickBooks is used? Mixon suggests that the control objective could be satisfied by using a similar form for changes to the vendor master file combined with the requirement that a report of all changes are printed and submitted to both check signers, along with the applicable approved vendor change request.

One of the banes of any compliance practitioner is the push back they inevitably receive when they attempt to institute something new or different. The same can be true of internal controls. What happens when the compliance function receives push back and will be told the controls are too burdensome and also make operations less efficient? I inquired from Mixon how he might suggest this situation be dealt with going forward. Fortunately for us, this is something that Mixon has observed many times and is very familiar with the issue as many employees see internal controls only as an added burden. Moreover, many business development types will raise the hue and cry that internal controls prevent them from effectively running the business. Finally, there are many groups in any company that may well say that a re-work of internal controls will cost too much money.

One of the areas available to a compliance professional is benchmarking from other company’s compliance experiences. However this can be expanded into solid presentations about why it is important to assess and mitigate FCPA risks using your corporate peers that have been the subject of an FCPA enforcement action. This is some of the best sources of information a compliance practitioner can avail his or herself of to provide good insight into why it was never expected that the company would be subject to FCPA enforcement and insight into the extreme disruption, cost, and anxiety which accompanied the enforcement actions.

Mixon also advises that the premise is that the cost of controls should not exceed the benefits to be obtained, so it really comes down to internally selling a cost benefit analysis. If the selling is done after at least a basic risk analysis, Mixon believes that it should be relatively easy to obtain concurrence that certain risks must be mitigated and that the benefits exceed the expected costs. Furthermore, there are occasions where there are no costs associated with improving controls. A good example is when re-alignment of duties using existing staff achieves an improved set of internal controls. Another example is when manual controls can be converted to electronic controls such that the only cost is the programming and re-training costs.

Another key factor, as with all FCPA compliance initiatives, is ‘Tone at the Top’. This means that you should meet with and present the case for FCPA-focused internal controls to your company’s Executive Leadership Team (ELT), Audit Committee of the Board or other appropriate group of senior executives. The presentation should include, with examples, the importance of identifying and mitigating the FCPA and fraud risks. Some of these might include the following:

  • Illustrating the examples of how the controls can prevent bribery as well as many other types of occupational fraud;
  • Illustrating that the controls needed are all sound business controls, nothing exotic or out of the ordinary;
  • With proper control design, it may be possible to eliminate some existing detect controls in favor of more useful preventive controls or even prescriptive controls;
  • As a result of your business changes and resulting changes in assessed risks, it may be that some procedures now being performed are no longer needed and the resources can be shifted to more necessary controls; and
  • It may be possible to build in more electronic controls, which can replace existing manual controls.

What if your company does an assessment of the internal controls over financial reporting as part of Sarbanes Oxley (SOX) compliance and that the Chief Financial Officer (CFO), or other appropriate corporate officer, annually certifies the internal controls are effective? How should such a situation be dealt with or conversely how might a compliance professional respond? 

Mixon believes that there are two primary reasons why the assessment under SOX is not sufficient for a Compliance Officer’s purposes. One is the scope of the SOX assessment and the second is the design of the SOX assessment. This means that the SOX process addresses only the internal controls over financial reporting, that is, the controls in place to prepare the financial statements for presentation to third parties. That process does not address the risks or the control needs with respect to FCPA. Mixon cited to the example of internal controls over disbursements, which may be evaluated as being effective if there is a three-way match of the approved purchase order, the vendor invoice, and the receiving report. Those controls do not address the risk that an agent may submit an invoice before the agent has been vetted and the invoice will be paid. It also does not address whether the agent’s invoice was reviewed for proper description of business purpose and for being consistent with the approved contract with the agent.

The second primary reason SOX certification of financial internal controls itself is not enough is the design criteria. SOX allows a materiality threshold. This means that operations outside the US may be excluded from scope due to materiality. It may also mean that some functions are operating below the financial internal controls level. Compliance professionals need to continually remind others that there is no materiality requirement in FCPA enforcement.

I hope that you have benefited from these posts on internal controls outside the US. I clearly believe that the price for noncompliance can easily be substantially greater than the cost to assess and implement good internal controls. But good FCPA internal controls are not some standalone protective measure. They can help to make a company run more efficiently as the internal controls that prevent FCPA violations are the same ones that prevent fraud in the workplace. So the presence of good internal controls saves money by preventing fraud. It is a business best practice to prevent fraud, which includes preventing corruption. I have long wondered about Ethisphere and its annual survey of the world’s most ethical companies because they seem to exceed the Standard & Poor’s (S&P) index of average profits and growth. What I have come to believe is that one of the keys ways such companies do seem to have better than average profitability is that they have better internal controls.

