Bad News Barnes and China’s Overseas Efforts to Fight Corruption

Marvin ‘Bad News’ Barnes died last week. Barnes probably summed up the state of professional basketball more than any one person in the 1970s. He was enigmatic, supremely talented, defiantly self-indulgent, fell prey to drugs and alcohol and lost everything. He exploded onto the national scene in 1973 with a Providence team who went to the Final Four and then went on to play for one of the most unique collection of basketball talents ever assembled; the aptly named St. Louis Spirits in the old American Basketball Association (ABA). After the folding of the ABA, he played for Boston, Detroit, Buffalo and San Diego in the National Basketball Association (NBA). In his obituary in the New York Times (NYT), entitled “Marvin Barnes, Enigmatic Basketball Player, Dies at 62”, reporter Bruce Weber quoted former Spirits owner Donald Schupak, from a 1976 interview where he said of Barnes, “He’s a nice guy, a sweet guy, everybody likes him. He’s just totally unreliable. He’s probably in the top five players talent-wise. In terms of value to the team, he’s probably in the bottom 10 percent.” My personal favorite Bad News Barnes story was the time he showed up for a Pistons game in the middle of the first quarter, dressed in his game jersey and a full length mink coat, eating some French Fries, claiming he had ‘overslept’. Bad news indeed.

I thought about Bad News Barnes whilst reading some recent Financial Times (FT) articles about China’s fight against corruption. They were “China takes its anti-corruption battle to foreign shores” and “China bribe cases pose test for west as suspects flee” both by Jamil Anderlini. I thought they posed some interesting questions for anti-compliance practitioners, law enforcement officials who enforce anti-corruption laws and the anti-corruption commentariatti out there.

The problem of corruption in China is both well known and well documented, as is the ongoing anti-corruption campaign. In the former article, Anderlini says, “The US-based group Global Financial Integrity estimates illegal flows out of China amounted to $2.83tn [that is Trillion] between 2005 and 2011. The article details that China is carrying the fight against anti-corruption outside the boundaries of the country to seek those persons who may have been the recipients of corrupt payments and have fled the country.” He wrote, “Communist party officials have launched an investigation into assets and individuals based in New Zealand.” The effort, code named “Fox Hunt 2014” (you have to love that moniker), is being run by the Communist Party’s “Central Commission for Discipline Inspection [CCDI], a shadowy organization with a controversial human rights record”. It has set a dedicated office to “investigate allegedly corrupt officials who have absconded or sent relatives and assets abroad.”

In the later article, Anderlini wrote that CCDI status is as the “extralegal body that answers only to the Communist party leadership and has the power to indefinitely detain any of the country’s 86m party members without trial and without access to legal representation. It is often accused of torture, inhumane treatment of suspects and politically motivated investigations, according to human rights groups.” Moreover, some believe this pursuit raises difficult questions for western democracies. Anderlini quoted one un-named diplomat for the following, “Our countries don’t want to be seen as havens where corrupt officials can flee to with their ill-gotten gains but there are serious questions facing any democratically elected government about how far they can co-operate with China’s authoritarian system.” Further, unlike the US, many countries ban the death penalty, which is still legal in China for those Communist Party and government officials who are convicted of accepting bribes. Finally is the issue of the CCDI and the Chinese judicial system. Anderlini said, “Even when cases have been transferred by the CCDI to China’s formal legal system, there are serious questions about judicial independence because the courts ultimately answer to the party hierarchy.”

For some of these reasons and perhaps others, “China does not have extradition treaties with any western democracies although it does have agreements with 38 countries and has repatriated 730 people suspected of “major economic crimes” since 2008, according to state media.” The Chinese government hopes it will “catch more fugitives in countries such as Canada, Australia and the US – the three most popular destinations for allegedly corrupt officials, according to Chinese state media.” Finally, Anderlini noted that multiple “Beijing-based diplomats from several western countries, including the UK, say China has applied growing pressure in recent months in an attempt to secure their help for investigations in their countries.”

