Geronimo's CadillacToday I conclude my 2014 blog posts with a final look at the Avon Foreign Corrupt Practices Act (FCPA) enforcement action. Before getting to the key lessons that a compliance practitioner may draw from this enforcement action, allow me to thank you for letting me be a part of your FCPA and greater compliance and ethics experience. This has been a memorable year in social media for me, both in blogging, publishing and podcasting. (If you have not listened to one of my podcasts please head over to the FCPA Compliance and Ethics Report on the web or on iTunes and check it out.) I have learned quite a bit this year, in writing, podcasting and listening. I hope that you will continue to follow me in 2015 through my blogs, podcasts and via some of the other sites and magazines that I write for. I plan to publish more books, in both print and electronic format, and pen more long form articles that will provide a deeper dive into various topics that I think will be of interest to the FCPA compliance and ethics practitioners out there. But I am getting a bit ahead of myself so back to today’s topic and where we are on the Avon FCPA enforcement action, and the big question of what does it all mean for the compliance practitioner and companies worldwide?

And The Money Kept Rolling Out

Unlike Eva Peron and the Foundacion Eva Peron, Avon had the opposite problem; the money never seemed to stop rolling out for Avon. As the FCPA Professor said in his blog post, entitled “Issues to Consider from the Avon Enforcement Action”, “Avon’s FCPA scrutiny was also very expensive. For years, the whisper in the FCPA community was how expensive – and dragged out – FCPA’s internal investigation and pre-enforcement professional fees and expenses were. Not all companies disclose pre-enforcement action professional fees and expenses, but Avon did and those figures were approximately $500 million”. Even the Department of Justice (DOJ) questioned why the company’s investigative costs were so high.

In an article in Bloomberg News, entitled “Avon Bribe-Probe Clean-Up Neared $500 Million as Sales Cratered, Tom Schoenberg and David Voreacos reported, “In a 2010 meeting, government officials took the unusual step of questioning why Avon’s legal costs were so high at that point, according to two people familiar with the meeting who weren’t authorized to discuss it publicly. Avon said its legal bills had ballooned in part because the company operated in more than 100 countries without consolidated transaction records, according to one of the people.” The article quoted Matthew Axelrod, former senior Justice Department official, who said, “Though unusual, DOJ may call in company counsel to discuss when an outside law firm is going too far afield from what is necessary.” He added the “DOJ doesn’t want a company to have to spend unnecessary millions of dollars on an internal investigation any more than the company itself does”.

If there is one over-riding lesson for all companies to take away from this enforcement action it is that the cost can quickly spiral far out of control and beyond anything you might budget for. While the events at issue took place in 2003-08, the clear import is that it is much cheaper to spend the money to have a compliance program in place now rather than roll the dice and wait. This may mean you need to look at your internal financial accounting systems to determine if they can be monitored adequately and efficiently, yet in a cost-effective manner. While I have not reviewed the internal controls component of this FCPA enforcement action, it is also clear that internal controls need to be in place to detect, in a timely manner, when something goes askance. Of course, if it is in your corporate culture to lie, cheat and steal, it really does not matter what the standard of your internal controls is because the powers that be will find a way around them.

Will No One Rid Me of This Meddlesome Priest?

Henry II and his famous dictum surely seemed to exist at Avon corporate headquarters. If management wants sales accomplished in any way possible then that is the message that is communicated down the line to the troops in the field. Avon had a Code of Conduct that prohibited bribery and corruption, yet the company’s own internal investigation revealed that most company employees were not even aware such a document existed. There was no such thing as FCPA training at the time of the events in question. But more than simply the message of ‘Make Your Numbers; Make Your Numbers; (and then) Make Your Numbers’, Avon had a culture that actively hid criminal acts. For when credible information came to light that Avon China was violating the FCPA, the company went into full cover-up mode, even ordering the destruction of soft and hard copies of the Draft Audit Report. The cover-up was accomplished at the highest levels of the company, with the settlement documents noting the involvement of Avon Executive 1, Avon Executive 2 (believed to be the head of Avon’s Internal Audit function when he left the company), Avon Executive 3, another senior executive in Avon’s Internal Audit function, and two lawyers, Avon Attorney 1, who was identified as “a senior executive in the Office of the General Counsel at AVON” and Avon Attorney 2 who was identified as “an executive in the Office of the General Counsel at AVON”.