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

October 14, 2014

Steve Bartman and Internal Controls Outside the US, Part II

BartmanToday, we note that 11 years ago, Steve Bartman entered the Chicago Cubs Hall of Infamy. For every baseball fan, if there was ever a but for the grace of God, go thee moment the sad saga of Bartman is it. The Chicago Cubs, who at that point had not played in World Series appearance in 58 years were five outs away from going to the 2003 Fall Classic. Bartman interfered with a ball he thought was in foul territory on the left field line but was in fact playable and about to be caught by Left Fielder Moisés Alou. His interference allowed the at-bat to continue and the batter got a hit. The Cubs fell apart and lost the game. Bartman was escorted from Wrigley Field by security guards as bloodthirsty fans hurled beer cans and other debris at his head. The next day, he went into hiding—but not before he told the press that “I’ve been a Cub fan all my life and fully understand the relationship between my actions and the outcome of the game – I am so truly sorry from the bottom of this Cubs fan’s broken heart.” Bartman lives in hiding to this day. Why is it a but for the grace of God moment? Because probably every baseball fan in the universe would have done what Bartman did and interfere by catching the ball, or at least trying to catch it.

Bartman’s story provides the starting point for today’s post. Last week, in Part I of this three-part series on internal controls for US company-business units which are located outside the US, I discussed some of the reasons why there might be such differences and provided a framework for thinking through how to assess the risk they might pose a company subject to the Foreign Corrupt Practices Act (FCPA). The framework I introduced in Part I was a Location Risk Assessment; today, I will discuss how to perform this assessment. Once again, I will rely on internal controls expert Henry Mixon for guidance in this area.

It is incumbent that you need to review as much information as you can to understand the financial and operational structure of an entity and how the financial and operation structure outside the US is integrated with the corporate headquarters, or the US business unit’s financial and operation structure, if the foreign operation is part of a US business unit. Mixon suggested that you could begin with the Transparency International (TI) Corruption Perceptions Index (CPI) to garner a sense of the reputation of the country in which your business unit is located, as well as the CPI for all other countries in which the location either markets business or has current customers. Another area for inquiry or review is the scope of your operations at a location outside the US. This means you will need to consider your sales model, whether employee based or primarily using third party representatives. You will also need to consider if such third party representatives are coming into a commercial relationship with your company through your supply chain.

Other areas of inquiry, which could be considered, include whether your company’s finance and accounting staff produce financial statements that are integrated into the parent’s financial statements; whether your international business locations utilize a local bank account for local sales receipts as well as funds transfers from the US and whether the account has local check signers and whether dual signatures are required on the checks. You may also want to consider the extent to which local disbursements are made in local currency and, of course, is there a local petty cash fund?

As with many other areas around internal controls, it is important to consider the local Delegation of Authority (DOA) and whether it is consistent with your corporate DOA. Mixon suggested that some of the considerations regarding the local DOA should extend to which corporate or US business unit approvals are required for transactions initiated locally, such as: (1) Approval of vendor invoices, (2) Disbursements of funds, including wire transfers; (3). Execution of facilities leases; (4) Execution of contracts with agents; and (5) Approval of pricing and credit terms to customers and distributors. You should also review whether the local DOA provides appropriate segregation of duties at the local business unit level.

You should consider how sales of product are conducted. For example, is an inventory maintained at the local operation for shipment of customers? Are products drop shipped from US directly to the customers of the local operation? Are products drop shipped to distributors for delivery to the ultimate customer?

Hopefully you are already doing the above but you should review what is being done to determine if employees or local contractors who are local nationals have gone through your due diligence process so that they have been properly vetted to determine whether they are government officials in any capacity or are relatives of government officials. Along the lines of a more formal FCPA analysis you should review to see if there has been any investigation of alleged fraud, including FCPA violations, at the location and if so, what were the results of the investigation? In the area of customers, you should review with whom each international location does business to determine the extent to which its current customers are local government entities as well as the extent to which the location is pursuing sales activities for other local government entities.