Anderlini reported that some people in New Zealand have been made uncomfortable with all of this. He said, “the New Zealand public remains deeply sceptical of closer ties with the authoritarian Chinese government.” Moreover, “In the case of New Zealand, the overwhelming importance of the economic relationship has made at least some people argue for closer co-operation with Beijing in tackling the flow of illicit funds and fugitives from China.” He also quoted Russel Norman, co-leader of New Zealand’s Green Party, who believes “The NZ Police, Ministry of Foreign Affairs and Trade and Prime Minister’s office need to tell the public of New Zealand what, if any, access we are willing to allow the Chinese Communist party to New Zealand residents. Allowing this to happen would be like giving the KGB access to expatriate Russian citizens during the cold war.”

What should the response of western governments be regarding the efforts of the Chinese government to fight internal corruption? Should western governments, such as here in the US, cooperate with the Chinese government in requests for documents, other evidence or interviews? Can the US or other western governments expect reciprocity from the Chinese in a Foreign Corrupt Practices Act (FCPA) or UK Bribery Act investigation if they do not give the same courtesy to Chinese prosecutors? Should the fact that China has harsher penalties for accepting bribes, even up to the death penalty, preclude western governments from cooperating with the Chinese officials. (Please note such argument would not apply in the great state of Texas, where the death penalty most surely does still exist.) What about the CCDI, the “extralegal body” which is heading up this investigation? Should western countries be required to evaluate who is enforcing the Chinese laws on the books against corruption? Can or should you compare the CCDI with the KGB? If you are going to evaluate that body, does it logically lead to an evaluation of the entire Chinese legal system? Finally, if western governments believe that bribery and corruption are insidious matters that require responses, should they care whether an extrajudicial organ of the Chinese Communist Party is involved? All I can conclude is Bad News indeed for those Chinese officials who the CCDI is after, no matter where they might have fled.

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

Management of Corruption Risks – Business Lessons from GSK

The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) have made it abundantly clear over the past several years that companies should assess their risk and then manage their own risks. In the anti-corruption space, simply putting in a Check-the-Box paper compliance program does not help to prevent, detect or remediate under laws such as the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. In their joint FCPA Guidance, the DOJ and SEC make clear there are a variety of steps a company can take to manage anti-corruption risks.

One of the tired excuses for cutting back on FCPA enforcement is that it costs US companies business overseas because they cannot engage in bribery and corruption, while the commercial enterprises of countries which do not have robust anti-corruption laws essentially bribe at will. However, there are many business solutions available in the management of risk, which companies can profitably use to help ameliorate bribery and corruption risk.

I was interested to read recently about some of the responses that one of the world’s current poster children for bribery and corruption are considering. In an article in the Financial Times (FT), entitled “Witty comes out fighting for GSK”, Andrew Ward reviewed some of the business responses that GlaxoSmithKline PLC (GSK) has contemplated over the past year since the revelations about allegations of bribery in China. Ward reported that in addition to the uncertainty of the ongoing corruption investigation by Chinese authorities, the UK Serious Fraud Office (SFO) for violations of the UK Bribery Act and the DOJ for violations of the FCPA; the company “issued a profits warning that exposed weakness in the company’s core respiratory medicines business.” These warning turned on “the decline in the company’s best selling drug. Revenues from Advair, an asthma treatment that accounts for a fifth of sales, fell 12 per cent in the second quarter, on top of the 15 per cent drop in the three months before that.” Moreover, the company’s stock is down some 14% in the past year.

I was intrigued by the response of GSK’s chief executive, Sir Andrew Witty. Witty did not bemoan the corruption investigations that his company is going through or somehow try to claim that the company simply could not compete because of the scrutiny it is under. On the business front Ward reported, “GSK’s innovation engine is working” as Witty noted that the company had “six new drugs approved across all therapeutic areas last year and a further 40 in advanced development”.

In addition to the specific response regarding the development of new pharmaceutical products, Witty is looking at other sales products and models that will lessen the company’s corruption risk while providing a strong business base. Ward reported that Witty is “strengthening GSK’s two other businesses: vaccines and healthcare.” This move “was reinforced by a $20bn asset swap with Novartis in April under which GSK traded its subscale oncology business for the Swiss group’s vaccines division, while the pair agreed to set up a joint-venture in consumer products.” This means that when this structuring is completed, “half of GSK’s revenues will come from outside [the sale of] pharmaceuticals.”

Witty has also worked to change internal GSK compensation incentives to help manage corruption risks. Late last year, the company announced that it would “sever the link between sales and pay for drug reps and from 2016, stop payments to doctors for promoting its products.” Ward noted that others in the industry have not followed GSK’s lead in changing the way it compensates its sales team but Witty said, “in the long-run, the company will benefit from being the first-mover towards a new marketing model.”

