FCPA Enforcers Expand Scope for Companies and Executives
Richard Steinberg 270004HRBG firstname.lastname@example.org | | 0 Comments | 431 Visits
Regular readers of this blog undoubtedly are familiar with the FCPA and related Justice Department and SEC enforcement activities. On a personal note, I remember well when the FCPA was enacted, as I took on responsibility in my firm for providing our clients with analysis, guidance, and support materials to help deal with the new law. Emphasis was put as much on the Act’s internal control provisions, which require (with somewhat different terminology) effective systems of internal control over financial reporting – this of course, long before SOX. Companies did look at their internal control systems for opportunities for strengthening, but without required management reporting or auditor involvement, we did not see the kind of focus that came in more recent years under SOX. Significant attention was given to the bribery provisions, though with little regulatory enforcement activity for many years, attention subsequently waned.
But life under the FCPA now is very different. It’s reported that in the last four years 58 companies paid almost $4 billion in settlements – including Siemens (whose securities are traded in the U.S.) paying $800 million each to the German and U.S. regulators – and 42 individuals have been convicted. Early this year, for example, an oil company executive was sentenced to a two and one-half prison term. “I am truly sorry,” he said, “I lost touch.” At the moment some 78 companies are reportedly under investigation, including the likes of Alcoa, Avon, Goldman Sachs, HP, Pfizer, and Wal-Mart – it remains to be seen whether they will be formally charged. And we know that Rupert Murdoch’s News Corporation, among others, is in regulators’ sights.
There has been pushback by business, saying regulators have been overzealous and thereby stifling legitimate business initiatives – especially so with their going after not only companies but individual executives as well. The United States Chamber of Commerce is looking to have the law amended, with a Chamber official recently noting “The last time I checked, we were not living in a police state.” But enforcement officials don’t seem to be perturbed, with the assistant Attorney General making clear that the Department is expanding its staff and enforcement actions are on the rise. With that said, discussions between the groups have begun, and desired guidance may be forthcoming.
What to do? Clearly there’s no silver bullet. Close attention needs to be paid to ensuring strong compliance programs – which, importantly, the DOJ has said it will look to in a positive way when considering enforcement actions. Yes, further clarity has been requested from the Department in that regard, and we know about concerns with Dodd-Frank’s whistleblower provisions, but that shouldn’t stop compliance officers and senior managements from continuing efforts to strengthen internal programs. Many law and other firms have provided guidance on identifying high-risk areas and steps to be taken, which certainly are worth serious consideration. Among important areas of focus are risk assessment, policy management, clear authorities and fixed responsibility among line managers, real time communication, close monitoring by line management as well as compliance and internal audit personnel, and immediate and decisive action when red flags appear. It’s not easy, but with the Act in place and regulators expanding scope, close attention is critical.