Ten Compliance Issues from 2011

I have seen several lists of the Top Foreign Corrupt Practices Act (FCPA) issues of 2011. Sam Rubenfeld and Chris Matthews at the Wall Street Journal’s Corruption Currents have been interviewing several of the top legal practitioners on their thoughts. The ever-present Mike Volkov has weighed in with his list and his “Person of the Year”, the Chief Compliance Officer. Howard Sklar and I even got into the video act by discussing our most significant issues in “This Week in FCPA”. So as part of the compliance commentariati, I submit, for your consideration, my Top Ten anti-corruption and anti-bribery issues over the past 12 months.

1.         Amendments to the FCPA? The Senate ended 2010 with hearings focusing on why there were not more individual prosecutions under the FCPA. In June, the House Judiciary Committee focused on ways to ease up on or gut the anti-corruption provisions of the FCPA in the name of US “competitiveness” overseas. Then in a stunning turnaround, the House Judiciary Chair asked the Department of Justice (DOJ) representative if the DOJ would support a ban on all commercial bribery, not just a ban on bribing foreign governmental officials. Then again he did say was drafting amendments to the FCPA which we haven’t heard about since the great theater in June.

2.         UK Bribery Act goes live. For many in the anglophile world, the event of the year was the marriage of Prince William to Kate Middleton. However, for us in the anti-corruption and anti-bribery world, it was effective date of the UK Bribery Act, July 1. While some had opined that the Bribery Act was “the FCPA on steroids” the initial prosecution under the Bribery Act was for a £500 bribe paid to a UK court clerk. Perhaps it just takes awhile for UK steroids to kick in.

 3.         Crystal Ball Reading. One does not have to read a crystal ball or tea leaves to know what should constitute a best practices compliance program. The DOJ continues to respond to calls for information by practitioners and the commentarati by providing solid information through which you can implement or enhance your compliance program. In addition to continuing to list the 12 points in a minimum best practices compliance program in each Deferred Prosecution Agreement (DPA)/Non-Prosecution Agreement (NPA) released; the DOJ has provided ‘enhanced compliance obligations’ in DPAs which provide information on evolving standards. Back in January, the DOJ provided information on areas of risk which should be assessed to inform your compliance program.

4.         Chief Compliance Officer Upgrade. With the effective changes in the federal sentencing guidelines from November, 2010 and the DOJ comments this year, it has become clear that companies must give a more prominent role to the Chief Compliance Officer and separate that function from that of the General Counsel.

5.         Investigating Private Equity. Both the DOJ and Serious Fraud Office (SFO) announced that they would be looking at private equity, in conjunction with anti-bribery and anti-corruption. Well known for cost reductions through cutting corporate budgets, they may become a prime and profitable set of targets for enforcement agencies.  Additionally, their unique structure of separately operating portfolio companies may greatly increase ownerships control and person risks. If you are in private equity and are reading this and have no clue what I am talking about, get on the phone to one of Howard Sklar’s recommended FCPA counsel ASAP.

6.         It Just Can’t Get any Weirder. Just when you think you have seen it all in the FCPA world, News Corp., is accused of bribing Scotland Yard to further its newspaper business and it is also alleged that a lawyer representing a US company in Mexican litigation attempts to bribe a court official to obtain a favorable ruling. Then, of course there is Olympus, which not only fires its whistle-blowing Chief Executive Officer (CEO) for questioning Red Flag payments to agents, which reveals that it has been engaged in a decade long corporate fraud. But here’s the topper in my book, someone posted a comment to my blog post about Tyson’s Foods paying bribes to the wives of Mexican food inspectors to obtain ‘favorable treatment’. She said the following “The meat being TIF-certified for export was not meat distributed to U.S. The meat was being exported to countries such as Japan and other Asian destinations.” I am sure that is of great comfort to the folks in “Japan and other Asian destinations”. Memo to Tyson: Call Gini Dietrich at Spin Sucks for some serious PR help.

7.         Plaintiff’s Bar gets that old time (FCPA) religion. The FCPA was used, in a somewhat novel manner, in three civil actions which may portend an entire new wave of private and civil FCPA litigations. In SciClone a shareholder derivative action was filed after the announcement of a FCPA investigation. During the pendency of a FCPA investigation, this civil action was settled with the company agreeing to implement a best practices compliance program. In Alba v. Alcoa a company whose employees were allegedly paid bribes (Alba) sued the alleged bribe-payor (Alcoa) for damages in driving up the costs for products sold because of the corrupt acts of Alcoa. In ICE, the Costa Rican telecom company sought to use the victim restitution component to allow it to participate in the DOJ’s FCPA settlement with Alcatel-Lucent.

