Wednesday, July 29, 2009

Avery Dennison Settles FCPA Matter - Is There a Strict Liability Standard for FCPA Books and Records and Internal Controls Violations?

The FCPA's books and records and internal control provisions, as written, generally state where an issuer "holds 50 per[cent] or less of the voting power with respect to a domestic or foreign firm" the books and records and internal control provisions "require only that the issuer proceed in good faith to use its influence, to the extent reasonable under the issuer's circumstances, to cause such domestic or foreign firm to devise and maintain a system of internal accounting controls..." See 15 USC 78m(b)(6). The section further notes that "[s]uch circumstances include the relative degree of the issuer's ownership of the domestic or foreign firm and the laws and practices governing the business operations of the country in which such firm is located. An issuer which demonstrates good faith efforts to use such influence shall be conclusively presumed to have complied with the requirements of [the books and records and internal control provisions]." Id.

As readers of this blog are perhaps keenly aware - the FCPA, as written, and the FCPA, as enforced, are sometimes two different things.

Such is the case with the SEC's apparent position that issuers are liable (in a way that closely resembles strict liability) for any record keeping or internal control deficiency of any entity (no matter how remotely related to the issuer) in its corporate hierarchy. Although it is sometimes difficult to draw conclusions from negotiated settlement documents, the recent FCPA enforcement action against Avery Dennison Corporation would seem on-point. (See here for the SEC Cease- and-Desist Order, here for the SEC Litigation Release).

"Big picture," and as noted in the Litigation Release, the SEC filed a settled civil complaint against Avery Dennison (a California-based manufacturer of self-adhesive materials, offices products, labels, and graphics imaging media) ("Avery"), charging Avery with violations of the FCPA's books and records and internal control provisions. The SEC also issued an administrative cease-and-desist order ("Order") finding that Avery violated these same provisions.

The alleged violations principally involve Avery (China) Co. Ltd. ("Avery China"), an "indirect subsidiary" of Avery. I wish I knew how to post a flow-chart in this forum, because to connect Avery to Avery China, a flow-chart would indeed be useful. In any event, here is the narrative version as found in para 6 of the Order:

"Avery China is a wholly-owned subsidiary of Avery headquartered in Shanghai, China. It is incorporated under the laws of China and wholly-owned by Avery Dennison Hong Kong BV, which is in turn wholly owned by Avery Dennison Group Danmark ApS, which is in turn wholly owned by Avery Dennison Corporation. The Reflective Division is part of Avery China and is currently part of Avery's Graphics Division. Avery China is overseen by Avery's Asia Pacific Group, an unincorporated group based in Hong Kong within the Avery Dennison Hong Kong BV entity."

As set forth in the Order, the SEC found that: "Avery China's Reflective Division paid or authorized the payments of several kickbacks, sightseeing trips, and gifts to Chinese government officials" with "the purpose and effect of improperly influencing decisions by foreign officials to assist Avery China to obtain or retain business." (See para. 2).

The SEC also found that "after Avery acquired a company in June 2007, employees of the acquired company continued their pre-acquisition practice of making illegal petty cash payments to customs or other officials in several foreign countries." (See para. 3). These findings, which relate to payments to customs officials in Indonesia and Pakistan, and China, are interesting as well from the standpoint that the Order, at various times, refers to these payments as "certain potential [FCPA] violations" (para. 1), "illegal" (para. 3, 16 and 17), "possible improper payments" (para. 15), and "illicit" (para. 17).

The Order is silent as to Avery's participation in, or knowledge of, any of this conduct.

Yet the SEC found that "Avery failed to accurately record these payments and gifts in the company's books and records, and failed to implement or maintain a system of internal accounting controls sufficient to detect and prevent such illegal payments or promises of illegal payments." (See para. 4).

More specifically, the SEC found that:

"Avery's books, records, and accounts did not properly reflect the illicit payments, sightseeing trips and gifts that Avery China made or provided to government officials, and the illicit payments to customs officials in several countries by employees of the acquired subsidiaries. As a result, Avery violated the [the books and records provisions]" (para. 19).

"Avery also failed to devise or maintain sufficient internal controls to provide reasonable assurance that Avery China and the acquired subsidiaries complied with the FCPA and that payments, gifts or sightseeing expenses they provided to foreign officials were accurately reflected on its books and records. As a result Avery violated [the internal control provisions]" (para 20).

Avery agreed to settle the matter by paying approximately $520,000 (disgorgement, prejudgment interest, and a civil penalty) and agreeing to cease and desist from future violations of the FCPA's books and records and internal control provisions.

Notwithstanding 15 USC 78m(b)(6), this sure seems like a strict liability standard for multinational issuers. So long as this is the SEC's position, the FCPA compliance message is clear - multinational issuers will be held responsible for the conduct of all entities within its corporate hierarchy (no matter how remote or indirect) which could potentially implicate the FCPA. For this reason, corporate leaders are wise to fully implement FCPA compliance policies and procedures and audit protocols throughout the entire corporate hierarchy.

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