High Reward = High Risk

In their Bloomberg News article, Schoenberg and Voreacos reported that Avon was “among the first companies to obtain a license to sell products directly to consumers – the cornerstone of its business model – after Chinese authorities ended a ban on direct sales in 2006.” Further, “By July 2006, Avon had hired more than 114,000 door-to-door salespeople in China. [Then Avon CEO Andrea] Jung said at the time the company viewed the country as a potential $1 billion market. Sales in China surged 28 percent to $67.2 million in the company’s fourth quarter that year.” This means that in less than one year after receiving its license to do business in China, Avon China had one quarter of sales in excess of $60MM. That is quite a lot of Ding Dong, Avon Calling plus following up that doorbell ringing with some serious sales.

Here the lesson is that if there is a new business opportunity that results in an explosion of sales it is probably because of some high risk involved. That may be financial risk, it may be political instability risk, it may be weather-related risk, it may be currency fluctuations risk or it may be some other type of risk. When a business is regulated down from the national to the provincial to the municipality level, it probably means multiples of government interactions for permits and licenses to do business. The compliance function must be integrated into the business operations of a company well enough to be put on notice when such an opportunity presents itself, perform some type of risk assessment and then plan out and implement a strategy to manage those risks going forward. If the first time the compliance function hears about something askance from a FCPA perspective is when it is brought up by internal audit, it is already too late.

The Compliance Committee and Geronimo’s Cadillac

Just as Michael Murphy’s song Geronimo’s Cadillac was intended to show every irony he could ever think of about American culture in two words, the Avon Compliance Committee was about as ironic; although and admitted it is three words. For a corporate Compliance Committee is not simply a vehicle to bring and show off when someone might be around to take pictures. A corporate Compliance Committee has to function and be involved, actively, in an appropriate level of oversight. If a Compliance Committee is informed of credible allegations of a FCPA violation, it simply cannot accept information that it is ‘unsubstantiated’ at a later date. A Compliance Committee must be actively involved in the investigation, it must review the investigation protocol, review information and findings as they become known, direct outside counsel in the investigation and, finally, take charge to remediate the issues involved. It has to have real authority, real power and be taken seriously, not simply have a meaningless title of “Compliance Committee”.

As 2014 draws to a close, I for one am glad that the long Avon FCPA saga has at least come to this stage. For bribe payments totaling over $8MM, Avon has or will pay upwards of $750MM to get through the FCPA Professor’s “three buckets” of FCPA enforcement action costs. This staggering cost should be a clear lesson that now is the time to implement or enhance a compliance program. The number of persons effected by the fallout from this case start with the former head of the company, Andrea Jung, several high ranking executives, the company’s balance sheet and perhaps even some of the lawyers involved in the investigation of this matter. One of the first things that Jung’s replacement did was bring in new counsel to advise the company. After all, someone had to come up with the low-ball opening bid to the DOJ and Securities and Exchange Commission (SEC) of $11MM and then advise Avon to negotiate in public with them using that figure.

On that note, I wish everyone a safe New Year’s Eve and prosperous New Year.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

Bad ConductI am back from my holiday break and am looking forward to many good ideas for blogs in the coming year. However before we get to 2015, I have to finish out some matters from 2014. Today I continue my look at the Avon Foreign Corrupt Practices Act (FCPA) enforcement action, which was announced earlier this month. In today’s post I will look at the bribery scheme and cover-up that Avon employed. Tomorrow I will conclude with some final lessons to be gleaned from the Avon enforcement action for both the compliance practitioner and greater corporate world. Avon Products (China) Co. Ltd. is referred to as ‘Avon China’ and Avon Products, Inc. (the US parent) is referred to as ‘Avon’.