8.         Rule of Law. Several DOJ prosecutions of individuals under the FCPA have brought a plethora of legal rulings to flesh out legal standards under the FCPA. In the spring, there were district court rulings on whether a state owned enterprise is covered by the FCPA and an analysis of what constitutes a state owned enterprise. These cases will probably be appealed so we may have the first US court of appeals’ interpretation of the FCPA in quite some time.

9.         Wide World of Enforcement. More countries are implementing new anti-corruption laws and more resources are being dedicated to enforcement. The US has had significant cooperation with the UK SFO and Financial Services Association (FSA) and this will increase with the go live date of the Bribery Act. However, the BRIC countries have passed, or are considering, significant anti-corruption laws. The US is starting to coordinate and share more information with these countries — China being the most significant.  For global companies, this increase will portend greater numbers of fines and penalties and will complicate international settlement efforts.

10.       Year of the FCPA Trial. This was the year that the DOJ brought out the big trial guns for three very high profile FCPA trials: the Gun Sting cases; Lindsey Manufacturing; and Haitian Telecom. The resolution results have been mixed, with convictions in Lindsey and Haitian Telecom; mistrial in the first of four Gun Sting trials and some dismissals in the second Gun Sting trial. However, the government has taken a black eye for some procedural missteps, particularly the judge throwing out the entire guilty verdict for prosecutorial misconduct in the Lindsey Mfg. case.

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, 2012

Top Ten 2011 Enforcement Actions-Corporate Division

As December is a time for reflection on the past twelve months, I have been considering the FCPA Enforcement Action year. I submit for your consideration my Top 10 FCPA Enforcement Actions for 2011 in the Corporate Division. Happy and Safe New Year to all and we will see you next week in 2012 with our list of Top FCPA issues from 2011.

1.         Alcatel-Lucent ($137MM) or non-cooperation will cost you.-the company lost between $10MM to $20MM in penalty reduction because its initial investigative counsel did not fully cooperate with the DOJ after self-disclosure.

2.         AON-($16.2MM)(NPA) or it’s still not a good thing to send that foreign official to Disneyland-the world wide insurer Aon was issued an NPA for setting up a “educational fund” which paid for travel and entertainment of Nicaraguan insurance officials and then not recording it properly.

 

3.         Armor Holdings ($10.29MM)(NPA) or you can step back from the abyss-the company which had 92 separate instances of disguising bribes yet was able to obtain a NPA, through self-disclose, cleaning house, remediation and implementing a best practices compliance program.

4.         Bridgestone ($28MM)-don’t double down a FCPA violation by adding Anti-Trust violations–the company was found to have engaged in both bribery of foreign officials by using such corrupt acts in furtherance of bid-rigging.

5.         JGC ($218.8MM)-and then there were none–the final corporate conclusion of the infamous Bonney Island, Nigeria Bribery Scandal. Joining with previously settled defendants, Halliburton, Technip and Snamprogetti/ENI to bring a total settlement amount of over $1.5 billion. Four of the top 6 FCPA settlements of all-time came out of this enforcement action and that does not even count the $147MM in disgorgement agreed to by Jeffery Tessler.

6.         Johnson and Johnson ($77MM)-enhanced compliance obligations, the new normal?-not only did J&J agree to implement a minimum best practices compliance program, it also agreed to “enhanced compliance obligations”.

7.         Maxwell Technologies ($14.3 MM) –start you day with a risk assessment–one of several cases where the DOJ specified some of the parameters of the risks you should assess to inform your compliance program. Further the implementation or enhancement of any anti-corruption compliance program should occur after and not before you complete your risk assessment. (Same holds true for the UK Bribery Act)

8.         SciClone ($2.5MM to date) or the plaintiff’s bar finds compliance–not an enforcement action but the settlement of a shareholder derivative action during the pendency of a FCPA investigation, where the company agreed to implement a best practices compliance program. Settlement of the enforcement action is yet to come.

9.         Tenaris ($8.9MM) or the SEC joins the DPA party-the first instance of the SEC entering into a Deferred Prosecution Agreement for the settlement of civil FCPA violations.

