Size Matters, But To What Extent?
Business organizations large and small are subject to the anti-bribery provisions of the Foreign Corrupt Practices Act.
Although the books and records and internal controls provisions only apply to issuers, issuers are not always large companies. These provisions make no explicit distinctions regarding the size of an issuer, but in the FCPA Guidance the DOJ and SEC sensibly acknowledge that a factor the enforcement agencies consider when evaluating an organization’s compliance program is the size of the organization. Specifically the Guidance states: ” small- and medium-size enterprises likely will have different compliance programs from large multi-national corporations, a fact DOJ and SEC take into account when evaluating companies’ compliance programs.”
Similarly, the DOJ’s November 2017 FCPA Corporate Enforcement Policy states: “implementation of an effective compliance and ethics program, the criteria for which will be periodically updated and which may vary based on the size and resources of the organization …”.
Despite this sensible FCPA enforcement agency guidance, does size actually matter?
Just Following Instructions #precisionmatters
As DOJ compliance counsel, Hui Chen called out the “the lack of precision and intellectual rigor” in much compliance writing and commentary and was applauded on these pages for doing so.
Therefore, Chen encouraged others on social media to use #precisionmatters to “hold each other accountable and tag where more precisions are needed!”
Just following instructions here – #precisionmatters for Chen’s latest article for use of such terms as “centralized visibility,” “organizational culture,” “respect,” “engagement” etc.
The FCPA “Limits The Universe” Of Business Opportunities
It is always interesting when the Foreign Corrupt Practice Act is mentioned during investor conference calls. The comments tend to be off-the-cuff (not scripted as much FCPA content is) which make them great.
For instance, during a recent investor call an executive from CF Industries Holdings (an Illinois based manufacturer and distributor of agricultural fertilizers with a largely North American footprint) was asked by an investor:
“What are the next stages of capital deployment, especially as the market is now relatively more stable? Do you still feel industry consolidation is necessary? And just generally, what do you see as your own potential role in the process? And should we limit our thinking to North America?”
The company’s President, CEO and Director responded:
Friday Roundup
Scrutiny alerts and updates, just plain silly, #precisionmatters, and for the reading stack. It’s all here in the Friday roundup.
Scrutiny Alerts and Updates
Societe Generale
As highlighted in this 2014 post, Societe Generale, among other companies, has been under FCPA scrutiny regarding its dealings with Libya’s government-run investment fund. The French financial services company recently disclosed:
FCPA Flash – A Conversation With Gregory Paw And Sandra Orihuela Regarding The Broader Ramifications Of The Odebrecht Enforcement Action
The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.
This FCPA Flash episode is a conversation with Gregory Paw (Pepper Hamilton) and Sandra Orihuela (Orihuela Abogados – Lima, Peru and Miami). As highlighted in this prior post, in December 2016 the DOJ and SEC brought (in addition to other law enforcement authorities around the globe) an enforcement action against Brazilian companies Odebrecht/Braskem. In the podcast Paw and Orihuela discuss the broader ramifications of the Odebrecht enforcement in South America and Latin America and compliance trends in these regions in the aftermath of the notable enforcement action.