Finally, and perhaps most interestingly, Witty has attempted to become an industry-wide “standard-bearer for [pharmaceutical] industry ethics.” Ward reported that the ongoing scandal has helped Witty “drive home to employees the need for greater transparency.” Ward even quoted Witty for the following, “It gives me the ammunition to say we are in the public eye and our behaviour counts. It’s not just about generating prescriptions, it’s how you do it.”

In another article on the GSK corruption scandal by Ward, entitled “GSK chief floats break-up option”, Ward quoted said that Witty has “zero tolerance for any form of corruption” and that “he was pleased if wrongdoing had been brought to light so that it could be stamped out.” Witty went on to say that “Any company that doesn’t get whistleblower letters isn’t looking hard enough. If you are not getting any don’t dream. It can’t be perfect 100 per cent of the time.”

Another perspective on business solutions to the management of corruption risks came from Tom Mitchell, also writing in the FT in an article entitled “Expats in China should read GSK potboiler carefully”. Mitchell focused on a book by Joe Studwell called The China Dream, which detailed some of the business failures that had befallen western companies in China. Mitchell drew the lesson from Studwell’s book that “When foreign investors’ interests are aligned with those of their domestic partners – as they generally are today in the auto sector – those investors do very well indeed… However, when interests are not aligned – or when outside operators in sectors where they are not required to have joint ventures – foreigners are vulnerable to sudden reversals of fortune instigated by either a bitter partner or by unsympathetic officials.”

How closely does that sound like what happened to GSK? Mitchell noted that GSK “made money from selling goods in China at prices that were – Chinese police allege – were high by the standards of many markets. At the same time, GSK was not sharing revenue streams with a local partner that could help with damage limitation when local authorities appeared on its doorstep.”

The management of risk is essentially a business exercise. That is because risk is what can cause a company to lose money. Some risk is embodied in statutes such as the FCPA or UK Bribery Act. Sometimes risk is a change in the market circumstance. For that I and others have written about the negative side of GSK; the company may well come out the other side of the Chinese corruption scandal stronger because they seem to understand that there is a market based solution to corruption risks. GSK has changed the way it will compensate its sales force and will delete its compensation to doctors. This may take away incentives to cut corners or engage in bribery and corruption. But think about Witty’s steps to diversify the GSK product base. If you are in an industry that is corrupt and you cannot find a way to do business profitably, your company may have other business lines it can move forward to a more prominent role in your business. Lastly, as with most responses to legal issues by lawyers, business executives are only limited by their imaginations in their response to business issues.

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

Extraordinary Rendition and Ripples From the Chinese Corruption Investigations

As many of you know, I am a recovering trial lawyer. So I was very interested when I received a book for review by Paul Batista, entitled Extraordinary Rendition. Not only is Batista a practicing trial lawyer specializing in federal criminal defense, he also authored one of the leading treatise on the federal racketeering statute, “Civil RICO Practice Manual,” first published in 1987 by John Wiley & Sons, and now in its third edition (Wolters Kluwer 2008).

I learned long ago that there are two basic story lines: Hero Takes A Trip and Stranger Comes To Town. They both are great formats and I enjoy them equally if the writing and story-telling is good. Extraordinary Rendition falls into camp one and I found it to be the journey of discovery of a nearly burned out trial lawyer, Byron Carlos Johnson, who comes to defend Ali Hussein, a Syrian national who had lived in the US for 10 years prior to 9/11 and was accused of being a banker for Al Qaeda. The story follows twists and turns of not only the trial but the various agents and agencies of the US Government as they try to derail Johnson and his attempts to defend Ali Hussein. While it certainly could be called a legal thriller, it is a rollicking good ride and I give my hardiest recommendation to anyone interested in the legal issues involved or a thriller about a man caught up in forces far beyond his control; yet does take control of what he can.

I thought about Batista’s book when I read a recent article in the Financial Times (FT), entitled “Beijing probe touches west’s cereal bowls” by Lucy Hornby. Her basic thesis was set out in the first line of her piece, “Never before have China’s domestic politics had such ramifications for global business.” She wrote about two tangible examples of what she termed the “ripple effects” of the Chinese anti-corruption investigation, which began in earnest last summer with the revelations of corruption by the UK pharmaceutical giant GlaxoSmithKline PLC (GSK).

