Tag: compliance policies

Categories
31 Days to More Effective Compliance Programs

One Month to More Effective Written Standards: Day 14 – The Problem with Facilitation Payments

The original version of the Foreign Corrupt Practices Act (FCPA), enacted in 1977, contained an exception for payments made to non-US officials who performed duties that were “essentially ministerial or clerical”. In 1988 Congress responded by amending the FCPA under the Omnibus Trade and Competitiveness Act to clarify the scope of the FCPA’s prohibitions on bribery, including the scope of permitted facilitation payments. An expanded definition of “routine governmental action” was included in the final version of the bill, reflecting the intent of Congress that the exceptions apply only to the performance of duties listed in the subcategories of the statute and actions of a similar nature. Congress also meant to make clear that “ordinarily and commonly performed actions”, with respect to permits or licenses, would not include those governmental approvals involving an exercise of discretion by a government official where the actions are the functional equivalent of “obtaining or retaining business for, or with, or directing business to, any person.”

Three key takeaways:

  1. Many companies still struggle with facilitation payments.
  2. What are the five listed purposes for facilitation payments?
  3. The facilitation payment exception is narrowly construed by both the courts and the Justice Department.

For more information, check out The Compliance Handbook, 4th edition, here.

Categories
31 Days to More Effective Compliance Programs

One Month to More Effective Written Standards: Day 13 – Policies on Political Contributions

The FCPA states, “The FCPA’s anti-bribery provisions apply to corrupt payments made to (1) “any foreign official”; (2) “any foreign political party or official thereof”; (3) “any candidate for foreign political office”; or (4) any person, while knowing that all or a portion of the payment will be offered, given, or promised to an individual falling within one of these three categories. Although the statute distinguishes between a “foreign official,” “foreign political party or official thereof,” and “candidate for foreign political office,” the term “foreign official” in this guide generally refers to an individual falling within any of these three categories.” Government policies affect the commercial environment. A company is subject to legislation and regulation that affects how it conducts its business and generates value for its investors. Participating in the political process is part of a business strategy to protect a company’s interests.

Most international businesses have strategy to engage in the political process with a view to the long-term interests of the company and to promote and protect its interests. All political contributions and expenditures on behalf of the Company and management reports on these political contributions and expenditures should be reported to the Board of Directors annually. No political contributions may be made or promised unless written pre-approval has been obtained from the corporate compliance function.

Three key takeaways:

  1. Political candidates are covered by the FCPA.
  2. What is the business purpose for the contribution?
  3. Do not make contributions towards candidates who can award your company business.

For more information, check out The Compliance Handbook, 4th edition, here.

Categories
31 Days to More Effective Compliance Programs

One Month to More Effective Written Standards: Day 11 – Charitable Donation Enforcement Actions

When is a rose not a rose? When it is a charitable donation not made for philanthropic purposes and violates the FCPA. This was a feature of the Eli Lilly and Company (Lilly) FCPA enforcement action brought by the SEC in 2012, involving a bribery scheme utilized by Lilly in Poland. The scheme and FCPA violations mirrored an earlier FCPA enforcement action, also brought by the SEC as a civil matter, rather than by the DOJ as a criminal matter, against another U.S. entity Schering-Plough, for making charitable donations in Poland which violated the FCPA. One of the remarkable things about both of these enforcement actions, brought almost eight years apart, was that they involved improper payments to the same Polish charitable foundation to wrongfully influence the same Polish government official to purchase products from both of these companies.

Three key takeaways:

  1. Every compliance practitioner should study both the Lilly and Schering-Plough enforcement actions.
  2. What is the purpose of the charitable entity you are making a donation to?
  3. “Document, Document, and Document” your due diligence around donors.

For more information, check out The Compliance Handbook, 4th edition, here.

