FCPA Compliance and Ethics Blog

August 4, 2014

The Houston Astros and a Compliance Defense in the FCPA

IMG_3289It is not as if I have tried not to write about the Houston Astros this year or that I am consciously ignoring them, it is simply that they are so not relevant they rarely seem to exist or at least raise their pathetic head for a compliance lesson or two. Not only are they on track to have the worst record in baseball for the fourth consecutive year but last week they had yet another 0.00 television rating. For those of you keeping score at home, this is the third time in less than one calendar year that no persons, registered through the Nielsen TV-rating system, indicated they watched an Astros game on television. Nevertheless in July the Astros managed to yet outdo themselves again in the field of idiotic statements and actions that were so profound they once again inform your compliance program and indeed those advocating the appending of a compliance defense to the Foreign Corrupt Practices Act (FCPA).

For the privilege of having the worst record in baseball over the past 3+ seasons, the Astros had the right to the No. 1 selection in this year’s baseball draft. With this year’s selection they took a high school pitcher, Brady Aiken. But for reasons only known to the Astros, they managed not to sign this year’s first round pick, for only the third time since the amateur draft began back in 1968. The sordid tale was laid out in a Grantland article entitled “Houston You Have a Problem by Michael Baunmann.

After drafting Aikens, he and the Astros reached a handshake deal for a contract worth $6.9MM. Shortly thereafter, a medical examination “revealed that his left UCL (the ligament that gets replaced during Tommy John surgery) is unusually small.” Note this examination did not reveal any damage to the nerve or any injury, simply that Aikens’ UCL was small. So what did the Astros do? They reneged on their agreement (as in our word is really not our word) and then offered Aikens $3.5MM. Why would the Astros go back on their word? As explained by Baunmann “Tiny UCL Affair of 2014 was actually a smoke screen to cut Aiken’s bonus and use the savings to help sign other players. MLB regulates how much teams can spend on draft picks, and the Astros entered post-draft negotiations with an overall signing budget just north of $13 million. The league places a dollar amount on each draft pick in the first 10 rounds, so if you add up the numbers for each pick, you get the total salary cap each team is allowed to spend on its draftees. If one player signs for less than the recommended slot, the team can use the savings to sign other picks to richer bonuses, including players in the last 30 rounds, who’d ordinarily only be able to sign for $100,000. If a team goes over its spending limit, the league taxes the overage. If a team goes over by enough, it loses draft picks in coming years.” But it all backfired on the Astros who ended up with a big Nada.

In other words, the Astros were trying to game the system by underpaying its first round pick so they could use the saved money to pay to other picks. However, when they did not sign their No. 1 pick, under MLB rules they could not use any of the saved money on other picks. The Astros were accused by the Players Union of illegal action under the Collective Bargaining Agreement and a formal grievance has been filed against the Astros. But perhaps the most damning was this statement by Buanmann, “This isn’t about sabermetrics or how the Astros chose to rebuild. This is distinctly about the human element. If your word is not your bond, if you’re willing to brazenly exploit teenagers to gain an edge, endangering their educational and professional futures out of spite, you might lack an appreciation for the human element. I’d say you lack humanity altogether.”

I know you have all been waiting for the compliance angle to all of this so here it is. The Astros act like a corporation and like almost all corporations they look to pay the absolute cheapest that they can to get something. Those who advocate that there be a compliance defense added to the FCPA miss this fundamental tenet of the corporate world. Corporations that are unwilling to spend money to put a best practices or even adequate compliance program in place now, will not do so simply because an amended FCPA says they will have a defense if they do so. It is not a matter of having a compliance program in place, but doing compliance because doing compliance costs money. Since the Supreme Court has told us that corporations have the same rights as people, it makes sense that cheap corporations will not put in effective compliance programs, simply because they are cheap. If your business model for the past 35+ years has been that you are too cheap to follow the law and put in an effective compliance program, as required by the existing law, simply by amending the FCPA to add a compliance defense will not change your basic nature.

It costs time, money, effort and commitment to put a compliance program in place. By simply having language that says you will get credit for having a defense in place, corporations who are not committed to compliance will not magically get committed. These companies who are too cheap to follow the law now will simply throw a paper excuse up and then crow to the world that they have an adequate compliance program. The Astros, reported last year to be the most profitable baseball team of all-time and “a multimillion-dollar corporation that could find $3.4 million in the change jar on the nightstand, tried to nickel and dime a kid who’s trying to break into an industry that’s stacked the deck against him, and then they tattled on him to the NCAA once they failed to get their way.” If a compliance defense was amended to the FCPA, corporations will give even less money to the compliance function because they will sit smugly behind their paper compliance program and not devote the time, money or commitment required to having an adequate compliance program.

The Department of Justice (DOJ) has continually made clear that company’s will receive credit for having a compliance program in place even where a potential FCPA violation occurs. The Morgan Stanley declination is but the most prominent publicly announced statement on the matter. Additionally, there are the six examples cited in the FCPA Guidance where declinations were issued, with the company identifying information scrubbed from the facts presented. Moreover, the US Sentencing Guidelines also touches directly on this point. So the importance of not only complying with a 35+ year old law but how to do so is easily apparent to any company which might be researching the issue.

It is not the lack of knowledge of how to comply with the FCPA which keeps a company from putting an effective compliance program in place but what might charitably be called a cost-aversion ethos. Just as with the Astros, cost-aversion exists in a wide number of areas outside FCPA compliance. In an article in the New York Times (NYT), entitled “Valeant’s Cost-Cutting Ethos May Yet Give Wall Street Indigestion”, Jesse Eisinger reported on the company’s attempt to rebrand the drug Sculptra for use as a “cosmetic touch-up” treatment when it had been approved for use by HIV patients with “facial wasting”. Valeant had purchased the drug from another pharmaceutical company, Sanofi, and also the “inherited the responsibility for conducting the study when it purchased the drug”

However, Valeant did not want to go through the time and expense of conducting the required clinical trials to have the drug approved for this new use. Eisinger wrote, “From the start, Valeant executives were concerned the study would cost too much, according to three current and former executives who spoke on condition of anonymity. The five-year safety study could cost $25 million to $40 million, according to Tage Ramakrishna, Valeant’s chief medical officer. According to the executives, the message was clear and emanated from Mr. Pearson: The company should try to avoid having to perform the study. Ryan Weldon, who until recently was the head of Valeant’s aesthetics business, said to one executive that “we’re not going to spend money on that,” referring to the study.” Eisinger also reported that even though the company never completed the required study, “the company sold the treatment.”

Beyond putting a compliance program in place, a company must actually do compliance. This means putting in a compliance function commensurate to the size and risk a company has with its business model. Not only must money be spent but compliance professionals hired and given real authority to help the company prevent, detect and remediate FCPA violations that may arise. Once again, if a company is not incentivized to follow a 35 year old law with as much enforcement publicity as the FCPA, saying they will be given credit for something they could already receive credit for, in the form of a compliance defense, is not going to change conduct or even attitudes.

I cannot think of a better way to sum this up than to pass along the Astros gift to their fan base, which they announced on Friday. They are raising ticket prices in 2015.

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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