FCPA Compliance and Ethics Blog

November 7, 2013

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

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

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

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

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

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

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

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

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

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

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

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

© Thomas R. Fox, 2013

June 27, 2011

Silver Lining to the FCPA or How to Create Jobs by Following the Law

As most baseball fans know, the Houston Astros, after being tied with the Boston Red Sox through the first six games of the season with joint 0-6 records, the teams have gone their separate ways. The Red Sox have gone 44-25 and now lead the American League East. The Astros have gone 27-43 and now have the worst record in baseball. I mention this for two reasons; the first is that the Red Sox come to Houston for a 3 game set of Interleague Play, beginning July 1, so please wish us some luck as we will need it; and the second is the stunning triumvirate of articles which appeared Friday and Saturday in the Wall Street Journal (WSJ) and New York Times (NYT) pointing out the positives of the Foreign Corrupt Practices Act (FCPA). For those of you keeping score at home; it was two in the WSJ and one in the NYT.

Even at this point I cannot pronounce which of the three articles was more stunning for they all had aspects which have not been previously seen in print; that is, at least not in print in America’s top two newspapers.

I.                WSJ-Defense of the FCPA

One thing I had not expected to see in the WSJ was any type of defense of the FCPA. On Friday, June 24, reporter John Bussey wrote an article entitled, “The Rule of Law Finds Its Way Abroad-However Painfully.” He began his article by noting the internal investigation that Avon is currently conducting regarding possible violations of the FCPA and that Avon has spent over $100 million on this internal investigation to-date.

However, Bussey, quite quickly, moved into one of the positive aspects of the FCPA. He stated:

The silver lining? The FCPA—passed in 1977 and still controversial with many U.S. companies—may be proving more effective than any other U.S. initiative in extending the rule of law into developing markets. For all its warts, the rules are changing the often lawless marketplace abroad.

He went on to report  that while the US was initially a leader in enacting anti-bribery and anti-corruption legislation, many other countries have now passed similar legislation. Many US companies operate  internationally and “now heavily vet their potential suppliers, partners and acquisitions abroad and have extensive training and compliance programs on the FCPA. U.S. business groups from Egypt to Singapore to China run briefings on the law.” Further many US companies are now the “greatest proselytizers” of rules and regulations against corruption and bribery across the globe.

He also reported that the FCPA is having an effect on the world-wide fight against corruption and bribery. Jeffrey Eglash, a lawyer for GE was quoted as stating, “It’s having an impact, and vendors and suppliers increasingly adopt our policies and embrace our training.” Alexandra Wrage stated that what may have been acceptable conduct in the past, regarding bribery to obtain business, was no longer acceptable, “If a Wal-Mart or General Electric or Pfizer can convey to tens of thousands of partners, suppliers, distributors and other intermediaries world-wide that antibribery compliance is valued, the norms would change.”

II.             WSJ-Alcoa Speaks

In a second article on Friday, June 24, in the WSJ online edition, entitled “Alcoa Exec Says Business Leaders Should Stick Up For The FCPA”. Alcoa Vice President for Sustainability and Environment, Health and Safety, Bill O’Rourke, was quoted in remarks he made to the Carnegie Council roundtable earlier this month, on a question about the importance of having these anti-corruption rules, such as in the FCPA, in place and the interest of America in having anti-corruption and anti-bribery laws in place globally. O’Rourke stated in part:

It’s myopic for the business leaders not to take a stance. Business is in a position now to make more of an influence on how the world is run than we have taken. Business needs to stand up and take positions, and not be afraid to. They should be standing up and taking these positions. It’s even in their own self-interest to have those rules in place to protect us when we are in certain jurisdictions and we can point to them. That could be self-interest.

But it’s the right thing to do. It’s myopia that is going on in an awful lot of corporate practices—that this might hurt me or my image might get distorted because of that. It’s just the opposite. Your image might get raised a little bit if you start speaking out on the right issues.

O’Rourke provided a concrete example of how the FCPA had helped Alcoa in Russia when faced with numerous solicitations for bribes from towns Alcoa was transporting equipment through. Alcoa simply said they would not pay. It told the Russian federal government that if it wanted Alcoa’s business, which included its modern equipment to refurbish aging Russian factories, that Alcoa would not pay bribes to transport Alcoa equipment on trucks through Russia. He said the Alcoa approach worked because the company was “sticking to our guns.” The people in Russia realized that it was a benefit to do business with Alcoa and that they would make money the old fashioned way-by earning it.

