Tag: Distributor Liability

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2 Gurus Talk Compliance

2 Gurus Talk Compliance – Episode 6 – The Risk of Distributors

What happens when two top compliance commentators get together? They talk compliance, of course. Join Tom Fox and Kristy Grant-Hart in their podcast, 2 Gurus Talk Compliance, as they dive into hot compliance topics. This episode covers the potential crisis with due diligence in China, highlights from the Compliance Week 2023 National Conference, and a recent fraud case. They also discuss strategies for managing distributor risk, stakeholder management, and the need for AI regulation. With its unique insights and engaging storytelling, this podcast is a must-listen for anyone in compliance. Take advantage of the latest episode of 2 Gurus Talk Compliance, and stay ahead of the curve!

Highlights Include:

·      Philips FCPA Enforcement Action and Distributor Risk Management

·      Stakeholder Strategy for Ethical Business Practices

·      Risks of Due Diligence in China for US Companies

·      Risks of Conducting Investigations in China

·      Quantitative skills, AI regulation, and challenges

·      Tech Hearings & Messaging Compliance Reform

·      The Problems with Ephemeral Messaging and Hot Desking

·      The Myth of Informal Office Collaboration

·      IRS Scam Calls and Sanctions Compliance

 Resources 

  1. Board governance and Strategy in a Changing Economic Landscape.
  2. How to Create a Stakeholder Strategy
  3. Messaging crackdown
  4. Corporate Crime and National Security
  5. Philips pays SEC $62 million to resolve China FCPA violations
  6. U.S. Companies in China Worry Due Diligence Will End in Spy Dramas
  7. OpenAI Founder Calls for the Global Regulation of Artificial Intelligence
  8. Why Employees Hate Hot-Desking
  9. Travis County cautions of ongoing jury duty fraud calls

Connect with Kristy Grant-Hart on LinkedIn

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31 Days to More Effective Compliance Programs

One Month to a More Effective Compliance Program for Business Ventures – Distributor Liability Under the FCPA

Three enforcement actions made clear that there were no distinctions between agents and distributors. They were the Smith & Nephew, Inc., Oracle (2012 and 2022), and Eli Lilly and Company. Each of these enforcement actions had different FCPA violations, and they each revealed separate steps a company should take to prevent and detect FCPA violations in their company.

These three separate bribery schemes call for three different but overlapping responses. The Lilly enforcement action also makes clear the need for internal audits to follow up with ongoing monitoring and auditing. Internal audit can help determine the reasonableness of a commission rate outside the accepted corporate norm. The 2012 and 2022 Oracle enforcement actions demonstrated that Oracle needed to institute the proper controls to prevent its employees at Oracle India from creating and misusing the parked funds in the distributor’s account. The Company needed to audit and compare the distributor’s margin against the end user price to ensure excess margins were not being built into the pricing structure. Smith & Nephew did not perform sufficient due diligence on these distributors, nor did they document any.

Further, the distributor was domiciled in a location separate and apart, the UK, from the sole location it was designed to deliver products or services into, Greece. This clearly demonstrated that the entities were used for a purpose the company wished to hide from Greek authorities. While it is true that a distributor might sell products in a country different than its domicile, if the products are going into a single country, this should have raised several Red Flags.

Three Key Takeaways:

  1. Use auditing and monitoring.
  2. Distributors will be treated the same as other business ventures.
  3. Robust due diligence must be performed.