Hornby reported on the Canadian company, Athabasca Oil Corporation, “the partner company for major Chinese investments in Canadian oil sands – fell 13 per cent this week. They are down 24 per cent since the beginning of April, when Athabasca announced PetroChina, a listed unit of CNPC, would buy the 40 per cent of the Dover oil sands project that it did not already own. Since then, two executives from PetroChina’s Canadian operations have fallen prey to the corruption purge – and the C$1.32bn (US$1.23bn) transfer payment has not been made.” But it has also reached the British breakfast table as Chinese authorities announced they were investigating the owner of the company that makes the breakfast staple Weetabix.

Business ventures in other countries such as Cambodia and Australia have been put off due to the Chinese corruption investigation. This has been because of both corrupt payments made to Chinese officials and in some cases corrupt payments alleged to have been made by Chinese officials. For instance in Cambodia a project that was mired in such problems that the primary funding partner, The World Bank, had suspended funding has now run into such problems that Standard Chartered may lose up to $250MM in funding which it provided. Further, Hornby reported that “In Australia last year, a A$1.4bn bid for Sundance Resources – which had proposed a $A5bn iron ore mine on the border of Cameroon and the Republic of Congo – collapsed after high-flying Chinese entrepreneur Liu Han abruptly vanished. Mr Liu had built his mining business by cultivating ties with Mr Zhou while the latter governed southwestern Sichuan province. He was sentenced to death in May for organised crime. His defence was that he was carrying out orders for unnamed “leaders”.”

Things are particularly difficult at PetroChina, a major investor in Canadian oil sands, because, as Hornby noted, “dozens of senior executives have been detained or questioned in the past year. Many, including the head of its Indonesian business, played key roles in its international projects.” However Hornby believes that “capital expenditure commitments by state-owned enterprises are likely to be honoured as the investigation continues, because China’s large and growing economy has a fundamental need for resources.”

Another large Chinese energy concern CNPC has also been hard hit by the corruption scandal. Attached, as a diagram, to Hornby’s article is a graphic that shows the extent of the company’s investments of the past 10 years or so. The graphic also notes that the company “has been hardest hit by the ongoing corruption purge, with dozens of senior executives detained or questioned.” The chart below shows the “ripple effects” of CNPC investment.

Country	Investment Amount
Kazakhstan	$12.7bn
Peru	$2.6bn
Turkmenistan	$1.2bn
Scotland	$1bn
Ecuador	$0.7bn
Australia	$4.1bn
Canada	$3.3bn
Syria	$0.6bn
Mozambique	$4.2bn

Hornby’s article touched on another area, which has significance for the Foreign Corrupt Practices Act (FCPA) practitioner, that beg the question of whether a state-owned enterprise is an instrumentality or in any other way covered by the FCPA? She wrote that “the unusually public nature of this corruption investigation has given outsiders a clearer insight into the way money and power have become entwined, and influence dealmaking, in today’s China.” She quoted Luke Patey, author of the book The New Kings of Crude, for the following, ““For years, Chinese national oil companies have fought hard against the label that they are political instruments of the Chinese government and Communist party. That political nature is now on full display.””

Hornby’s article demonstrates not only the pervasive nature of Chinese corruption but also how many countries such corruption may have effected. For those FCPA naysayers who argue that the law brings a competitive disadvantage to US companies, they should read her article to open their eyes. Many of these Chinese investments are now on hold with no hope of completion or even funding because of the domestic turmoil inside China over corruption. Companies and countries want a reliable business partner, starting with one which does not engage in bribery and corruption to obtain a contract and then onto a company which fulfills its contractual obligations. Think about that as a selling point the next time you are oversees.

And while you are traveling overseas, read a copy of Batista’s Extraordinary Rendition on the trip over. You can purchase a copy by clicking here or 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

Where to Now St. Peter? – Due Diligence Going Forward in China

Whatever you might think of where his career went, Elton John had some great early stuff. I still rank Tumbleweed Connection right up there as one of my favorite albums of all-time. And while it was packed with some great tracks, one of my most favorite was Where to Now St. Peter? It was the opening track on Side 2 and dealt with whether a dying soldier would end up in heaven or hell. While perhaps having quite the spiritual overtones, I did think about this song when I read about the convictions on Saturday of Peter William Humphrey, a 58-year-old British national, and his wife, Yu Yingzeng, a 61-year-old naturalized American, on charges of illegally purchasing personal information about Chinese nationals.

