Show Notes for Episode 25, week ending October 7, 2016-the Krakow Edition

  1. Breakdown of GSK Foreign Corrupt Practices Act settlement with SEC and declination from the DOJ, click here for SEC Order and here for commentary in the in the FCPA Compliance and Ethics Blog;
  2. The SCCE 2016 Compliance Effectiveness Survey, click here for the survey;
  3. My interview with Professor Sam Buell on the FCPA Compliance Report,
  4. Wells Fargo clawbacks from CEO John Stumpf and Carrie Toldstet, as reported in the Financial Times and in the New York Times and here for my commentary;
  5. The International Gaming Tech (IGT) SEC penalty, which is the first enforcement action for relational only, as reported in the FCPA Blog; and
  6. Jay previews his Weekend Report.

oscar-meyer-wienerLast week a true American original died when Richard Trentlage passed away. If you do not know his name you certainly know signature contribution to American culture, the Oscar Meyer Weiner Song. Rather amazingly Trentlage wrote the jingle in response to a contest sponsored by the Oscar Meyer Wiener Company for a new theme in 1962 and did so in an hour. According to his  obituary in the New York Times the song “debuted in 1962 a3 and became the company’s signature advertising tune in 21 English speaking countries until 2010.” Moreover the “song became a part of the fabric of American culture, with airings on the children’s television show ‘Captain Kangaroo’, on the cartoon ‘The Jetsons’ and on an episode of the ‘The Simpsons’ in 1990. The song and its writer were true American originals.

Another original was in the news last week when the UK pharmaceutical giant GlaxoSmithKline PLC resolved its outstanding Foreign Corrupt Practices Act (FCPA) issues with its settlement with the Securities and Exchange Commission (SEC) by agreeing to pay $20 million civil penalty when China-based subsidiaries spent millions of dollars on pay-to-prescribe schemes for several years to pump up sales. Even more amazingly the company received a declination from the Department of Justice. I say even more amazingly because at the time of the conduct at issue, GSK was under a Corporate Integrity Agreement, the pharma equivalent of a Deferred Prosecution Agreement. The CIA required GSK not only to obey laws (and to pay bribes) but have a functioning compliance program in place, which the company obviously did not give one whit about, at least in China.

For those who have long forgotten our friends over at GSK (hum the Oscar Meyer Wiener theme now) they were four or five major corruption scandals ago, way back in the summer of 2013 when news broke that the Chinese  government had accused the company of five years of institutional bribery and corruption. Senior GSK business unit leaders were arrested and GSK claimed to be shocked, just shocked that anyone would accuse it of bribery and corruption, especially after just paying the US government $3bn for false labeling products. Yet the corruption continued even after being reported by an anonymous whistleblower (cleverly monikered GSK Whistleblower) the company was not able to turn up any indicia of bribery and corruption in its China business in six months of looking.

As lightly as GSK apparently took these allegations, the Chinese authorities took them very seriously and in a few months of investigation turned up the massive and pervasive bribery scheme. They put numerous senior GSK China employees under house arrest and even managed to illicit a confession or two on public television.

All of this led to a secret trial in August 2014 where the company was fined approximately $490MM and the four top executives of GSK China were convicted. The non-Chinese citizens were deported. There was even a sex tape aspect to the matter but it was somewhat tangential to the case and (apparently) not a part of the SEC enforcement action. Most interestingly the SEC Order did not mention the fine paid in China and it is not part of the Order, although surely the SEC took it into account. At least I hope so.

Yet the SEC enforcement was not without some interest. The Order noted, “Between at least 2010 and June 2013, employees and agents of GSK’s China-based subsidiary and a China-based joint-venture engaged in various transactions and schemes to provide things of value to foreign officials, including healthcare professionals (“HCPs”), in order to improperly influence them and increase sales of GSK products in China.  This misconduct was facilitated in part by the use of collusive third parties that ostensibly provided legitimate travel and other services. The funds used for the improper inducements were frequently obtained under the guise of, and falsely recorded in GSK’s books and records as, legitimate travel and entertainment expense, marketing expense, speaker payments, medical associations payments, and promotion expense. Throughout this period GSK failed to devise and maintain a sufficient system of internal accounting controls and lacked an effective anticorruption compliance program. The deficiencies in GSK’s internal accounting controls and compliance program also led to instances of similar improper conduct in connection with sales in other countries in which GSK operates.”