With a sustained plan that one can only say was well thought out, Avon set out to conquer the Chinese market for door-to-door sales. To do so, Avon had to navigate a bureaucratic maze. This maze began with a Test License obtained in 2005 and later a national direct selling license together with approvals from each province and municipality where the company wanted to sell its products. To obtain the required licenses, the company set a bribery scheme which worked at all levels of the company’s China subsidiary, Avon China, and reached back to the home office in the US, Avon Products. Both of these entities were the subject of the FCPA enforcement action concluded earlier this month. The bribery scheme itself paid out over $8MM in bribes before it was concluded.

To facilitate this process Avon China set up a business unit entitled the Corporate Affairs Group and later a more focused sub-group as part of the scheme called the Direct Selling Special Task Force. These two groups led the company’s efforts to bribe its way into the China market. They did so through a variety of means, as set out in the settlement documents. Unless cited otherwise, the quotes below are from the Avon China Criminal Information.

Gifts

Avon was fond of giving very high priced gifts to various Chinese government officials. Inevitably, Avon China employees would falsely describe the gift itself in the company’s books and record. To add to this deception, Avon China would omit from the books and records not only who the gift was provided to but also the purpose of the gift. This part of the bribery scheme allowed the gifts of Louis Vuitton products to be described as a “public relations expense” and “Public Relations Business Entertainment”; while the gift of a Gucci bag was described as “business entertainment”.

Meals and Entertainment

This part of the bribery scheme was a clear favorite of Avon China. The aforementioned Direct Selling Special Task Force was ubiquitous in the meals and entertainment arena where its members simply used the term “relations” to refer to “things of value provided to government officials or goodwill that had been obtained by giving such things, including non-business meals and entertainment.” Specifically noted in this part of the bribery scheme were payments of approximately $8,100 described as “sales-business entertainment” provided to a government official so he would approve a product that did not meet Chinese government standards. Other false excuses provided were describing such payments as “business entertainment” and “employee ‘accommodation’ expenses”.

Non-Business Travel

Avon China doled out a huge amount of bribes through the mechanism of phony travel for alleged business purposes. Avon China would claim they were bringing various Chinese government officials (also Wives, Girlfriends and other family members) to locations for business-related travel but in reality the trips were mostly sight-seeing excursions, gambling junkets, a beach vacation and other entertainment which had nothing to do with business purposes. So a trip alleged to be a “site visit/study visit” to the corporate headquarters in New York City and the company’s research and development (R&D) facility in upstate New York became a $90,000, 18-day travel extravaganza to “Vancouver, Montreal, Ottawa, Toronto, Philadelphia, Seattle, Las Vegas, Los Angeles and Washington DC.” (Oh, and one half-day at the company’s upstate New York R&D facility.) Other favorite venues for Chinese government officials and their families were the gambling mecca of Macau, Hong Kong, Hainan Island, Guangzhou, Shenzhen and Sanya. Needless to say, none of these locations had any Avon corporate offices, manufacturing or R&D facilities.

Cash

Always a favorite of bribers everywhere, Avon did not neglect to lay out large amounts of cash. Avon China used a variety of orchestrations to hide these payments including simply stealing it from a (apparently) huge petty cash fund, directing Avon China employees to charge for non-existent expenses and keep the reimbursements from corporate, lying in the books and records by calling such bribe payments as “management expenses-government relations expenses” and even submitting “a handwritten certificate, purportedly from a Chinese government agency, falsely stating that the official would give the funds to the government bureau.”

Payment Through Third Parties

Using an entity identified as “Consulting Company A”, Avon China paid a large number of bribes throughout the period in question. Initially it should be noted that this entity raised numerous red flags that were never investigated or cleared. These began with the fact that it was a Chinese government official who recommended the retention of Consulting Company A to perform ‘lobbying’ services for Avon China. Thereafter the company performed no background investigation into the ownership structure of the company, did not include any compliance terms and conditions in the contract, did not even communicate to this third party of Avon’s Code of Conduct prohibition against bribery of government officials. Beyond these issues, in large part Consulting Company A never performed any legitimate services for Avon China. What Consulting Company A did provide to Avon China was a way to funnel bribe payments to Chinese government officials.