In a one day trial the couple was convicted of illegally purchasing information on Chinese citizens. In an article in the Financial Times (FT), entitled “China court hands GSK investigator jail term and orders deportation”, Gabriel Wildau and Andrew Ward reported that husband Humphreys received a two and a half year jail term which was “just short of the three-year maximum”. In an article in the Wall Street Journal (WSJ), entitled “China Convicts Two Corporate Investigators”, James T. Areddy and Laurie Burkitt reported that he was also ordered to pay a fine of approximately $32,500 and will be deported from the country when his jail term is completed. Wife Yingzeng received a two year jail term and was ordered to pay a fine of approximately $23,000 but will be allowed to remain in the country after her sentence is completed.

In a New York Times (NYT) article, entitled “In China, British Investigator Hired by Glaxo, and Wife, Sentenced to Prison”, David Barboza reported that the couple “acknowledged that from 2009 to 2013, they obtained about 250 pieces of private information about individuals, including government-issued identity documents, entry and exit travel records and mobile phone records, all apparently in violation of China’s privacy laws.” According to the NYT article, wife Yu claimed that she did not know her actions where illegal and was quoted as saying, “We did not know obtaining these pieces of information was illegal in China. If I had known I would have destroyed the evidence.” According to the WSJ, the privacy law which was the basis of the conviction, was enacted in 2009 “to make it illegal to handle certain personal medical records and telephone records” but that the law itself “remains vague” on what precisely might constitute violation.

From the court statements, however, it did appear that the couple had trafficked in personal information. As reported by the WSJ, “In separate responses over more than 10 hours, My Humphreys and Ms. Yu denied that their firm trafficked in personal information, saying they had hired others to obtain personal data when clients requested it.” From the documents presented by the prosecution, it would seem clear that the couple had obtained my items which were more personal in nature. They were alleged by prosecutors to have “used hidden cameras to gather information as well as government records on identification numbers, family members, real-estate holdings, vehicle owner, telephone logs and travel records.”

Recognizing the verdicts under Chinese laws are usually predetermined and the entire trials are scripted affairs, there is, nonetheless, important information communicated to the outside world by this trial. First and foremost is, as reported in the NYT article is a “chilling effect on companies that engage in due diligence work for global companies, many of whom believe the couple may have been unfairly targeted.” The WSJ article went further quoting Geoffrey Sant for the following, “It impacts all attempts to do business between the U.S. and China because it will be very challenging to verify the accuracy of company or personal financial information.” In other words, things just got a lot tougher to perform, what most companies would expect to be a minimum level of due diligence.

Second is the time frame noted in the court statements as to the time of the violations, from 2009 to 2013. Many had assumed that Humphreys and Yingzeng’s arrests related to their investigation work on behalf of the British pharmaceutical giant GlaxoSmithKline PLC (GSK) which was trying to determine who had filmed a sex tape of the company’s head of Chinese operations, which was then provided to the company via an anonymous whistleblower. This would seem to beg the question of whether the couple would have been prosecuted if they not engaged in or accepted the GSK assignment.

But as Elton John asked, “Where to now St. Peter?” You should always remember that performing due diligence is but one of five steps in the management of the third party life cycle. If you cannot perform due diligence at a level that you do in other countries or that you could even have done in China before the Humphreys and Yu trial, you can beef up the other steps to help proactively manage your third parties. I often say that your real work with third parties begins when the contract is executed because then you have to manage the relationship going forward. So, if you cannot perform the level of due diligence you might like, you can put more resources into monitoring the relationship, particularly in the area of invoice review and payments going forward.