Yet we learned more in the SEC Order about GSK China’s bribery scheme. One emphasis was the China business unit wide pervasiveness of the corruption. The Order noted that bribes were actually written into sale plans for the company, stating, “a 2013 work plan submitted by a sales representative to a regional sales manager described the intent to pay, among other things, an HCP RMB 20/box of prescribed product every month, and deliver appropriate gifts on each holiday in exchange for a guarantee of more than 40 boxes of prescribed product every month.”

There was also some attempt to investigate the conduct of the China business unit but they all failed uncover the systemic bribery of GSK China. One set of investigations noted, “During this period, local internal audit and compliance reviews identified controls deficiencies and evidence of some mechanisms that were used to fund the improper payments, but they were treated as isolated instances rather than signs of a larger problem.”

Even more damning was the following, “As early as 2010, internal audit identified problems related to sales and promotions staff practices in China. Among other findings it noted: [d]uring 2010, several new policies governing commercial activities such as grants and donations and sponsorships were introduced. The significant changes, combined with the high staff turnover, contribute to an environment where many commercial and medical staff do not understand how to apply policies or the rationale behind them. This was evidenced by approval of non-compliant activities, a lack of clarity on which policy to apply for activities such as grants, and weaknesses in documentation to support the legitimate intent of activities such as advisory.”

One wonders whether the internal audit staff was simply not competent to properly identify the bribery and corruption or if they simply knew not to look with any more depth or seeing their findings as “signs of a larger problem.” However given the finality of these resolutions with the SEC and DOJ, it is doubtful there will be any further investigations going forward as to GSK’s China issues.

Nevertheless the matter continues to present multiple lessons to be learned for the compliance practitioner. Assuming one wants to actually find nefarious conduct, stop it and then remediate it, GSK in China presents several lessons on what to look for and how to move forward. The SEC Order also re-emphasizes the bribery schemes used by the company. What the SEC Order and DOJ declination may ultimately symbolize is the end of a long and sordid affair for the company.

One might also consider the damage the scandal did to the parent company and the legacy of the soon-to-retire chief executive Sir Andrew Witty. While the scandal did not reach either the corporate parent in England and certainly not Sir Andrew, the $490MM fine in China and the $20MM fine in the US, pale beside the true cost to GSK, which was its sales targets in China. GSK had targeted the over $30 bn Chinese medical product and services market to be 20% of GSK total revenue by 2020. That strategy is now in tatters as the Chinese prosecution made GSK a non-entity in the Chinese health care market. Any transaction involving GSK involving a Chinese health care provider, invites government scrutiny. It is far easier for health care providers to purchase pharmaceuticals, health care products and medical services from companies which have not gone through such a prosecution.

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

© Thomas R. Fox, 2016



Cartoon caption bubbleI hope everyone had a great 4th of July. One of the small pleasures I take each week is reading the New Yorker’s Cartoon Caption contest. I have entered most weeks for the past 10 years or so when the spirit moved me with a caption to submit. I won once, in the issue dated February 11 & 18, 2008. So you might imagine my surprise and thrill when I received a call from the section Editor, Bob Mankoff, last week to tell me I am a finalist yet again, for the July 25, 2016 issue. My request is that you go over to the contest and, if the spirit so moves, you will vote for me. You do not have to be a subscriber to vote but you do have to vote by Sunday, July 10th. You can go to the Cartoon Caption contest by clicking this link.

As you see from my entry, I was inspired by the long drought of Cleveland in winning a major sports championship, remedied by the Cavaliers in dramatic fashion in June. Having lived in or near Houston most of my life, I certainly understand futility of sports franchises. Yet I was reminded of my entry, the overcoming futility in a dearth of championship banners and their intersection with compliance in a The Atlantic magazine article by Jerry Useem, entitled “What Was Volkswagen Thinking?” Useem reviews the design and implementation of the VW defeat device that led to its emissions-testing scandal. He pointed to the sociologist Diane Vaughan, who coined the term normalization of deviance to explain the “cultural drift in which circumstances classified as ‘not Okay’ are slowly reclassified as ‘okay’.”