Corporate Connivance in Scheme (AKA The Cover-Up)

While all of the above was bad, one thing which catapulted the Avon FCPA bribery scandal into the realm of seriously bad was the company’s discovery of the bribery scheme and resulting cover-up. According to the Criminal Information for Avon Products, in 2005 a senior auditor in Avon’s internal audit group, “reported to Avon’s Compliance Committee, which was comprised of several senior Avon executives, that Avon China executives and employees were not maintaining proper records of entertainment for government officials” and that an Avon China executive had explained the practice “was intentional because information regarding that entertainment was ‘quite sensitive.’” This led to a Draft Audit Report, reviewed at the highest levels of Avon China and Avon in the US, which concluded that Avon China’s Corporate Affairs Group’s expenses included: “(1) high value gifts and meals that were offered to Chinese government officials; (2) the majority of expenses relating to gifts, meals, sponsorship and travel of substantial monetary value was to maintain relationships with government officials; (3) a third party was paid large amounts of money to interact with Chinese government officials but was not contractually required to follow the FCPA, was not monitored by Avon China, and was paid for vague and unknown services; and (4) the payments, and the lack of accurate, detailed records may violate the FCPA or other anti-corruption laws.”

So what was the company’s response to this information? The internal auditors who prepared the report were required to remove the above language and whitewash the report. Evidence of reviewed misconduct was reduced to two hand-written pages, which were then taken out of China and hand-carried to Avon’s corporate headquarters. All copies of the Draft Audit Report were ordered to be retrieved and destroyed. Finally, as noted in the Criminal Information of Avon China, in January 2007, an Avon executive reported to the Avon Compliance Committee “that the matter reported in 2005 regarding the potential FCPA violations by AVON CHINA executives and employees had been closed as “unsubstantiated” which terminated Avon’s investigation into AVON CHINA’s corrupt conduct.”

Tomorrow we take a look at some of the key lessons to be learned from Avon FCPA enforcement action.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014The v

AvonIt is finally done. The long awaited Avon Foreign Corrupt Practices Act (FCPA) enforcement action is on the books. I would say what a long, strange trip it has been but that does not really seem to capture everything that went on in this case. Before we only knew such things as a whistleblower contacting the Chief Executive Officer (CEO) of the company with allegations of bribery in the company’s China business unit, to the Head of Internal Audit being caught up directly in the scandal, put on administrative leave and then terminated; to a professional fee burn rate on the case which would rival the Gross National Product (GNP) of many countries; to Grand Jury subpoenas being issued (or threatened to be issued) to corporate executives to secure their testimony in criminal proceedings; to publicly negotiating with the Department of Justice (DOJ) and Securities and Exchange Commission (SEC); we all thought this FCPA matter had it all. But it turns out just how little we knew about the company’s conduct and just how bad it was which led to this settlement because to say it was bad would demean and belittle the word bad. So over the next few blog posts, I will be exploring Avon, its conduct and the FCPA enforcement action.

For the Record

The amount of the total fines and penalties was $135 million. As noted by the FCPA Professor, “the settlement is the third-largest ever against a U.S. company.” The enforcement action included several resolution vehicles, including a Criminal Information against Avon China resolved via a Plea Agreement; a Criminal Information against Avon Products resolved via a Deferred Prosecution Agreement (DPA) with an aggregate fine amount of $67.6MM. There was a separate SEC resolution through a Civil Complaint against Avon Products, which it agreed to resolve without admitting or denying the allegations through payment. The amount of the SEC settlement was $67.4MM. While the company’s internal investigation began in China, it quickly expanded so that it went far beyond China, including Japan, Argentina, Brazil, India and Mexico.

How Did We Get Here?

It all began back in May 2008, when an employee from Avon’s China business unit sent a letter to the head of the company alleging the China entity had engaged in bribery and corruption. In October 2008, Avon reported, in a Statement of Voluntary Disclosure, that it was investigating an internally reported allegation by an undisclosed whistleblower that corrupt payments had been made in its China operations. These allegations claimed that certain travel, entertainment and other expenses might have been improperly incurred. Although the details of the Avon case have not been disclosed, direct selling was not allowed in China under a law passed in 1998. The National Review reported that Avon was able to secure permission in late 2005 to begin direct selling on a limited basis. Later the Chinese government issued direct-selling regulations and granted Avon a broader license in February 2006 to make such sales.