In a timely article found in this month’s issue of the SCCE magazine, Compliance and Ethics Professional, Dennis Haist and Caroline Lee published an article, entitled “China clamps down on bribery and corruption: Why third-party due diligence is a necessity” where they discussed a more robust response to the issue as well. They note that the retention of third party’s to do business in China is an established mechanism through which to conduct business. They advise “For multinationals with a Chinese presence, or plans to enter the market in the near future, now is the time to pay close attention to the changing nature of the business landscape as it relates to bribery and corruption.” Further, they suggest that “In order to ensure compliance with ABAC [anti-bribery/anti-corruption] regulatory scrutiny, multinationals must demonstrate a consistent, intentional and systematic approach to third-party compliance.” But in addition to the traditional background due diligence, they believe that companies should consider an approach that moves to proactively managing and monitoring third parties for compliance. Lastly, at the end of the day if a regulator comes knocking from the Department of Justice (DOJ) or Serious Fraud Office (SFO), you will need to demonstrate the steps you have put in place and your active management of the process.

In the FT, WSJ and NYT articles it was clearly pointed out that the invisible elephant in the room was GSK. Also it is not clear what the personal tragedy that Humphreys and Yu have endured will mean for GSK or the individuals caught up in that bribery scandal going forward. Humphreys had previously said that he would not have taken on the GSK sex tape assignment if it had been disclosed to him that the company had sustained allegations of corruption by an internal whistleblower. Perhaps one lesson may be that in the future companies will have to disclosure more to those they approach to perform such investigative services.

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

Nixon Announces Resignation; GSK Just Resigns

On this day, 40 years ago, President Richard Nixon announced that he would resign the Office of the President, effective the next day on August 9 at noon. I can still remember my father instructing us to watch the resignation speech on television because, as he put it, it was history in the making. Before a nationally televised address to the country, Nixon said, “By taking this action,” he said in a solemn address from the Oval Office, “I hope that I will have hastened the start of the process of healing which is so desperately needed in America.” His action was hastened along by the Articles of Impeachment voted by the House of Representatives relating to his involvement with the Watergate Affair. With his resignation, Nixon was finally bowing to pressure from the public and Congress to leave the White House.

Yet, even before this truly historic speech and spectacle the next day of Nixon helicoptering off the South Lawn of the White House, Nixon had transformed the America we all lived in. One area that resonates up to this day is his opening with China. If it had not been for Nixon and his Secretary of State Henry Kissinger’s efforts, we might have waited a long time for an opening with China. But Nixon went there and opened China up to do business with the US and indeed the rest of the western world.

Unfortunately one of the much later fallouts from this visit and opening of China has been the corruption investigation by Chinese authorizes against western companies but most publicly the British pharmaceutical giant, GlaxoSmithKline PLC (GSK). And, more unfortunately, the bad news for GSK continues to trickle out into the press.

Next week, Shanghai’s No. 1 Intermediate People’s Court is scheduled to open a trial against Peter William Humphrey, a 58-year-old British national, and his wife, Yu Yingzeng, a 61-year-old American, on charges of illegally purchasing personal information about Chinese nationals. While the trial had originally been planned to be closed to the public, last month Chinese officials announced that the trial would be ‘open’ although the degree of openness is not completely clear.

Not only will the trial be open but the couple’s son, Harvey Humphrey, was allowed visited his parents in their detention center in Pudong, Shanghai, for the first time since their arrest. The visit came after some fierce lobbying by the US and UK consulates. As reported in the online publication FiercePharma, in an article entitled “GSK private eyes’ son allowed first visit to parents in China jail as trial nears”, their son said, “They didn’t quite believe I was coming. They were quite overwhelmed. My mum was shocked. My dad held himself together,” the younger Humphrey told the paper. “It’s a bit unusual for the Chinese to do this. I feel something has changed in the Chinese approach to my parents.” Son Harvey had written to the GSK’s Chief Executive Officer (CEO) Sir Andrew Witte last December to “take a few minutes to raise my father’s case” during a visit to the country, he told the Financial Times (FT), “I understand everything is complicated in China but it seems my parents are paying a big price”. But at this point there is no word on what if any involvement GSK might have in his parent’s defense.

It may be that GSK is way too busy right now worrying about all the other issues surrounding bribery and corruption. In an article in the Wall Street Journal (WSJ), entitled “FBI, SEC Start Glaxo Inquiries Over China”, Christopher M. Matthews and Hester Plumridge reported that in late July “Glaxo received an anonymous email claiming its employees in Syria bribed doctors and pharmacists over the past five years to promote products including painkiller Panadol and toothpaste Sensodyne. The bribes took the form of cash payments, speaking fees, trips, free dinners and free samples, said the email, which was reviewed by The Wall Street Journal. The email cited names and dates. Syrian health officials allegedly received bribes from Glaxo employees to fast-track registration of its Sensodyne dental products, including cash payments and a trip to a 2011 conference in Rome, the email maintains. Glaxo employees also were involved in smuggling a narcotic product from Syria into Iran, the email alleges. The product in question, pseudoephedrine, is a raw ingredient of Glaxo’s congestion medicine Actifed.”