It is this type of corporate culture that leads to not only total disaster, such as currently being experienced by VW, but also allows companies to slip into conduct that violates the Foreign Corrupt Practices Act (FCPA). One step is that management does not model the behavior that it alleges to aspire to for its employees. Yet Vaughn goes further to describe the process as a “script” which develops a definition of the situation, which allows the employees to carry on as if nothing was wrong. It is this script about marching to make your numbers that causes many employees to come to grief. For it does not matter what your Code of Conduct says or even what senior management might say, it means if the focus is on making your numbers, employees will get that message.

Consider the recently concluded Analogic Corporation (Analogic) and BK Medical ApS (BK Medical) FCPA enforcement action. Here there were two separate high-level red flags raises over the BK Medical bribery program and neither the subsidiary, BK Medical, nor the parent, Analogic, followed through with an investigation, discovered the rather obvious (and blatant) conduct and ended it. How could this occur? Useem notes that Vaughan’s theory allows employees to move beyond acting as if nothing is wrong. They come to believe, “bringing to mind Orwell’s concept of doublethink, the method by which a bureaucracy conceals evil from not only the public but itself.”

Contrast the VW and Analogic examples of Useem who further wrote about Johnson & Johnson (J&J) who had one of the greatest corporate scares of all-time when there were cyanide-laced capsules sold in Chicago area stores in 1982. J&J set the gold standard for corporate crisis response when it pulled every bottle of Tylenol nationwide, warned consumers not to take the product and sustained a $100MM loss. Yet it turns out the genesis of this crisis response had occurred three years earlier when the company’s Chief Executive Officer (CEO), James Burke, became concerned that the J&J Credo, which included a duty to protect those who used the company’s products “had become something like the Magna Carta: an important historical document, but hardly a tool for modern decision making.” Burke led a reinvigoration of the company’s core values into its business practices.

This reinvigoration led directly to the company’s response to the Tylenol-cyanide poisoning. Indeed, Useem said the company’s actions “flowed more or less automatically from the signal sent three years earlier. Burke, in fact, was on a plane when the news of the poisoning broke. By the time he landed, employees were already ordering Tylenol off the store shelves.”

Useem’s article points towards why tone at the top is so important. The tone to do business in compliance with the FCPA must be set by senior management and that message must be continually communicated. When those communications stop and the message becomes ‘make your numbers’ then the company’s commitment to doing business the right way will also falter. Even disgraced former Chief Financial Officer (CFO) of Enron, Andy Fastow, recognized this when he was quoted in Useem’s article for the following, “A robust ‘code of conduct’ can be emasculated by one action of the CEO or CFO.”

The setting of unrealistic sales goals individually or even by region can lead to the cutting of corners. Consider the illegal actions of GlaxoSmithKline PLC (GSK) in China, which led to a fine of approximately $497MM for the company’s bribery of Chinese government officials in the health care sector. GSK had set sales growth of 20% annually in China. How were the leaders of the Chinese business unit to hit these numbers? Apparently that was not something senior management in the corporate office was too worried about. The setting of such unrealistic sales goals can be the simple message that over-rides all the statements about doing business in concert with the business ethics expressed in your Code of Conduct.

Tone at the top does matter. But it is more than simply saying the right thing. It is setting your goals in a realistic manner that can allow employees to reach them without engaging in bribery and corruption or, in the case of VW, fraud. Useem ends his piece with the following, “Decisions may be the product of culture. But culture is the product of decisions.”