In its 2009 Annual Report, Avon noted that the internal investigation and compliance reviews, which started in China, had now expanded to its operations in at least 12 other countries and was focusing on reviewing “certain expenses and books and records processes, including, but not limited to, travel, entertainment, gifts, and payments to third-party agents and others, in connection with our business dealings, directly or indirectly, with foreign governments and their employees”. The FCPA Professor, citing the Wall Street Journal (WSJ), reported that Avon suspended four employees, including the President, Chief Financial Officer (CFO) and top government affairs executive of Avon’s China unit as well as a senior executive in New York who was Avon’s head of Internal Audit.

One of the significant pieces of information to come out of the Avon matter is the related costs. As reported in the 2009 Annual Report the following costs were incurred and were anticipated to be incurred in 2010:

Investigate Cost, Revenue or Earnings Loss
Investigative Cost (2009) $35 Million
Investigative Cost (anticipated-2010) $95 Million
Drop in Q1 Earnings $74.8 Million
Loss in Revenue from China Operations $10 Million
Total $214.8 Million

Marketwatch also reported that after these investigations were made public Avon’s stock prices fell by 8%. Lastly, in addition to the above direct and anticipated costs and drop in stock value, the ratings agency Fitch speculated about the possibility of a drop in Avon’s credit ratings. But as bad as these numbers appear they only got worse for Avon as by 2012 its spend on professional fees was estimated to be over $247MM. As of this date, the total professional fees are closer to $300MM.

Grand Jury Investigation and Terminations

The WSJ reported in February 2012 that the DOJ had gone to a grand jury with evidence of FCPA violations against US executives at Avon. Joe Palazzolo and Emily Glazer reported that several company employees were terminated for their role in the scandal. They wrote, “The company said it fired Vice Chairman Charles Cramb on Jan. 29 [2012] in connection with the overseas corruption probe and another investigation into allegedly improper disclosure of financial information to analysts. Mr. Cramb couldn’t be reached for comment. In May [2011], Avon said it fired Ian Rossetter, its former head of global internal audit and security and previously Avon’s head of finance in Asia. Mr. Rossetter didn’t respond to requests for comment and his attorney declined to comment. Bennett Gallina, a senior vice president responsible for the company’s operations outside the U.S. and Latin America, left Avon in February 2011, two days after being put on leave in connection with the internal corruption investigation, the company said at the time.”

Negotiating in Public

I do not know who was advising Avon but the decision to try and force the government’s hand by making public its negotiating position was one of the most bone-headed moves I have seen a similarly situated company make. Avon initially announced that it had opened negotiations with the US government over the terms of a resolution in August 2012. In mid 2013, the FCPA Blog reported that Avon low-balled the SEC with an opening offer of $12MM. Later, in 2013, the company reported in an SEC filing that the “Securities and Exchange Commission offered an FCPA settlement last month with monetary penalties that were ‘significantly greater’ than the $12 million the company had offered.” But not to take such government tactics sitting down, Avon publicly announced in the filing that “Monetary penalties at the level proposed by the SEC staff are not warranted.” That certainly was great information to put out to the public enforcing that you are taking a hardball approach with the SEC and telling them their fines and penalties are not deserved for a company that has gone through all Avon has during this FCPA journey.

As I said, this matter was a long strange journey but as strange as things were that we knew about before last week, they became much stranger. Tomorrow we take a look at the facts that came out through the settlement documents to see the nefariousness of Avon’s conduct.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2014

 

Ed. Note-in light of Avon’s recent disclosures regarding its negotiations to resolve its outstanding FCPA issues, I thought about what a shareholder might say to the Board. Today’s post are those musings…

Memo: The Board of Directors of Avon      

From: An Interested Shareholder

Re: Negotiating with the SEC and DOJ in Public    

Last June I wanted to thank you for communicating so fully with myself and the rest of our shareholding group about your negotiations with the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) over your ongoing Foreign Corrupt Practices Act (FCPA) investigation and what, about now, appears to be leaning towards an enforcement action. I was pleased when it was reported in the FCPA Blog that you low-balled the SEC with your opening offer of $12MM, particularly since our legal and related expenses for the investigation to-date are reported to be in the range of $300MM. You really showed those regulators that you mean to play hard ball and not take anything from them. I had thought that your public posturing would force the SEC and DOJ to come down to your way of thinking.