III.           NY Times – Tyson Foods – Why No Prosecution of Individuals?

Taking a somewhat different approach, and certainly a different view, was James Stewart, writing in the Saturday, June 25 edition of the NYT in an article entitled, “Bribery, but Nobody Was Charged”. In this article, Stewart detailed conduct not only violative of the FCPA in Tyson Food’s Mexican food processing facility but also detailed discussions internal to Tyson about ways to shift the illegal payments after they were initially discovered.

Stewart reported that Tyson Foods’ Mexican food processing facility was paying the wives of the Mexican food inspector as if they were employees while they did no work at the facility. After this was discovered, a “group of executives ‘were tasked with investigating how to shift the payroll payments to the veterinarians’ wives directly to the veterinarians,’ according to a subsequent statement of facts negotiated by Tyson’s lawyers and the Department of Justice (DOJ). Stewart then wrote that a subsequent memo written by Tyson’s audit department concluded that the “doctors [the wives] will submit one invoice which will include the special payments formally [sic] being made to their spouses along with there [sic] normal consulting services fee.” The invoices would be identified as “professional honoraria.” Stewart found this conduct by Tyson to be one of “only finding a new way” to make the same payments which violated the FCPA. Stewart did name some of the Tyson Foods’ executives involved in the meetings detailed in the above events:

  1. President of Tyson International Operation – Gregg Huett
  2. Vice President for Operations
  3. Vice President for Internal Audit
  4. Chief Administrative Officer – Greg Lee

Stewart reported that when he contacted Tyson Foods’, a company spokesman told him that all company officials involved with this matter were “either no longer with the company or were disciplined.” I certainly hope those folks who engaged in or approved any bribery scheme were terminated.

IV.            The Upshot

What is the upshot of these three articles and how do they relate to the Astros and Red Sox? Just as the Red Sox have clearly turned their season around by getting back to their strengths, the FCPA has many strong, positive aspects which were not discussed in the recent House Judiciary Committee hearings on FCPA enforcement. In contrast to last year’s Senate hearings, neither Chairman Sensenbrenner nor any of the other House panel members seemed concerned about the lack of individual prosecutions under the FCPA. Stewart’s article clearly names some of the Tyson Foods’ executives who were involved in the decisions around the company’s conduct which was found to violate the FCPA but none of the named individuals were charged.

However, it was the two WSJ articles which seemed to most directly contradict the thesis that the House Republicans were trying to articulate; that somehow the DOJ’s enforcement of the FCPA is costing US companies jobs. It is not the FCPA which costs US companies jobs, but the failure of other countries to adopt and enforce the Rule of Law which allows companies from other foreign countries to engage in bribery and corruption which causes US companies to lose business. Both Bill O’Rourke of Alcoa and several persons interviewed by John Bussey for his article pointed out the positive benefits of the FCPA and how it allows US companies to lead the world into a stance of greater rejection of corruption and bribery to successfully secure and transact business.

Indeed, the Alcoa example is one precisely anticipated by the legislators who enacted the FCPA. In the Preamble to the FCPA, one of the reasons listed for its enactment is that by having such robust anti-corruption legislation in place, US companies could more easily resist the demand for payment of bribes by corrupt foreign officials. One of the guiding principles of a robust FCPA compliance and ethics business program for a US company is to have a Code of Business Ethics which prohibits bribery and other forms of corruption of foreign governmental officials and most US companies doing business internationally have such a Code in place. These Codes uniformly cite FCPA inspired language which prohibits such conduct. This enables a US company employee transacting business overseas to correctly and accurately state that his or her employer specifically prohibits the payment of bribes and engaging in corruption. Such a strong statement of US policy, when delivered by an individual employee, may be the strongest manifestation of the goal of this final prong listed in the Preamble to the FCPA; a tangible business reason, why a US company must not, cannot, and will not engage in corruption of a foreign official.