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

© Thomas R. Fox, 2016

Lear's FoolI conclude my week honoring the 400th anniversary of the death of Shakespeare by using my favorite character in all his work to introduce today’s post. He is The Fool from King Lear. Of Shakespeare’s many theatrical innovations, his transformation of The Fool from the Renaissance Court Jester of songs, music, storytelling, medieval satire and physical comedy to commentator is right up there for me. The Fool became closer to the Greek Chorus. Shakespeare brought the Chorus commentary function back. As noted in Wikipedia, “Where the jester often regaled his audience with various skills aimed to amuse, Shakespeare’s fool, consistent with Shakespeare’s revolutionary ideas about theater, became a complex character who could highlight more important issues. Like Shakespeare’s other characters, the fool began to speak outside of the narrow confines of exemplary morality. Shakespeare’s fools address themes of love, psychic turmoil, personal identity, and many other innumerable themes that arise in Shakespeare”. Read More

ARound the GlobeWhile the US Foreign Corrupt Practices Act (FCPA) is still the most widely recognized and enforcement anti-bribery and anti-corruption law across the globe, there have been a number of initiatives which will lead directly to greater anti-bribery and anti-corruption enforcement. This increased enforcement will lead to increased risks for companies that do not have anti-bribery and anti-corruption compliance programs in place. This post discusses the efforts of other countries to enact and enforce legislation to curb bribery and corrupt across the globe.


Over the past 18 months, GlaxoSmithKline PLC (GSK) was embroiled in a very public, very nasty bribery and corruption investigation. It culminated in the conviction of GSK and the assessment of a $491 million fine, criminal conviction of four senior GSK China subsidiary managers and the criminal convictions of two ancillary GSK-hired investigators. The entry of the Chinese government into the international fight against corruption and bribery is truly a game-changer. While there may be many reasons for this very public move by the Chinese government, it is clear that foreign companies are now on notice. Doing business the old fashioned way will no longer be tolerated. This means that international (read: western) companies operating in China have a fresh and important risk to consider; that being that they could well be subject to prosecution under domestic Chinese law.

The international component of this investigation may well increase anti-corruption enforcement across the globe. First of all, when other countries notorious for their endemic corruptions, for example India, see that they can attack their domestic corruption by blaming it on international businesses operating in their country, what lesson do you think they will draw? Most probably that all politics are local and when the localities can blame the outsiders for their own problems they will do so. But when that blame is coupled with violations of local law, whether that is anti-bribery or anti-price fixing, there is a potent opportunity for prosecutions.

One of the audit failures of GSK was around well known compliance risks in China, including (1) event abuse planning; (2) mixture of legitimate and illegitimate travel; (3) other collusion with travel agencies; and (4) parallel itineraries. So those risks are well known and have been documented. While the cost of monitoring is high and would involve the tedious work of verifying millions of receipts by calling hotels, airlines and office supply stores and scrutinizing countless transactions for signs of fraud; if your compliance risks are known for a certain profile, then you should devote the necessary resources to making sure you are in compliance in that area.


While GSK was a harbinger of international anti-corruption investigations and enforcement actions based on domestic anti-bribery laws; Brazil and its state-owned energy company Petrobras may become the world’s largest corruption investigation. In a New York Times (NYT) article, entitled “Scandal Over Brazilian Oil Company Adds Turmoil to the Presidential Race”, the scandal was detailed by a former Petrobras official, Paulo Roberto Costa. Mr. Costa was the person who oversaw the company’s refining operations. He has admitted to having engaged in the receipt of bribes for at least a 10 year period “equivalent to 3 percent of the value of the deals from the Brazilian construction companies that obtained the contracts” to build refineries. This amounted to literally millions being “stashed in bank accounts in Switzerland and the Cayman Islands.” He “inflated budgets for new projects” by 3% and then had that amount kicked back to him as bribes. The allegations were verified “through an associate, Alberto Youssef, a black-market money dealer who testified that he helped launder funds in the scheme. Mr. Youssef, who has also accepted a plea deal, testified that more than a dozen of Brazil’s largest construction companies had paid hefty bribes to obtain lucrative Petrobras contracts.” Interestingly, Brazilian President Rousseff “has also effectively acknowledged the prevalence of corruption inside the executive suites of Petrobras, while denying that she had known about the kickbacks when they were taking place.”