However, I was a tad dismayed last week when it was reported in another post in the FCPA Blog that you said in an SEC filing this past Thursday that the “Securities and Exchange Commission offered an FCPA settlement last month with monetary penalties that were ‘significantly greater’ than the $12 million the company had offered.” Nevertheless, there was no information as to what the SEC may have offered in a counter proposal to your low ball offer? Do you think it is possible that if you started with such a low ball offer and tried to embarrass the government by making your low ball offer public, this might have caused the regulators to counter-propose a correspondingly high demand in negotiations? Well, I know you have some very good lawyers so I am sure that you considered all of this but did it work out like you planned? I and other inquiring shareholders would like to know.

I understand that this investigation has gone on since 2008 and the company is tired of the legal fees piling up and up. As a shareholder I am certainly tired of this as well, particularly in light of the reported cost of the investigation and related costs in the range of $300MM. Of course I was equally disappointed when the FCPA Blog also noted that “The Wall Street Journal reported in February 2012 that the DOJ had gone to a grand jury with evidence of FCPA violations against U.S. executives at Avon.” As I understand FCPA enforcement, it is the DOJ which enforces the criminal aspects of the FCPA while the SEC enforces things on the civil side. However, I was heartened when you publicly announced in the filing that “Monetary penalties at the level proposed by the SEC staff are not warranted.” That certainly was great information to put out to the public enforcing that you are taking a hardball approach with the SEC and telling them their fines and penalties are not deserved for a company which has gone through all Avon has during this FCPA journey.

But, I have to admit, I have wondered what you hoped to achieve by publicly chastising the SEC and perhaps the DOJ as well. I am sure that you are aware, as was reported in Barrons’ Stocks to Watch blog that “Avon’s (AVP) shares have plunged 20% since the multi-level marketer announced that the government was seeking a much larger-than-expected fine for violating the Foreign Corrupt Practices Act.” If the stock has many more of these 20% drops, how much shareholder value will be left?

The FCPA Blog reported that in the filing last week, you reported, “The DOJ may also seek higher penalties, Avon said, in which case its earnings, cash flow, and ongoing business could be ‘materially adversely impacted.’” Is this adverse impact above and beyond the $300MM in costs, depressed stock price and institutional reputation deflation? Or are we looking at more bad news?

I was somewhat buoyed when the Stocks to Watch piece reported that Morgan Stanley’s Dara Mohsenian, and team, said “For short-term oriented clients, we believe FCPA concerns are over-blown, as our estimated ~$750M market cap impact stemming from FCPA concerns, implies Avon would receive the second largest FCPA fine in history. We view this as unlikely given Avon is a direct seller, and not directly involved in government contract bids, which was the case at each of the top ten historical FCPA fines. In addition, AVP FCPA risk is more pronounced in China around the granting of direct selling licensees; however, Avon’s low China profitability limits the risk of China profit disgorgement.” I guess Mohsenian may not understand that bribing Chinese government officials is bad even if Avon is not a ‘direct seller’ but I will leave that to them. It also gave me pause to wonder if there were other countries where Avon engaged in conduct which violated the FCPA. If so, you certainly have not advised us shareholders of that fact. It might have been relevant to my decision to buy, sell or hold Avon stock, don’t you think?

Since it is not clear from your filings, how did you come up with this $750MM figure? Does that include fines and penalties from both the SEC and DOJ? Do you really think that Avon will set the US company standard for FCPA fines and penalties? If so, the company’s conduct must be much worse than you have disclosed to us shareholders over the past 5 years the investigation has been ongoing. I had thought the US Sentencing Guidelines suggested that companies which engaged in substantive and ongoing remediation would receive credit for those actions. Surely you have created the ‘best in class’ compliance program with the $300MM you have spent?

