Compliance-savvy executives worry about the risks that come from third parties — overseas acquisition targets, joint venture partners, distributors and agents. About three quarters of the bosses, according to KPMG’s 2008 Anti-Bribery and Anti-Corruption Survey, think their company’s handling of intermediaries isn’t working. They cite difficulties performing effective due diligence and their inability to adequately audit third parties for compliance.
The executives are right to be concerned. The Foreign Corrupt Practices Act says you can’t hire an agent to pay bribes for you. You can’t use joint venture partners for the dirty work either. You can’t use a brother-in-law or charitable foundation or any other circuitous route. Bribes to foreign officials that originate from your hand are your responsibility, no matter how indirectly you try to pass them on. So when American companies go abroad, it’s up to them to make sure all their business partners — suppliers, subcontractors, professional advisors, agents and joint venture partners — keep the business clean. Companies that don’t try to stop intermediaries from paying bribes have no real defense under the FCPA when problems happen.
But how far must companies go to prevent their middlemen from paying bribes? That’s always the question on everyone’s mind. There’s no bright line here, no blueprint from the DOJ or SEC, no safe harbor. And that’s what worries the executives. They have to do business with and through intermediaries, but they also have to comply with the Foreign Corrupt Practices Act. Doing both sometimes seems impossible.
Take, for example, our reader who sent the comments below. He’s a top compliance professional but he doesn’t have all the answers and neither do we. But we appreciate his honesty and willingness to share his concerns and thoughts. He’s fairly typical, we think, of those who want to comply with the FCPA but aren’t always sure how to do that — a group most of us are in most of the time.
Here’s what he says:
During the ACI FCPA conference held in Washington in November, the topic of documentation of agents came up. This is a familiar topic to anyone who has experience with the FCPA.
One of the points was that companies get hammered because they do a poor job of documenting or having the agent document their activities. I thought to myself “what would the agent document?” If they are out trying to drum up business what is it that they need to report? Do they report the golf trip with potential customers? Do they document the dinner they had or the train ride they took where they discovered a potentially new client and discussed opportunities?
This led me to ask what do business development people document for their activities? Surely they must provide something to justify their salaries. Shouldn’t an agent’s documentation be just as thorough? But then again, because a business development person is on salary and everyone knows they’re sort of doing something, maybe they don’t have to document very well. If they get results, some companies may ask “Does it matter?” If the documentation is poor or nonexistent, and all the focus (risk) is on agents, why wouldn’t a company consider bringing agents in as business development employees? They could structure the compensation (salary and/or bonus) to be identical to what the agent already received. This would have the effect of moving the expense to payroll from agent commission or something similar.
Speaking from experience in conducting FCPA investigations, the scrutiny of payroll expense is night and day different from the scrutiny of commission or agent expense. Furthermore, perceived FCPA due diligence requirements are not the equal for employees as agents. What about the recording of a bonus as payroll expense when all or a portion is used to pay a bribe to a government official? The question then would be what is documented as the purpose of the bonus and did the company know about where the money would ultimately go?
We all know about the high level Jack Stanley-like business development people, but what about the local agents with cousins in the Ministry or uncles in Parliament. These are the guys that bring relationships to the table who might be hired as “employees” and be buried in payroll but continue on agents as if nothing really changed. . . .
Other readers with good or bad experiences dealing with intermediaries are invited to share their thoughts, anecdotes and advice about this difficult topic.