If there has not been a sufficient assessment of controls, the compliance professional must then decide how to best determine whether the local controls are sufficient to satisfy the requirement of the FCPA and accurately reflect all transactions and prevent concealment of improper transactions. Mixon believes that some of these considerations would be an inadequate segregation of duties because the separation of responsibility for physical custody of an asset from the related record keeping is a critical control. In practice, this means that persons who can authorize purchase orders (Purchasing) should not be capable of processing payments (Accounts Payable). Further, the employee who prepares the deposit should not post the receipts to the customer accounts.

You should look to see if there is inappropriate access to assets. If there is internal controls should be created to provide safeguards for physical objects such as inventory and cash, restricted information, critical forms, and update applications. This means that an employee who only needs to view computer information should be restricted to Read and File Scan access and should not be granted Write and Create access. Moreover, controls should prevent the unauthorized removal of resale inventory and movable fixed assets from the premises.

It is not necessary to prove a bribe to have been paid in order to have an enforcement action against a company for violation of the internal controls provisions of the FCPA. In the recent Securities and Exchange Commission (SEC) enforcement action against Smith & Wesson, that was the situation. The lack of effective internal controls, not the payment of a bribe, was the basis for the civil enforcement action. This means that you should look to make certain the situation is not one of form over substance, where controls can appear to be well designed but still lack substance, as is often the case with required approvals.

Mixon said that such a situation could arise in several different scenarios. The first is where an account manager’s signature attests to the accuracy of the payroll voucher information, but if the account manager does not have assurance that the supporting time records are accurate, the approval process lacks substance. Other examples are where a supervisor who approves expense reports but routinely does not look at the supporting documentation; a Country Manager provides a true control as an approver; or where the Country Manager or the local Finance Manager has ability to conceal the true nature of transactions without detection by anyone else.

Another important area involves sales and compensation for the international business unit in question. On the sales side of the equation, Mixon suggested you review the three-year historical sales for the location and what are the budgeted sales for the upcoming year. This can give insight into the relative pressure on employees to grow the business and, accordingly, the possibility of an employee seeing a bribe as a good way to grow the business. The inquiries can lead to questions about compensation such as what is the sales incentive compensation plan for local sales personnel and for the Country Manager; as this inquiry gives insight into the possibility of personal benefit which might result from someone paying a bribe in order to win a contract which results in a large sales incentive compensation to the employee.

All of these reviews, questions, inquiries and analyses are designed to locate the pressure points involved in any company’s sales processes. This is because pressure is a key element of occupational fraud and the risk of fraud, including corruption, increases as the pressure increases. Since corruption is viewed as a subset of fraud, it might be a good time to review the Fraud Triangle, which lays out breeding ground for fraud in the corruption context:

  • Pressure which has financial implications, whether it be personal financial needs that are unmet or pressure to reach sales goals;
  • Rationalization – a fraud perpetrator always rationalizes that he / she is not a criminal and when committing fraud for personal benefit, the perpetrator intends to repay the money; when committing fraud for company benefit, the perpetrator rationalizes that the company really wants to meet its goals and that the perpetrator’s actions are in furtherance of the company’s goals; and
  • Opportunity – the perpetrator must be in a situation where the internal controls do not prevent the fraud and its necessary concealment.

Steve Bartman has never spoken publicly about the event to this day. There has been no catharsis for him like the Red Sox fans gave Bill Buckner. But in the FCPA universe for your operations outside the US, you do not have to be a Bartman. In Parts I & II of this series, I have reviewed what some of the risks might be in your international locations that you do not have in your US domestic operations. In Part III, I will discuss how to use the Location Risk Assessment as a tool to provide a structured approach to establishing effective internal controls.

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

October 13, 2014

Ringo, Sir Paul and an Effective Compliance Program

Paul McCartneySometimes the universe converges in ways that are beyond my simple comprehension. This past weekend was one of them. It began a few months ago when I saw an advertisement from StubHub that showed Ringo Starr playing in Houston on October 10 and Sir Paul McCartney playing in New Orleans on October 11. I figured if the two surviving members of the greatest rock and roll band in the history of the world were going to play on two consecutive nights it was a sure sign from the Oracle of Rock ‘N Roll that I was intended to attend both, lest I tempt a fate worse than going against an entity nearly as powerful as the Oracle of Delphi. Moreover, the Friday concert coincided with the birthday of my little sister who happened to be in town and one of the planets biggest Beatles fans, it made the convergence complete. Ringo Starr

I also learned two completely new and unrelated facts this weekend. The first is that a native of Liverpool, England, is called a ‘Scouser’. That comes from my Liverpudlian friend Pam, who also introduced me to the Liverpool Football Club. The second is that my wife is a closet Mr. Mister uber fan, who rocked out as a teenager to this group in the early days of MTV. On reflection that is perhaps the more odder convergence.