But don’t worry; if one thing has been made clear since 2008, you sure know what you are doing. Keep up the good work and you don’t have to worry about me joining any shareholder lawsuit against the company for engaging in bribery and corruption…

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2013

It is finally here, Opening Day for the Houston Astros. Although Major League Baseball (MLB) opened its 2012 season last week in Japan, I will have to go with my hometown team’s home opener as my official day for the new season. So will the Astros improve on their 106-loss season from 2011? We can certainly hope so. On a somewhat melancholy note, it is the Astros final season in the National League (NL) as new owner Jim Crane threw away our 50 year tradition by agreeing to move the Astros to the American League (AL) West next year. Thanks Jim. But hey, we can still lose games to Albert Pujols, when we are up in the 9th by two runs as he left the St. Louis Cardinals for the mega-zillions of Anaheim’s Angels, when he hits yet another 3 run homer with a 0-2 count.

This week in the compliance world we saw a different type of opening or perhaps the beginning of the end, depending on your perspective, involving Avon. The news this week was not specifically focused on its ongoing Foreign Corrupt Practices Act (FCPA) travails but the takeover bid by a much smaller rival, Coty, Inc. As reported in the April 3, edition of both the Wall Street Journal (WSJ), “Scarred Avon is Takeover Target”, and the New York Times (NYT), “Avon Rebuffs Coty, but Its Weakness Shows”, the German-based cosmetics concern, which is “less than half Avon’s size”, publicly announced a $10 billion takeover bid for Avon.

FCPA Costs for Avon

The FCPA travails of Avon have been well reported. In October 2008, Avon publicly announced it was conducting an investigation for possible FCPA violations related to its China operations. This investigation expanded into a world-wide internal investigation, which at this time is still ongoing with no indication of when an enforcement action, if any, will be concluded. Recently the FCPA Professor, in a post entitled “Business Effects”, reported that the “professional fees and expenses incurred by Avon in connection with its internal FCPA review have approached $250 million – and there hasn’t even yet been an enforcement action.  Over the past three years and doing the math, Avon has spent approximately $225,000 per day on its FCPA inquiry.” As reported by the FCPA Blog, in a post entitled “Suit Alleges Avon Execs Knew About China Bribes”, a recent article by Chris Matthews of the WSJ “reported yesterday that an amended shareholder lawsuit accuses Avon Products of paying a big severance to a former head of internal audit in 2006 to buy his silence about bribes in China.”

In addition to this civil shareholder lawsuit, the FCPA Blog noted that “Joe Palazzolo and Emily Glazer at the Wall Street Journal said in February that the DOJ [Department of Justice] had gone to a grand jury with evidence of FCPA violations against U.S. executives at Avon Products. The WSJ story, based on at least three unnamed sources, said the focus of the grand jury was a 2005 internal audit report by the company that concluded Avon employees in China may have been bribing officials.”

In addition to its FCPA issues, Avon has suffered financial setbacks as well since the original FCPA disclosure. The NYT reported that Avon’s “net income has declined every year since 2008.” It has lost significant stock value during this FCPA investigation and has had its credit downgraded. The WSJ article reported that “Prior to Coty’s offer, Avon’s stock had lost about 30% of its value over the past year, and Standard & Poor’s Corp. cut its credit rating on Avon last month to triple-B, two steps above junk, warning it could fall further as the search for a CEO keeps longer-term planning on hold.” This final reference is to Avon’s move to replace it chief executive Andrea Jung, as reported in the NYT article, “has been criticized by analysts recently.”

Successor Liability Issues under the FCPA

As noted by reporter Sam Rubenfeld, in a WSJ article entitled “Buying Avon Could Bring Coty A Hefty Bribery Risk”, the purchasing entity Coty “could be buying a massive foreign bribery liability if a deal to purchase Avon Products Inc. were to close, experts said.” He wrote that “Successor liability in the FCPA context, known by the shorthand of “buying an FCPA violation,” was the subject of six enforcement actions in 2011.” He went on to quote Rita Glavin, a partner at Seward & Kissel LLP who formerly served as head of the Justice Department’s Criminal Division, who said “You buy a company, you buy their problems.”