The House Committee also focused the alleged loss of jobs by US companies due to the FCPA. Just imagine how many jobs that Avon could have created if it had not engaged in “possible” FCPA violations and did not have to spend north of $100 MM to internally investigate these “possible” FCPA violations. Even Tyson Foods, with a scorecard of no individual prosecutions for self-admitted violations, could have used some of its reported $5.2MM in fines and penalties paid to the DOJ and Securities and Exchange Commission (SEC) to create jobs. So maybe the answer to job creation is not to amend the FCPA but that US companies should do as DOJ witness Greg Andres stated at the House hearing and not engage in bribery.

Alas the Astros have now become the first team to reach the 50 loss mark in the Major Leagues this year. Unfortunately it does not appear that the Astros have such strong basics to a fall back on this year so the only way the Astros may relate to this discussion of the FCPA is to conclude that we may only be able to enjoy the show the rest of the year.

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

March 23, 2011

Some Red Flags

Most compliance practitioners have heard the term “Red Flags.”  Red Flags are generally defined as circumstances which could place a reasonable person on notice that illegal or improper conduct has or may occur. A Red Flags does not mean that an action or transaction should immediately be terminated. It does mean that you should engage in an appropriate level of additional due diligence and investigation before moving forward.

In his blog posting yesterday entitled “On Anti-Money Laundering“, our colleague Howard Sklar, discussed a new anti-money laundering initiative from the Asset Forfeiture and Money Laundering Section of the Department of Justice. Howard has previously spoken of “compliance convergence” or the merging of control programs such as anti-bribery and anti-corruption with anti-money laundering. Inspired by Howard’s post and his use of “compliance convergence” this post will list some possible Red Flags that you should consider in three control areas: anti-bribery and and anti-corruption; anti-money laundering and with a nod towards the ever changing economic sanctions being levied against Libya, Red Flags regarding international economic sanctions.

I. Anti-Bribery and Anti-Money Laundering

  • Doing business in a high risk county
  • Allegations that the party has made facilitation payments to government officials.
  • Refusal to warrant compliance with the FCPA or other recognized anti-bribery or anti-corruption law.
  • Reluctance to participate in due diligence.
  • Allegations of illegal or unethical conduct.
  • Convictions for illegal conduct.
  • Any suggestion that laws or regulations or company compliance policies need not be followed.
  • Any suggestion that unethical conduct is custom or the norm in  country.
  • Refusal to follow your code of conduct.
  • Use of shell companies.
  • Ownership by or close relationship to a governmental official
  • Refusal to identify a principal of beneficial owner.
  • Recommendation of use by a governmental official
  • Refusal to sign a contract.
  • Lack of experience in the field.
  • Requirement of an usually high commission.
  • Insistence on payment in cash.
  • Insistence on payment in third party country or to an unrelated third party.
  • Request for advances.
  • Sharing of compensation with undisclosed parties.
  • Refusal to provide adequate invoices.
  • Offering to provide false invoices.

II.       Anti-Money Laundering

  • Named as a Designated Party, SDN or on any similar list.
  • Connections to countries identified as non-cooperative with international efforts against money laundering.
  • Providing false or misleading information.
  • Refusal to disclose the nature and source of assets.
  • Refusal to identify a beneficial owner.
  • Acting as the agent for an undisclosed principal.
  • Company address is not a physical site but a PO box.
  • Use of a shell company.
  • Lack of concern regarding risks or transaction costs.
  • Structuring transactions to avoid reporting requirements.
  • Offering to engage in transaction with no or little business justification.
  • A request that funds be transferred to an undisclosed third party or in another jurisdiction.
  • Any transaction designed to evade taxes.

III.    International Economic Sanction

  • Connections to US or UN sanctions or embargoes, including SDN, Denied Persons, Entity and Debarred Lists.
  • Requests that goods be exported to countries on an international boycott list.
  • Inaccuracies in any shipping documentation and invoicing.
  • Abnormal packing, marking or routing of goods.
  • Inconsistencies between goods and services of that usually offered by the company.
  • Declination of routine installation or training services.
  • Promised delivery dates and locations are vague or out of the way location.
  • A freight forwarding firm is listed as the final destination.
  • Shipping route is out of the ordinary.

As no one list of Red Flags can be exhaustive or final, you may wish to add Red Flags more specific to the risks appropriate to your company, such as those based upon the industry in which you conduct business, the locations where your company does business or other risk factor. If there are any additional ones you feel our readers should be aware of please list them in the Comments Section.

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

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