10.       Watts Water ($3.7MM) or it is a good thing to keep up with the news-the company’s General Counsel read about an enforcement action involving a non-related company in a different industry but with the same sales model as his company and wondered if it the same sales model might be a FCPA problem for his company. It was.

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, 2011

Tommy Can You Hear Me: Can the FCPA Be a Trigger for Civil Unfair Competition?

I was lucky to see Roger Daltrey perform the rock opera Tommy this past weekend. For those of you who do not know the story line, it is about a boy who becomes deaf, dumb and blind due to a trauma but later regains all three senses, largely through looking into a mirror. I thought about the metaphor of looking into a mirror but seeing something different while reading an article in the most recent issue of the ABA Business Torts Litigation Section Newsletter, entitled “Use of the FCPA in State-Law Unfair Competition Cases”, Edward Little, Jr. explores the question of whether the Foreign Corrupt Practices Act (FCPA) can serve as the basis for a predicate act for civil liability under state unfair competition laws. He makes a powerful case that such lawsuits may be the next frontier for FCPA cases.

Little begins with a background review of the FCPA and then moves to cases currently en vogue which use a FCPA violation as a trigger to prove a violation of additional civil relief under other state or federal laws. He notes the prime example is currently shareholder derivative actions where shareholders are essentially “standing in the shoes of the company and alleging that the directors harmed the company by engaging themselves in FCPA violations or failing to take steps to prevent violations by subordinates.” Although settled after Little’s article was published, the most recent prime example of this phenomenon was the settlement of the SciClone Pharmaceutical case, which was announced last week.

Little next noted that the violation of the FCPA may provide a basis for civil liability under federal or state anti-trust laws, “especially when it is proved that the foreign bribery had an anti-competitive effect within the United States.” Little pointed to the example of two Phillip Morris subsidiaries which bribed officials in several South American countries “to obtain price controls on tobacco.” There was also a recent FCPA/anti-trust enforcement action against Bridgestone which may provide such a trigger.

Little turned to state unfair competition laws which, if based on the Revised Uniform Deceptive Trade Practices Act, can “provide severe penalties for violations of federal and state laws when committed in trade or commerce.” These penalties can include treble damages and attorneys’ fees. He pointed to a currently pending litigation matter styled “Newmarket Corp. v. Innospec, Inc. Civil Action No. 10-503-HEH (E.D Va.)” in which Newmarket has brought claims under the Sherman Act, the Robinson-Patman Act and the state of Virginia Business Conspiracy Act. This state law makes illegal “combinations of two or more persons for the purpose of willfully and maliciously injuring another in his…business…”

Little concludes his article by stating that since the FCPA does not provide a private right of action, companies damaged by conduct made illegal under the FCPA “will likely turn to state law remedies” to seek redress. This can be especially so where the recalcitrant party admits to guilt and obtains a Deferred Prosecution Agreement (DPA). He ends by stating that “plaintiffs have a strong incentive to argue that the bribery of foreign officials has harmed them domestically and [such conduct] constitutes unfair competition that broad state statutes were designed to prevent.”

Most states have some type of law which broadly declares that “unfair methods of competition are…unlawful.” If a company admits to guilt under the FCPA the facts of liability are laid out in the DPA. There is some discussion of the amount of bribes paid, usually referencing both the monetary value of the contract or other business obtained through the conduct, which laid the predicate for the FCPA violation. Lastly, there is often a specific amount of money identified as profit disgorgement that is remitted to the government. Doesn’t this sound something like “Did the defendant engage in illegal conduct which impacted the plaintiff?” and “If so, what are the plaintiff’s damages?”

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, 2011

SciClone FCPA Lawsuit Settlement: New Enhanced Best Practices?

In a story in the D&O Diary, entitled “More Woes for Companies with Chinese Connections”, Kevin LaCroix discussed the settlement reached by the entity SciClone Pharmaceuticals, and its individual defendant directors and officers, in litigation involving three consolidated derivative lawsuits that were filed following the company’s announcement that it was the target of Securities and Exchange Commission (SEC) and Department of Justice (DOJ) investigations for possible violations of the Foreign Corrupt Practices Act (FCPA). As reported by the FCPA Professor and others, within the first two weeks after the company’s announcement of the investigation there was a literal whirlwind of announcements by law firms of investigations of SciClone and the lawsuits which were consolidated into the settled action.