So what is Coty up to here? I think that they may have come upon an interesting new wrinkle for companies in a FCPA investigation. Not only do companies face what Avon has gone through in terms of the business effects of a huge cost for an internal investigation, drop in stock value and drop in credit rating but now such an all-encompassing investigation could put a company in play for a takeover – hostile or friendly. While the doctrine of successor liability is alive and well, there are potential protections for any purchaser. First and foremost is the fact that it is Avon which has borne these tremendous costs for the investigation. I have no doubt that as a part of the investigation Avon has identified compliance policies and procedures which should be (ahem) enhanced to prevent any violations of the FCPA going forward. Once again it is Avon which is doing this work and not any acquiring company. In addition to these costs which the acquiring company does not have to incur, the value of Avon is well down, although just how much due to the FCPA investigation may not be quantified at this point, it does not change the fact that its value is significantly lower. Hence any purchase price will be at a reduced amount perhaps even a greatly reduced amount.

Coty Options on Successor Liability Issue

As to the issue of successor liability, I think that Coty can look to different DOJ pronouncements for some comfort. The first is Opinion Release 08-02 (the “Halliburton Opinion Release”) in which the DOJ blessed a go-forward plan proposed by Halliburton, to accomplish due diligence in a post-acquisition mode. The second is found in the Johnson and Johnson (J&J) Deferred Prosecution Agreement (DPA), in Attachment D, “Enhanced Compliance Obligations.” With regard to the acquisition context, it agreed to:

7. J&J will ensure that new business entities are only acquired after thorough FCPA and anticorruption due diligence by legal, accounting, and compliance personnel. Where such anticorruption due diligence is not practicable prior to acquisition of a new business for reasons beyond J&J’s control, or due to any applicable law, rule, or regulation, J&J will conduct FCPA and anticorruption due diligence subsequent to the acquisition and report to the Department any corrupt payments, falsified books and records, or inadequate internal controls as required by … the Deferred Prosecution Agreement.

8. J&J will ensure that J&J’s policies and procedures regarding the anticorruption laws and regulations apply as quickly as is practicable, but in any event no less than one year post-closing, to newly-acquired businesses, and will promptly: For those operating companies that are determined not to pose corruption risk, J&J will conduct periodic FCPA Audits, or will incorporate FCPA components into financial audits.

a. Train directors, officers, employees, agents, consultants, representatives, distributors, joint venture partners, and relevant employees thereof, who present corruption risk to J&J, on the anticorruption laws and regulations and J&J’s related policies and procedures; and

b. Conduct an FCPA-specific audit of all newly-acquired businesses within 18 months of acquisition.

Mike Volkov, writing in his blog, Corruption, Crime and Compliance, in a post entitled “Buying an FCPA Violation: Successor Liability is Alive and Well”, provided the following advice for companies to steer clear of successor liability under the FCPA in an acquisition context:

1.  A pre-closing risk assessment needs to be updated for post-closing risks.

2.  Compliance triage teams need to be assembled and tasks prioritized.  If more resources are needed, this needs to be arranged at or near the time of closing.  Compliance triage teams must have authority and resources to bring an acquired company into the fold.

3.  Compliance triage teams need to work post-acquisition to ensure proper controls and compliance programs are adequately implemented in those high-risk areas and businesses.

4.  Compliance training of new employees and agents has to be a high priority.  It is surprising how many companies fail to even conduct basic training, updating of codes of conduct and basic steps to integrate new employees and agents.

From Opinion Release 08-02, the J&J DPA and Mike Volkov’s thoughts, I believe that Coty could well put together a plan to deal with Avon’s FCPA issues and the DOJ based upon precedent, a strong commitment towards compliance going forward and Coty’s extraordinary cooperation with the DOJ to make all of this work. Although the NYT and WSJ both reported that Avon’s management rejected the Coty offer, if Coty can convince enough Avon shareholders to accept the offer the Avon shareholders might be inclined to consider such an offer at this point.

But it’s Opening Day and my bride and I are off to Minute Maid Park to watch the hometown heroes play the Colorado Rockies tonight. Is the start of this 2012 a harbinger of good things to come for the Astros? Only time will tell. As for Avon, its FCPA travails may have helped to put it in play and Coty may have figured out how to use one company’s FCPA issues as a springboard to a major acquisition. Maybe the new normal for companies in large FCPA investigations/enforcement actions is that they find themselves as take-over candidates. Only time will tell.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012