GSK once again reiterated its previously announced position that it was firmly against the payments of bribes by its employees. In response to the allegations of bribes paid in Syria the WSJ article said, “Glaxo said it would thoroughly investigate all claims made in the Syria email, and said it has asked the sender for more information. The company said it has zero tolerance for unethical behavior, adding, “We welcome people speaking up if they have concerns about alleged misconduct.”” Too bad GSK didn’t seek more information about its Chinese operations when the company’s internal investigation came up with no evidence of bribery and corruption.

Much more problematic for GSK is the fact that both the SEC and DOJ have opened formal investigations into allegations of bribery and corruption by the company. The WSJ piece notes, “Federal Bureau of Investigation agents have been interviewing current and former GlaxoSmithKline employees in connection with bribery allegations in China, according to a person familiar with the matter, as fresh claims of corruption surfaced against Glaxo’s operations in Syria. The interviews have taken place in Washington, D.C., in the past few months and are part of a Justice Department investigation into Glaxo’s activities in China, the person added. The U.S. Securities and Exchange Commission also is investigating the company’s business in China, according to people familiar with the matter.”

As readers of this blog will recall from previous posts, in 2012 GSK pled guilty and paid $3 billion to resolve fraud allegations and failure to report safety. The press release noted that the resolution was the largest health care fraud settlement in US history and the largest payment ever by a drug company for legal violations. The criminal plea agreement also included certain non-monetary compliance commitments and certifications by GSK’s US president and Board of Directors, which specifically included an executed five-year Corporate Integrity Agreement (CIA) with the Department of Health and Human Services, Office of Inspector General. The plea agreement and CIA included provisions which required that GSK implement and/or maintain major changes to the way it does business, including changing the way its sales force is compensated to remove compensation based on sales goals for territories, one of the driving forces behind much of the conduct at issue in the prior enforcement action. Under the CIA, GSK is required to change its executive compensation program to permit the company to recoup annual bonuses and long-term incentives from covered executives if they or their subordinates, engaged in significant misconduct. GSK may recoup monies from executives who are current employees and those who have left the company. Additionally, the CIA also required GSK to implement and maintain transparency in its research practices and publication policies and to follow specified policies in its contracts with various health care payors.

The importance of the CIA for this anti-corruption investigation is that it not only applied to the specific pharmaceutical regulations that GSK violated but all of the GSK compliance obligations, including the Foreign Corrupt Practices Act (FCPA). In addition to requiring a full and complete compliance program, the CIA specified that the company would have a Compliance Committee, to include the Compliance Officer and other members of senior management necessary to meet the requirements of the CIA; the Compliance Committee’s job was to oversee full implementation of the CIA and all compliance functions at the company. These additional functions required a Deputy Compliance Officer for each commercial business unit, Integrity Champions within each business unit and management accountability and certifications from each business unit. Training of GSK employees was specified as a key component. Further, the CIA specifically state that all compliance obligations applied to “contractors, subcontractors, agents and other persons (including, but not limited to, third party vendors)”.

GSK is now under investigation, either internally or by anti-corruption regulators across the globe in at least four countries. Unlike other companies that have found systemic issues of bribery and corruption or systemic failures in internal controls, the allegations of bribery and corruption are not 10-15 years old. So today we commemorate Nixon’s resignation; and for GSK it may simply mean just resignation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

© Thomas R. Fox, 2014

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

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

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

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

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

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

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

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

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

© Thomas R. Fox, 2014

Coolness in Being the Bad Guy? Eli Wallach and GSK

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

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

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

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

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

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

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

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

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

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

© Thomas R. Fox, 2014

C’Mon Man Or the End of the World?