While there is clearly a reason Ringo Starr tours with true musical all-stars and Sir Paul McCartney has been raised to the peerage for his musical prowess, in many ways the Ringo Starr concert was the bigger revelation. I had wondered how Ringo would fill out an entire concert. He did it by surrounding himself with musicians fabulous in their own right. They included: Steve Lukather, former lead singer from Toto on vocals, lead and rhythm guitar; Gregg Rolie, former keyboardist from Santana and Journey on vocals, organ, keyboards; Richard Page, former lead singer from Mr. Mister, on vocals and bass guitar; and finally, best and certainly not least, Todd Rundgren on vocals, lead and rhythm guitar, bass guitar, percussion, harmonica and, occasionally, even keyboards.

So in addition to Ringo singing his standards of Photograph, It Don’t Come Easy, Yellow Submarine and (of course) With a Little Help From My Friends. We also got to hear songs first released by Santana, Toto, Mr. Mister and some great Todd Rundgren hits. The group clearly loved playing and jamming with each other. Further, these other groups’ songs were great fun to hear and as they may never reform, I would not otherwise have the chance to hear them performed lived.

Sir Paul McCartney. You really do not have to say much more. His concert did not exceed my expectations because they were about as high as expectations could have been. He seriously rocked out for over three hours, playing everything from the earliest Beatles songs up to a ballad for his latest wife. I cannot remember ever attending a concert where everyone one in attendance knew the words to every song but we all did and we all sung them all the way through the entire show.

What is the compliance angle to all of this? Just as there is more than one way to put on a great concert, there is more than one way to have an effective compliance program. This continual message from the Department of Justice (DOJ) came again earlier this month through remarks by Assistant Attorney General for the Criminal Division, Leslie R. Caldwell, at the 22nd Annual Ethics and Compliance Conference, where she made clear that while the FCPA Ten Hallmarks of an Effective Compliance Program is one set of guidelines for an effective compliance program, there is no “one-size fits all” compliance program. She laid out another way to think through, review and analyze your compliance program. 

  1. High-level commitment. A company must ensure that its directors and senior management provide strong, explicit, and visible commitment to its corporate compliance policy. Stated differently, and again, “tone from the top.”
  1. Written Policies. A company should have a clearly articulated and visible corporate compliance policy memorialized in a written compliance code. Again, employees need to know what to do–or not do–when faced with a tough judgment call involving business ethics. Companies need to make that as easy as possible for their employees.
  1. Periodic Risk-Based Review. A company should periodically evaluate these compliance codes on the basis of a risk assessment addressing the individual circumstances of the company. Companies change over time through natural growth, mergers, and acquisitions.
  1. Proper Oversight and Independence. A company should assign responsibility to senior executives for the implementation and oversight of the compliance program. Those executives should have the authority to report directly to independent monitoring bodies, including internal audit and the Board of Directors, and should have autonomy from management. Compliance programs needed to be funded; they need to have resources. And they need to have teeth and respect within the company.
  1. Training and Guidance. A company should implement mechanisms designed to ensure that its compliance code is effectively communicated to all directors, officers, employees. This means repeated communication, frequent and effective training, and an ability to provide guidance when issues arise.
  1. Internal Reporting. A company should have an effective system for confidential, internal reporting of compliance violations. I know that many companies have multiple mechanisms, which is good.
  1. Investigation. A company should establish an effective process with sufficient resources for responding to, investigating, and documenting allegations of violations. What this means on the ground will depend on the company. A sophisticated multi-national corporation obviously will be expected to have more resources devoted to compliance than a small regional company.
  1. Enforcement and Discipline. A company should implement mechanisms designed to enforce its compliance code, including appropriately incentivizing compliance and disciplining violations. Further, the response to a violation must be even-handed. People watch what people do much more carefully than what they say. When it comes to compliance, you must both say and do.
  1. Third-Party Relationships. A company should institute compliance requirements pertaining to the oversight of all agents and business partners. This cannot be emphasized strongly enough.
  2. Monitoring and Testing. A company should conduct periodic reviews and testing of its compliance code to improve its effectiveness in preventing and detecting violations. Kick the tires regularly. As I said, compliance programs must evolve with changes in the law, business practices, technology and culture.

