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Yesterday’s post (here) went long and deep as to the Tyco enforcement action. This post continues the analysis by highlighting additional notable issues.
The Tyco Enforcement Action Should Be An FCPA Practitioners New Best Friend
During the negotiation phase of resolving an FCPA enforcement action with the DOJ and/or the SEC, a topic that often comes up, and an analysis that an FCPA practitioner frequently performs, is comparing the conduct at issue in the current case to prior enforcement actions. The enforcement agencies typically dismiss such comparative efforts by practitioners by saying that every enforcement action (and negotiation) is unique and that what the agencies did in one enforcement action is not binding in another. On the flip side, and a position I think is imminently reasonable, is that the enforcement agencies ought to be bound by some consistency in enforcement approaches.
If so, the Tyco enforcement action should be the FCPA practitioners new best friend.
For starters, this enforcement action involved a company that settled a wide-ranging fraud action in 2006 – one that involved a material FCPA component (see here for the prior SEC action). In that 2006 action, Tyco was permanently enjoined from, among other things, future FCPA violations. (For more on so-called “obey the law injunctions – see this recent guest post and this prior post).
The government bluntly stated in this week’s enforcement action that certain of the misconduct occurred even after the 2006 injunction. In addition, and per the government, the alleged misconduct in this week’s enforcement action was carried out by several different methods, the conduct occurred over a lengthy time period and involved conduct in approximately 25 countries.
Even so, against this backdrop of an injunction being violated and widespread misconduct in approximately 25 countries, Tyco was offered a non-prosecution agreement by the DOJ and the government did not require an imposition of a corporate monitor.
Should an FCPA practitioner in the future be faced with anything other than a DOJ NPA or should a monitor be insisted upon by the government, the Tyco enforcement action should be your new best friend.
Assessing Tyco’s Culpability
Yes, as noted above, Tyco is now an FCPA “recidivist.” By my count, it has now joined ABB, Baker Hughes, and General Electric in that category.
Yet in reading the Tyco enforcement action, I am hardly surprised nor shocked. The company is a diversified global company operating in more than 60 countries with more than 100,000 employees worldwide. The vast majority of the conduct at issue in the enforcement actions allegedly occurred between 2000 and 2006.
Furthermore, there is no allegation or suggestion that Tyco (the parent company entity) knew of or participated in the improper conduct. For instance, the closest Tyco connection alleged is in the SEC’s complaint concerning conduct in Turkey. However, even there, the SEC only alleges a dual officer structure between the relevant subsidiary and executive officers while at the same time alleging that there was “no indication that any of these individuals [the dual officers] knew of the illegal conduct.” In other respects, the resolution documents allege or suggest that various indirect subsidiaries took steps to conceal the conduct at issue or circumvent Tyco’s internal controls.
I’ve said before and I will say again (based on nearly a decade of FCPA practice experience conducting FCPA internal investigations around the world) that if every large multi-national company with diverse global business units, with tens of thousands of employees scattered across the world, would hire FCPA counsel to do a complete and thorough world-wide review of the company’s operations, given the current enforcement theories, including the standardless books and records and internal controls theories of enforcement, 95% of companies would find problematic conduct (the other 5% of companies either hired counsel not well versed on the current enforcement theories and/or counsel did not look hard enough).
It Takes A While … Just To Negotiate
As noted in this previous post regarding Pfizer, the gray cloud that is FCPA scrutiny can hang over a company for a long time. On this issue, it is interesting to note that Tyco’s most recently quarterly filing stated that the company began its negotiations with the DOJ and SEC in February 2010.
The FCPA As An M&A Issue
The $26 million in combined fines and penalties will not be borne entirely by Tyco and its shareholders. The FCPA frequently finds its way into corporate divestitures and other transactions.
On this note, Tyco’s most recent quarterly filing stated as follows concerning previously spun off business units and now separate companies. “Covidien and TE Connectivity agreed, in connection with the 2007 Separation, to cooperate with the Company in its responses regarding these matters. Any judgment required to be paid or settlement or other cost incurred by the Company in connection with the FCPA investigation matters would be subject to the liability sharing provisions of the Separation and Distribution Agreement, which assigned liabilities primarily related to the former Healthcare and Electronics businesses of the Company to Covidien and TE Connectivity, respectively, and provides that the Company will retain liabilities primarily related to its continuing operations. Any liabilities not primarily related to a particular segment will be shared equally among the Company, Covidien and TE Connectivity.”
In addition, as noted in the NPA, one of Tyco’s business units is poised to be spun-off to Pentair Inc. later this week. The NPA states as follows. “Tyco agrees that if this separation and merger occur during the term of this Agreement, Tyco shall, for any business entities, operations, or units involved in the conduct [at issue] and included in the spin-off and merger, including provisions in any separation agreement binding the relevant and culpable entities to the [compliance] obligations [set forth in the NPA]. Tyco shall no longer be responsible for ensuring compliance by any separated entities, operations or units with the obligations described in the [NPA].”
More Foreign Healthcare Providers as “Foreign Official”
This recent post traced the origins and prominence of the enforcement theory that employees of certain foreign health care systems are “foreign officials” under the FCPA. Add the Tyco enforcement action to the list as the enforcement action included conduct involving Chinese health care providers, Saudi Arabian health care providers, and Polish health care providers.
With the Tyco action on the list, 5 of the 9 (55%) core corporate enforcement actions this year have been based, in whole or in part, on this theory.
More Chinese Design Institutes
The number of FCPA enforcement actions involving Chinese design institutes (an entity category that has given many an FCPA practitioner a headache trying to figure them out) has grown with the Tyco enforcement action. As noted in this previous post concerning Watts Water Technologies, other enforcement actions that have involved, in whole or in part, Chinese design institutes include the following: Rockwell Automation (here), ITT (here), and Avery Dennison (here).