It’s the end of the world as we know it,

It’s the end of the world as we know it

It’s the end of the world as we know it, and I feel fine

 The above lyrics came from REM and they reflect how I generally feel about law firm and lawyer pronouncements about the Foreign Corrupt Practices Act (FCPA) enforcement because [SPOILER ALERT] I am a lawyer, I do practice law and I do work for a law firm, the venerable TomFoxLaw. The FCPA Professor regularly chides FCPA Inc. for their scaremongering tactics, usually monikered as ‘Client Alerts’. Mike Volkov is even more derisive when he calls them the FCPA Paparazzi and cites examples from his days in Big Law, where law firm marketing campaigns are centered around doomsday scenarios about soon-to-occur FCPA; UK Bribery Act; or [fill in the anti-corruption law here] prosecutions and enforcement actions. I usually take such law firm scaremonger and blathering’s to be about worth as much as the paper they are printed on. Indeed I chide the FCPA Professor and Monsieur Volkov for their protestations. In other words, I feel fine.

I am a proud card-carry member of FCPA Inc. because not only can I spell FCPA (and UKBA for that matter), I also make FCPA related pronouncements from time-to-time and practice law in the FCPA space. I think we generally do a pretty good job of getting information out there. But last week one missive occurred that not only met the above impugning adjectives but created a veritable tsunami of mis-information as it made its way from China to Europe and to the US that even I thought was beyond the pale. How absurd was it? So absurd that not only did the FCPA Professor and I agree about it, but we decided to post blogs about it today.

On February 5 a law firm client alert stated, “While the number of enforcement actions may decrease or hold steady, we can expect some “blockbuster” settlements in 2014 of matters that have long been under investigation.” Blockbuster…really? Do you think this law firm was implying that the Siemens record FCPA fine of $800MM, plus its equivalent $800MM fine in Germany, that’s a total of $1.6 bn for those of you keeping score at home, is seriously in danger of falling by the wayside in 2014? How about Halliburton’s comparatively paltry $579MM penalty? To be slapped aside like a green-skinned witch yelling, “I’m melting!” BAE coming in at No. 3 with a measly $400MM must be quaking it is British Wellington boots about now.

As inane as this comment was, the thing that attracted my attention was the tidal force wave by which this quote rode its way all the way to the US. By February 10^th, this quote had morphed into the following, written in the South China Morning Post, “The United States is expected to impose “blockbuster” fines on companies bribing foreign officials this year, with China a likely target of US investigations, lawyers say. A report by US law firm WilmerHale predicts “blockbuster” settlements under the Foreign Corrupt Practices Act (FCPA). “US enforcement authorities have stated there are a number of very large settlements in the pipeline,” said Jay Holtmeier, a partner at WilmerHale. “Given the attention paid to China in recent years, it is a safe bet some of those large settlements will involve conduct in China.”” Two days later the full storm reached the shores of the US when this article was referenced in the Wall Street Journal’s (WSJ’s) Corruption Currents.

So now not only do we have ‘blockbuster’ FCPA settlements coming; we will have them coming out of China. Various marketing departments will use these statements as ‘authoritative’, yet another reason to purchase their company’s products or services.

There are plenty of great FCPA resources out there, which inform the compliance practitioner, or indeed the non-compliance specialist, about the costs of a FCPA enforcement action. But more importantly there is more than a wealth of free, at no cost, information about how to craft a compliance program with any anti-corruption law, which currently exists. There is the same amount of information about how to ‘do compliance’, once again free and available at no charge. Is it marketing? My answer is either yes or better yet; who cares? Good solid information is good solid information no matter what the motives behind putting it out there are.

But here is the problem with making such statements which newspapers then follow them up by brandishing them as even more dire predictions. Someone might actually believe it. Next Congress will want to investigate these ‘blockbuster’ settlements or, perhaps, why after it was reported that they were coming, the Department of Justice (DOJ) did not have any ‘blockbuster’ settlements in 2014?

I thought about writing this blog post around the tale of the Boy Who Cried Wolf but I realized there is always another law firm or lawyer out there will to say the end of the world is coming “this year”. But perhaps the better analogy is the ESPN segment entitled “C’Mon Man!” during which each color commentator will describe a play or series of plays that made them scratch their heads and say “C’Mon Man!” So while I generally feel fine about the information disseminated by and from FCPA Inc., my suggestion is that everyone just take a deep breath and consider such information for what it is worth.

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

What Hath GSK Wrought? More Compliance Lessons from China

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

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

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

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

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

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

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

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

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

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

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

© Thomas R. Fox, 2013