Caldwell also emphasized that as important as the compliance program itself; the implementation is also reviewed and evaluated by the DOJ. When the DOJ investigates a case, they look at the messages about compliance that are given to employees; they look at what employees are told in their day-to-day work. This means the DOJ will look at emails, chats, and recorded phone calls. They will interview witnesses about the messages they received from their supervisors and management to determine if they received messages about compliance, or about making money at all costs.

Another consideration for the DOJ is incentives. The DOJ will examine the incentives that a company provides to encourage compliant behavior – or not. This means that if a company is actually encouraging compliance, if its values are to be ethical and within the law, this message must be conveyed to employees in a meaningful way. If not, it is likely that the DOJ will not view the compliance program as credible. Interestingly, Caldwell said that sometimes the effective implementation of a compliance program means standing apart from the other companies in your industry.

Just as Ringo and Sir Paul ably demonstrated, there is more than one way to put on a great concert. They both assessed their strengths and weaknesses and used that information to put great bands around them illustrated their strengths. The same is true in the world of Foreign Corrupt Practices Act (FCPA) compliance. The key is to review and assess your compliance risks and then manage them. And, as always, Document, Document, and Document whatever you do so that if a regulator comes knocking, you can demonstrate evidence of the above.

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

 

 

 

October 2, 2014

The Mitford Sisters and the Compliance Audit

Mitford SistersDeborah Cavendish died last week. She was the last surviving member of an extraordinary group of women known as the ‘Mitford Sisters’. They were six daughters of David Freeman-Mitford, the 2nd Baron Redesdale and the former Sydney Bowles. The six had about as varied lives as one could possibly have from six different yet related siblings. Nancy (1904-73) became an author and wrote “The Pursuit of Love” and “Love in a Cold Climate.” Pamela (1907-94), who grew up wanting to be a horse, married a horseman who became a physicist. Diana (1910-2003) married Britain’s fascist leader Oswald Mosley, in the presence of Hitler and Joseph Goebbels. Unity (1914-1948) fell in love with Hitler and was Eva Braun’s rival for his affections; she died a decade after her attempted suicide with the bullet still in her head. Jessica (1917-96) was a communist. This did not prevent her from eloping with Churchill’s nephew and moving to the United States, where she penned “The American Way of Death” and other books. Deborah developed a passion for chickens and later married Andrew Cavendish, who became the Duke of Devonshire, making Deborah, the Duchess of Devonshire.

Deborah’s major accomplishment was to adapt the Duke ancestral home of Chatsworth into self-sustaining family business. She kept up a personal and active involvement in this project for nearly 40 years, until her husband died and she became the Dowager Duchess. Today, Chatsworth is one of the most visited sites in England.

I thought about Deborah, her remaking of Chatsworth and how she and her sisters remade themselves from the fairly-tale princess lives they grew up with when I read a recent article in the Red Flag Group’s Compliance Insider, September-October issue, entitled “Rethinking the typical audit”, by Georgia White. The piece recognized that the standard financial audit clause may be of little use to the compliance practitioner but it can be reworked “to include proactive compliance obligations which can be an effective and valuable way to positively manage relationships with distributors and resellers.” Some of the reasons for typical audit clauses with such parties are disfavored and were identified as “insufficiently tailored and poorly defined” or such audit clauses have some type of “catch-all” provision which allows a company to audit more than simply its relationship with a distributor or reseller. Such audit clauses were noted to “represent little value for both the client and the business partner.”

Compliance Audit Clause

The first focus of the article was that “Compliance audits should be aimed at engaging business partners to participate in compliance initiatives pro-actively, whether by way of interview or discussion, integrity circles or forums, or healthy checks or periodic review” all supplemented by occasional transaction sampling. In other words, you must do the work required in managing the relationship after the contract is signed or Step 5 in the Five Step lifecycle management of third parties. The article suggested the following compliance audit clause, “In addition to maintaining proper records and accounts in relation to Distributor/Reseller’s use of product X, Distributor/Reseller will participate in compliance health checks and periodic reviews, and attend integrity circle and forums on a regular basis as required by Supplier Y. In the event of an allegation of misconduct, upon seven (7) days written notice Supplier Y (or its authorized agent)may conduct an inspection and audit all relevant facilities and records of Distributor/Reseller to verify compliance with obligations under this Agreement. Such audit is to be conducted in business hours at Supplier Y’s own expense and in such a manner as not to unreasonably interfere with Distributor/Reseller’s normal business activity.”

