In The Herbalife Enforcement Action, The Government Failed To Present The “Complete Picture” Regarding The Company’s Internal Audit Function
When the government charges individuals with Foreign Corrupt Practices Act violations and then subsequently charges a business organization with FCPA violations based on the same core allegations one might expect the allegations to be consistent.
However, as highlighted below in connection with the DOJ/SEC’s individual enforcement action against former Herbalife China executives (see here for the prior post) and its subsequent enforcement against Herbalife (see here and here for prior posts), in the later enforcement action the government failed to present the “complete picture” regarding the company’s internal audit function (a key portion of the internal controls allegations against the company).
Issues To Consider From The Herbalife Enforcement Action
This prior post went in-depth into the recent $123 million Foreign Corrupt Practices Act enforcement action against Herbalife and this post highlights additional issues to consider.
Timeline
As highlighted in this post, Herbalife disclosed its FCPA scrutiny in early 2017. Thus, from start to finish, its scrutiny lasted more than 3.5 years. I’ve said it many times, and will continue saying it until the cows come home, if the DOJ/SEC wants their FCPA enforcement programs to be viewed as credible and effective they must resolve instances of FCPA scrutiny much quicker.
This is particularly true in the Herbalife matter given that the conduct focused on a single country as well as the following language from the enforcement agencies.
Further To The SEC’s Inconsistent Approach To Enforcing The FCPA’s Books And Records And Internal Controls Provisions
Other than this website (see here, here, here, here, here, here and here), there seems to be little focus on the SEC’s inconsistent approach to enforcing the FCPA’s books and records and internal controls provisions.
Which is too bad because consistency is a basic rule of law principle. In other words, the same legal violation ought to be sanctioned in the same way. When the same legal violation is sanctioned in materially different ways, trust and confidence in law enforcement is diminished.
As highlighted in the numerous prior posts as well as the latest example described below, there sure does seem to be a lack of consistency between how the SEC resolves Foreign Corrupt Practices Act books and records and internal controls violations.
Potpourri
Deficient FCPA Reporting
In this New York Times article, journalists once again demonstrate their deficient FCPA knowledge. In reference to Microsoft’s possible purchase of TikTok and the potential of the U.S. Treasury receiving a portion of the sale, the article states: “In essence, the president is promising to orchestrate the kind of pay-to-play bounty that the United States prohibits companies from making to governments of other countries under the Foreign Corrupt Practices Act.”
However, the FCPA does not prohibit business organizations from providing things of value to foreign governments – just foreign officials. As stated in the U.S. government FCPA Guidance “”The FCPA prohibits payments to foreign officials, not to foreign governments.”
The FCPA Has Always Been A Law Much Broader Than Its Name Suggests
The Foreign Corrupt Practices Act has always been a law much broader than its name suggests. Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.
However, the books and records and internal controls provisions are among the most generic legal provisions one can possible find. The provisions generally require issuers to: (i) maintain books and records which, in reasonable detail, accurately and fairly reflect issuer transactions and disposition of assets (the books and records provisions); and (ii) devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are properly authorized, recorded, and accounted for (the internal controls provisions).
Because of these provisions, most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery.