Opposite Ends of the FCPA Spectrum
Richard Steinberg 270004HRBG email@example.com | | Tags:  morgan compliance fcpa stanley grc wal-mart openpages sec | 0 Comments | 1,909 Visits
Chief Compliance Officers, General Counsels and other business executives have long been pushing regulators to provide clarity around the FCPA and more consistent (and appropriately fair) enforcement. Well, companies finally have something reasonably definitive to look at which shows how a well-constructed compliance program implemented in good faith can have extremely positive consequences – it’s the recent Morgan Stanley case, which we’ll get to in a moment.
At the other end of the spectrum is the Wal-Mart fiasco. You know the story – senior Wal-Mart executives knew of millions of dollars being paid to government officials in Mexico to aid expansion in that country, but shut down an investigation. The Justice Department and Securities and Exchange Commission are all over this, and things will not go well for the company. The last thing the DOJ or SEC looks favorably on is executives not reporting a suspected or known violation, and not conducting a full and comprehensive internal investigation. Now proxy advisory firms ISS and Glass Lewis, as well as major public pension funds, are recommending that Wal-Mart shareholders vote against members of the board of directors for neglecting their responsibilities. And there are indications the bribery might extend beyond the Mexican subsidiary. The stock price has taken a hit, the company faces potentially huge fines, executives could wind up in prison, and investors are suing. As is often the case, it’s not so much the bad action, but the cover-up. And it’s also whether the system, here the compliance process, was well designed, implemented and maintained.
Now to Morgan Stanley. The DOJ and SEC have long said that in enforcement actions they give credit to companies for already having a good compliance system in place, but we’ve seen little direct evidence of that. But now we have a game changer. The problems at Morgan Stanley reportedly arose when Garth Peterson, a managing director, successfully pushed for the firm to sell a real estate interest to a Chinese state-owned company, but it turned out to be a shell company in which Peterson had a direct interest, with related cash payments to himself and a Chinese official. Peterson pleaded guilty, facing a potential six-figure fine and five years in prison. But what happened to Morgan Stanley, or didn’t, is the real story here. The DOJ and SEC decided not to bring an enforcement action against the company. The reason – Morgan Stanley has had a strong compliance system, including relevant internal controls. It regularly updated controls to reflect risks of misconduct, and provided extensive training to its personnel, compliance reminders, annual confirmations by personnel, and continuous monitoring. And, when evidence of misconduct surfaced, the firm immediately began and conducted a thorough investigation.
So, there we have two well-known brand-name companies, one of which is likely to pay a high price, the other none at all and whose reputation is enhanced. The message now is clearer than ever. Engage in a cover-up, and deal with forceful regulators and angry shareholders. Have an effective compliance system and do the right thing, and the regulators and others will indeed look favorably upon the company.