Getting buy-in from business partners

The piece suggests that in this manner of pro-actively engaging your Distributor/Reseller you can help maintain “the integrity of the relationship” and keep “open and transparent lines of communication.” While it may be easier to include such a clause with a new Distributor/Reseller; you may face a challenge with such a relationship which has been long standing. However for an effective Distributor/Reseller to be maintained, the author believes that everyone must be treated equally (the Fair Process Doctrine in play) as “compliance audits should apply to new and existing partners alike.” The key is communication by educating your Distributor/Reseller base “on the value of this kind of proactive exchange on compliance issues during business-planning sessions.” In other words, set expectations by talking to your business partners about why the compliance audit is necessary and, more importantly, have them understand the “risks associated with product diversion and unethical behaviour.”

When should the audit clause be added?

The piece takes on another touchy subject in audit clauses which is timing by stating, “To maintain positive relationships with existing business partners it is important to consider the timing of any proposed changes to existing contractual provisions.” However White provided some timing points for initiating this discussion.

  • Contract renewal cycle. If such a discussion is brought up during the regular renewal cycle you certainly should have good argument about such programs under a Foreign Corrupt Practices Act (FCPA) best practices compliance program. The debate about whether distributors were covered was ongoing until a couple of years ago so many companies may not have considered auditing such relationships. Moreover, White notes that if you raise the issue during a renewal cycle, “business partners are less likely to invoke suspicion that is a ‘targeted’ requirement” you are aiming only at them.
  • Annual business planning sessions. Such meetings usually entail an overall strategy component so White believes it is a good time to bring up the issue in the context of your company’s overall anti-corruption compliance efforts. You should have the opportunity to “discuss best-practice strategy and introduce the possibility of proactive compliance auditing for the relationship going forward.” The more you can focus on the ‘partner’ nature of the compliance obligation the more this should resonate with your Distributor/Reseller.
  • Company-wide annual meetings with Distributor/Resellers. Here White suggests that if you bring all of your Distributor/Resellers together and announce the auditing requirement, you may be able to demonstrate that auditing is now a system wide requirement. She believes “The chance of buy-in is increased if it is perceived that other competitors are already actively engaging with you in this manner.”
  • White suggests, particularly if you are in a high risk environment or need to institute such an audit right sooner rather than later, to negotiate over audits rights. She suggests “consider introducing the proposed change in tandem with a benefit that is being rolled out to the business partner.” I would add that you could also sweeten up the pot.

From the overall tone of White’s article, the key seems to communication. Communication can be used to show that adding and then invoking a compliance audit clause is not necessarily a negative outcome. But more than communication with your Distributor/Resellers is the concept from the Fair Process Doctrine; that is, if the process is fair, people and business partners may be more willing to accept a perceived negative outcome. This will go a long way to alleviating fears from Distributor/Resellers that they are being targeted for some nefarious reason or worse, that your company may be using the information obtained in a compliance audit to drive down the commercial value of the relationship.

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

October 1, 2014

Creation of Yosemite and Putting Compliance at the Center of Strategy

YosemiteOn this day in 1890, an act of Congress created Yosemite National Park, home of such natural wonders as Half Dome and the giant sequoia trees. Environmental trailblazer John Muir (1838-1914) and his colleagues campaigned for the congressional action, which was signed into law by President Benjamin Harrison.

In 1889, John Muir discovered that the vast meadows surrounding Yosemite Valley, which lacked government protection, were being overrun and destroyed by domestic sheep grazing. Muir and Robert Underwood Johnson, a fellow environmentalist and influential magazine editor, lobbied for national park status for the large wilderness area around Yosemite Valley. With this persuasion, Congress set aside over 1,500 square miles of land for what would become Yosemite National Park, America’s third national park. In 1906, the state-controlled Yosemite Valley and Mariposa Grove came under federal jurisdiction with the rest of the park to create the Yosemite that we know today. It clearly was a triumph for Muir and Johnson but more so for the American people.

I recently read an article in the Harvard Business Review (HBR) that seemed to draw inspiration from the actions of Muir and Johnson. The article by Frank Cespedes, entitled “Putting Sales at the Center of Strategy”, discussed how to connect up management’s new sales plans with the “field realities your salespeople face.” Referencing the well-known Sam Waltonism that “There ain’t many customers at headquarters”; Cespedes believes that “If you and your team can’t make the crucial connections between strategy and sales, then no matter how much you invest in social media or worry about disruptive innovations, you may end up pressing for better execution when you actually need a better strategy or changing strategic direction when you should be focusing on the basics in the field.”