Categories
31 Days to More Effective Compliance Programs

One Month to a More Effective Written Standards: Day 10 – Policies and Procedures on Gifts and Business Entertainment

If one were to reflect upon the providing of gifts and business entertainment to foreign governmental officials, one might reasonably conclude that after 40 years of the FCPA, companies might follow its prescriptions regarding gifts and business entertainment. However, there have been some notable FCPA enforcement actions in this area.
The 2012 FCPA Guidance clearly stated the FCPA does not ban gifts and entertainment. Indeed, it specified, “A small gift or token of esteem or gratitude is often an appropriate way for business people to display respect for each other. Some hallmarks of appropriate gift-giving are when the gift is given openly and transparently, properly recorded in the giver’s books and records, provided only to reflect esteem or gratitude, and permitted under local law. Items of nominal value, such as cab fare, reasonable meals and entertainment expenses, or company promotional items, are unlikely to improperly influence an official, and, as a result, are not, without more, items that have resulted in enforcement action by DOJ or SEC.”
These guidelines must be coupled with active training of all personnel, not only on a company’s compliance policy, but also on the corporate and individual consequences that may arise if the FCPA is violated regarding gifts and business entertainment. Lastly, it is imperative that all such gifts and business entertainment be properly recorded, as required by the books and records component of the FCPA.
And, as always, do not forget the gut check test.

Three key takeaways:

  1. Gifts and business entertainment continue to plague companies for compliance violations.
  2. The key is not the amount but of having a policy and procedure and following it.
  3. Always remember to record gifts and business entertainment expenses correctly.

For more information, check out The Compliance Handbook, 4th edition, here.

Categories
31 Days to More Effective Compliance Programs

One Month to More Effective Written Standards: Day 9 – Dynamic Compliance Policies

One of the key changes coming out of the Covid-19 pandemic is the need for dynamism on corporate policies. This message was driven home in a  MIT Sloan Management Review article,“Turbulent Times Demand Dynamic Rules”. The authors believe, “Circumstances can change rapidly in an uncertain world — organizational rules should be designed to change along with them.”

This concept is most appropriate in the compliance arena in the area of risk management. As your risks change, your management of those risks should adapt to the new reality. This is why the DOJ intoned in the 2023 Evaluation of Corporate Compliance Programs (ECCP) that you should assess your risks as they change, modify your risk protocols, monitor your risk management strategy and then update your compliance programs through continuous monitoring.

This dynamic policy process can build dynamic rules to enhance your company’s ability to anticipate and cope with risk changes. When the corporate compliance function embraces experimentation and learning in the creation and reformulation of policies, it builds flexibility into the organization’s structure, processes, and practices. This type of flexibility is essential as we have moved from disaster recovery to business resiliency to business as usual, especially in the field of risk management.

Three key takeaways:

1. After Covid-19, your policies must be as dynamic as your business.

2. There are three general areas to improve the dynamic features of policy creation and improvement; transparency, experimentation and innovation.

3. Garner feedback from your users on the effectiveness of your compliance policies.

For more information, check out The Compliance Handbook, 4th edition, here.

Categories
FCPA Compliance Report

FCPA Compliance Report – Maria D’Avanzo on the Intersection of AI, ChatGPT and Compliance

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In the latest episode of FCPA Compliance Report, Maria D’Avanzo from Traliant returns to discuss the intersection of AI, ChatGPT, and compliance. The recent Federal Trade Commission investigation into OpenAI serves as a reminder of the importance of staying up to date on the latest developments in the field of AI technology and the potential implications of such developments. With AI and Chat GPT being powerful tools that can automate processes and generate content, organizations must implement AI Policies and Training to ensure these technologies’ safe and responsible use. AI Compliance Training is necessary to educate employees on the risks posed by AI technology and to guarantee that their compliance program is robust and effective. Organizations must create a comprehensive policy and provide ongoing training to ensure AI’s safe and responsible use.

Key Highlights:

  • AI and Chat GPT Consequences
  • AI Policy and Training
  • Creating a Policy
  • AI Compliance Training
  • FTC OpenAI Investigation

Resources:

Maria D’Avanzo on LinkedIn

Traliant

Tom Fox

Threads

Instagram

Facebook

YouTube

Twitter

LinkedIn