The scandal has not only engulfed suppliers to Petrobras in Brazil. It has now moved to the international stage. From shipyards in Singapore, which have been alleged to have paid bribes to Petrobras, to Rolls Royce in Great Britain which has been alleged to have paid bribes for the sale of turbine engines; this scandal truly is international in scope and may engulf more companies going forward. In addition to violations of Brazilian law, the US government has reportedly opened an investigation, as Petrobras USA is a US stock-exchange issuing entity and subject to the FCPA. Indeed, in the US there are already multiple shareholder derivative lawsuits against the US entity for mis-representing its true value because of the corruption allegations against the company in Brazil.

The Petrobras scandal continues to make news almost daily and its repercussions continue to reverberate across the globe. The FCPA Blog, in an article entitled “Swiss AG freezes $400 million in Petrobras bribe probe”, stated that in Switzerland alone there are nine open investigations into alleged money laundering tied to Petrobras. In mid-March the Office of the Attorney General of Switzerland (OAG) announced that they had issued an order to freeze $400 million of assets allegedly tied to a Petrobras corruption scheme. The FCPA Blog further stated the OAG announced “The release of over $120 million reflects Switzerland’s clear intention to take a stand against the misuse of its financial center for criminal purposes and to return funds of criminal origin to their rightful owners.”

The domestic Brazilian Anti-Bribery Law, the Clean Company Act, enacted into law in 2014, is uniquely designed for oversight by internal audit. Compliance programs will be evaluated on three prongs: the structure of the program; specifics about the legal entity; and an evaluation of the program’s efficiency. The first prong will include consideration of the existence of mechanisms for reporting suspected or actual misconduct, training, code of conduct, policies and procedures, periodic risk assessments, and application of disciplinary measures against employees (including senior management too) involved in wrongdoing. Under the second prong, the compliance risks associated will be considered. Compliance programs should be tailored to the company’s risks; “one-size-fits-all” programs will not be accepted. The third prong will consist of a case-by-case verification, that it is not simply a paper program.

Finally, and no doubt spurred by the Petrobras corruption scandal, the FCPA Blog also reported, in another article entitled “After protests, Brazil president issues anti-graft regulations”, that Brazilian President Dilma Roussef issued a presidential decree with regulations under the Clean Company Act. The new regulations issued address some of the crucial questions concerning the administrative procedure for imposing corporate liability and assessing fines. It also set out the criteria for determining fines, evaluating compliance programs, and entering into leniency agreements. Finally, the decree also provides that books and records accuracy and completeness will be a key criterion for evaluating compliance programs, no doubt inspired by the FCPA accounting provisions. As the FCPA Blog said, “The regulations under the Clean Company Act are a critical milestone in the effort to restore credibility to Brazil’s federal government, in light of its past commitments to fighting corruption in the corporate world.”


What does all of the above mean for a global company? It means that some law that prohibits bribery and corruption will cover your business. It will not and does not matter if you are a US, UK or Brazilian company doing business outside of your home country, somewhere a law prohibiting bribery and corruption will cover your actions. Even if you are not covered by the FCPA, the UK Bribery Act or the Clean Company Act, if you are doing business in a local country you can still be subject to prosecution under its domestic anti-bribery laws. This means that there will be greater enforcement going forward and greater cooperation between enforcement agencies.

For businesses the only response to this plethora of new laws is to implement and enhance a best practices anti-bribery/anti-corruption compliance program and there are several examples that companies can follow to do so. In the US, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) provided their suggestions with their Ten Hallmarks of an Effective Compliance Program; the UK Ministry of Justice (MOJ) has provided commentary on the Six Principles of an Adequate Procedures compliance program and the Organization of Economic Cooperation and Development (OECD) has put forth its Good Practice Guidance on Internal Controls, Ethics, and Compliance.

All of these anti-bribery/anti-corruption regimes set forth easily digested concepts that a company could implement. However, there must be more than simply a paper program in place. A company must actually do compliance for it to be effective. By making compliance a part of normal business practices, it will be possible to prevent, detect and then remediate any bribery or corruption issues that may arise.

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

© Thomas R. Fox, 2015