The problem is usually clear. Senior management and the C-Suite make clear their commitment to doing business ethically and in compliance with anti-corruption laws such as the Foreign Corrupt Practices Act (FCPA). The company even has a best practices compliance. But the problem is that the installation or enhancement of a compliance regime is usually perceived as a ‘top-down’ exercise. The reality of the employee base that must execute the compliance strategy is not considered. Even when there are comments, it is derisively characterized as ‘push-back’ and not taken into account in moving the compliance effort forward. I thought Cespedes piece had some great insights for the compliance practitioner so borrowing from his four-point process, I will rework it for a compliance professional.

Communicate the Strategy

It can be difficult for an employee base to implement a strategy that they do not understand. Even with a company wide training rollout, followed by “a string of e-mails from headquarters and periodic reports back on results. There are too few communications, and most are one-way; the root causes of underperformance are often hidden from both groups.” Here Cespedes’ insight is that clarification is a leadership responsibility and in the compliance function that means the Chief Compliance Officer (CCO) or other senior compliance practitioner. Moreover, if the problem is that employees do not understand how to function within the parameters of the compliance program, then there is a training problem and that is the fault of the compliance department. I once was subjected to a PowerPoint of 268 slides, which lasted 7.5 hours, about my company’s compliance regime. To say this was worse than useless was accurate. The business guys were all generally asleep one hour into the presentation as we went through the intricacies of the books and records citations to the FCPA. The training was a failure but it was not the fault of the attendees. If your own employees do not understand your compliance program that is your fault.

Continually improve your compliance productivity

I thought this point was insightful. Cespedes talked about incentivizing your sales force. Why not do the same concepts around compliance? You can work with your Human Resources (HR) department to come up with appropriate financial incentives. Many companies have ad hoc financial awards, which they present to employees to celebrate and honor outstanding efforts. Why not give out something like that around doing business in compliance? Does your company have, as a component of its bonus compensation plan, a part dedicated to FCPA compliance and ethics? If so, how is this component measured and then administered? There is very little in the corporate world that an employee notices more than what goes into the calculation of their bonuses. HR can, and should, facilitate this process by setting expectations early in the year and then following through when annual bonuses are released. With the assistance of HR, such a bonus can send a powerful message to employees regarding the seriousness with which compliance is taken at the company. There is nothing like putting your money where your mouth is for people to stand up and take notice.

Improve the human element in your compliance program

This is another area where HR can help the compliance program. More than ongoing assessment of employees for promotion into leadership positions, here HR can assist on the ground floor. HR can take the lead in asking questions around compliance and ethics in the interview process. Studies have suggested that certainly Gen Y & Xers appreciate such inquiries and want to work for companies that make such business ethics a part of the discussion. By having the discussion during the interview process, you can not only set expectations but you can also begin the training process on compliance.

However, this approach should not end when an employee is hired. HR can also assist your compliance efforts by tracking employees through their company career to identify those who perform high in any compliance metric. This can also facilitate the delivery on more focused compliance training to those who may need it because of changes on FCPA risk during their careers.

Make your compliance strategy relevant

Cespedes notes, “Most C-suite executives know these value-creation levers, but too few understand and operationalize the sales factors that affect them.” In the sales world this can translate into a reduction in assets to underperforming activities. This is all well and good but such actions must be coupled with an understanding of why sales might be underperforming in certain areas. In the compliance realm, I think this translates into two concepts, ongoing monitoring and risk assessment. Ongoing monitoring can allow you to move from a simple prevent mode to a more prescriptive mode; where you can uncover violations of your company’s compliance program before they become full blown FCPA violations. By using a risk assessment, you can take the temperature of where and how your company is doing business and determine if new products or service offerings increase your compliance risks.

Above all, you need to get out and tell the compliance story. Louis D’Amrosio was quoted for the following, “You have to repeat something at least 10 times for an organization to fully internalize it.” If there is a disconnect between your compliance strategy and how your employee base is implementing or even interpreting that strategy, get out of the office and go out to the field. But you need to do more that simply talk you also need to listen. By doing so, can help to align your company’s compliance strategy with both the delivery and in the field.

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

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