The FCPA does not provide for a private right of action, the announcement of a FCPA investigation can often bring civil lawsuits against the company, as nominal defendant, and certain of the company’s directors and officers. In the SciClone lawsuits, it was alleged that “the Individual Defendants, by reason of their failure to implement and maintain internal controls and systems at the Company to assure compliance with the FCPA, breached their fiduciary duties and may be held liable for damages.” As reported by LaCroix the parties have agreed, subject to court approval, to resolve the consolidated actions based on the company’s agreement to adopt certain specified corporate governance reforms and their agreement to pay $2.5 million in plaintiffs’ attorneys’ fees. The payment of the plaintiffs’ attorneys’ fees is to be made by “SciClone’s insurers under its director and officer insurance policy.”

SciClone has a large amount of its business in China and on its website announces, “SciClone’s goal is to grow sales of our significant marketed portfolio in China”. As noted by LaCroix, “The existence of the FCPA investigation underscores the challenges facing companies attempting to do business in China.” This “China-centric” business focus may have led to some of the issues involved in the FCPA investigation.

The Settlement has several features that are well worth noting by the compliance practitioner.

Clawbacks

In addition to agreeing to seek to retrieve any incentive-based compensation from company officers in the event of  an earnings restatement, SciClone is required to “take legal action to recoup” all incentive-based compensation “paid to the director, officer, employee, or independent contractor” that was earned if an “Established Violation” is found. An Established Violation is defined to be “a guilty plea or other admission of guilt under penalty of perjury, or a criminal or civil judgment or sanction.” This requirement on a company is something not generally or previously seen. The requirement against third party “independent contractors” is also a new wrinkle. Is this language broad enough to include agents, resellers, distributors or any other monikered foreign business partner?

Compliance Coordinator

The Settlement goes into substantial detail about the creation of a new position within SciClone named “Compliance Coordinator”. While never calling this position the Chief Compliance Officer, the Compliance Coordinator has many roles usually associated with that position. In addition to the duties of the Compliance Coordinator, which will be enumerated below, the position requires fluency in both English and Mandarin. Other requirements of the Compliance Coordinator include:

• A senior profession with FCPA compliance experience, who would be a part of the executive management team.
• Knowledge of and experience with the types of compliance issues faced by SciClone.
• The Compliance Coordinator shall report directly to the Audit Committee of the Board of Directors on all compliance efforts going forward through no less than quarterly and annual reports.
• Provide an annual assessment of the Company’s compliance program and perform unannounced site visits to China to ensure compliance with the program.
• Liaise with a designated compliance “point person” at all locations other than the home office of the Compliance Coordinator.
• The Compliance Coordinator shall have the right to be present at any regularly-noticed meeting of the Board of Directors.

Compliance Program and Code of Conduct

The Settlement adopts the 13 point best practices compliance program as set for in all Deferred Prosecution Agreements (DPAs) since at least the Panalpina DPA of November, 2010. The Settlement also goes into some detail about the Code of Conduct specifically adding a component for “Health Care Professionals” as that is the type of business in which SciClone is involved.

Internal Controls, Use of Agents and Employee Training

In three separate sections of the Settlement, there are further requirements regarding “Internal Controls and the Compliance Function”; “Use of Foreign Agents and Distributors” and “Employee Compliance Training”. In the Internal Controls section the company’s Internal Auditor “shall report directly to the Audit Committee at least quarterly” and “shall provide a balanced assessment of significant legal compliance risks and effectiveness of the system of internal controls in managing these risks.” Regarding the use of foreign business partners, compensation should be “commercially reasonable” and the company should contractually limit compensation to “specific, identified tasks and should avoid large percentage-based commissions and success fees.” In the training section it is specifically noted that the training should be both in English and Mandarin.

The SciClone Settlement has several unique and interesting factors. The first is that is has great specificity for a civil settlement. One can only speculate but it would certainly appear that these compliance roles, policies and procedures were not in place and that the lack of them has led to at least one or more potential violations. Certainly not referenced anywhere in any of these proceedings is the role of the DOJ or SEC and how these compliance roles, policies and procedures may have been influenced by DOJ or SEC input, or how these might factor into any settlement  with the DOJ or SEC. This civil Settlement Agreement adds greater specificity to the 13 points of a minimum best practices compliance program that was set forth in the Panalpina settlement.

For a copy of the parties’ stipulation of settlement click 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, 2011