May the 4th Be Wtih YouMay 4th is universally recognized (at least in the universe I inhabit) as Star Wars Day. According to Wikipedia, “May 4 is called Star Wars Day because of the popularity of a common pun spoken on this day. Since the phrase “May the Force be with you” is a famous quote often spoken in the Star Wars films, fans commonly say “May the fourth be with you” on this day.” Given the rejuvenation of the franchise, in the form of Star Wars VII – The Force Awakens all Star Wars fans have reason to celebrate this May 4th in a manner we have not seen for some time.

The most recent entry into the Star Wars oeuvre revolves around a young girl, Rey, a scavenger who was abandoned as a child on the desert planet Jakku. She is patiently waiting for her family to return. She is completely self-sufficient and does everything for herself, until she is drawn into the intergalactic battle. It turns out The Force is strong in Rey and at the end of the movie she returns Luke Skywalker’s light sabre to him, strong implying that he is her father. Not so has intoned director J.J. Abrams, who has said publicly that Rey’s father did not appear in Episode VII. Rey is also, as my teenaged daughter informed me, “kick-ass”. Read More

Blackie SherrodBlackie Sherrod died last week. To any reader of sports pages across the nation and most particularly in Texas, Sherrod was about as good as it got. For me, he was right up there with Red Smith, Frank DeFord and Shirley Povich as one of the greatest sports writers of the second half of the 20th Century. His columns on the Dallas Cowboys in the 1960s and 1970s were truly pieces of art to be marveled at when savoring. He also had the good sense to hire Dan Jenkins and Bud Shrake as young sportswriters.

I thought about Sherrod when I read a recent article in the Harvard Business Review (HBR), entitled “Making Exit Interviews Count, authors Everett Spain and Boris Groysberg assert that exit interviews, when conducted with care, can be a very useful tool in two important areas: to increase employee engagement, to reveal what may not be working in the organization. Read More

People-ProcessIt is rare you are able to write about someone who directly changed the quality of your life. Rarer yet that you did not know about him, only what he created, until you read his obituary. That happened to me recently when I read about the death of Dr. Peter J. Jannetta in the New York Times (NYT). Dr. Jannetta discovered a rare medical condition that affects hundreds of thousands Americans. That disease is trigeminal neuralgia, which affects cranial and facial nerves. It can cause such intense pain that its nickname was the suicide disease because that was the only way for many of those afflicted to make the pain stop. Yes it is that bad.

What Dr. Jannetta discovered was that in those afflicted, the fifth cranial nerve becomes entangled with hyper small veins, arteries and capillaries would impinge on the nerve, setting off intense pain. Yet Dr. Jannetta did not stop there, as he hypothesized that if such impingement was the cause of the pain, by removing the impingement, it might end the pain. It turns out he was correct and he developed the surgery called arterial decompression. Read More

OthelloWhich play in Shakespeare’s cannon presents the biggest clash of cultures, which leads to the most catastrophic result? I would have to opine Othello, one of the great tragedies in all of Shakespeare. Othello, a Moor and General in the service of the Venetian republic, wins great honors on the fields of battle with the Turks. He also wins the hand of the lovely Desdemona. However, off the battlefields, Othello falls prey to the whiles of Iago, who convinces Othello of the infidelity of his bride. Othello murders his wife and then, realizing his mistake, takes his own life.

There are many culture clashes going on in the play. The military ethos vs. the deceit of civilian life, African tribal culture vs. the isolation of life in Venice, and even the warm bloodedness of a Moor vs. the chilly civilization of 16th century Venice. Yet it all leads to one thing – destruction. Read More

SECYesterday, I used a quotation from the Oscar winning animator, Chuck Jones who described two of his well-known creations, Roadrunner and Wily E. Coyote, by referring to philosopher George Santayana’s description of fanaticism when he articulated these cartoon characters as “redoubling your effort after you’ve forgotten your aim”. That would seem to be an excellent description for the pharmaceutical giant Novartis who recently settled a Foreign Corrupt Practices Act (FCPA) enforcement action for approximately $25MM. Yesterday I reviewed the underlying facts and today, I want to consider what the company did after it discovered the illegal conduct, what its obligations may be going forward and the lessons to be learned for the compliance practitioner.

As noted in the Securities and Exchange Commission (SEC) Cease and Desist Order (the Order), Novartis began its investigation based on an ongoing SEC investigation and “in response to media reports concerning a competitor in August 2013”. Based on this information the company “instituted an expansive review of its relationships in China with travel and event planning vendors.” Novartis actions should be well considered by every Chief Compliance Officer (CCO) and compliance professional going forward. If a competitor gets into FCPA hot water, whether through an investigation or enforcement action, this is clear signal for you to consider your company’s actions in the same area, whether that competition is in products, services or, in the case of Novartis, the same geographic area. Moreover, at this point in the history of FCPA enforcements if you are doing business in China you should take a deep review into your own operations and if you are looking to do business in China, you should put the appropriate anti-corruption protections and compliance internal controls in place.

Novartis’ internal investigation identified not only several weaknesses but also clear violations. The company found (1) “the vast majority of these vendors were retained in connection with events in which HCPs [health care providers] attended.” (2) There were a significant percentage of events that did not comply with existing compliance policies and procedures. The Order noted, “This included events for which no record existed to verify it had occurred, events for which inconsistent records existed, and events that could not be verified from available information.” (3) The company also determined through the internal investigation that its Chinese subsidiaries were using the mechanism of “travel agencies and similar vendors to plan events, funds were generated that were used to provide improper payments and other inducements to HCPs in order to increase sales of Novartis products.” Implicit in this find was that the company had not properly recorded these payments by and through travel agencies in its books and records.

In the Order section entitled, “Undertakings”, the SEC laid out what the company agreed to do on a go forward basis. Over a two-year period, they agreed to “(1) conduct an initial review and submit an initial report, and (2) conduct and prepare at least two follow-up reviews and reports”. This Initial Report is to be presented within six months after the entry of the Order and is to set forth “a complete description of its Foreign Corrupt Practices Act (“FCPA”) and anti-corruption related remediation efforts to date, its proposals reasonably designed to improve the policies and procedures of Respondent for ensuring compliance with the FCPA and other applicable anticorruption laws, and the parameters of the subsequent reviews”. The Follow Up Reports are “to further monitor and assess whether the policies and procedures of Respondent are reasonably designed to detect and prevent violations of the FCPA and other applicable anti-corruption laws”.

In an interesting limitation and one no doubt in response to HSBC Deferred Prosecution Agreement (DPA), where the US District Judge overseeing the terms of the DPA ruled that “the public has a First Amendment right to see the monitor’s report”. This was over the objections of HSBC, the Department of Justice (DOJ) and the Monitor. The Order reads, “The periodic reviews and reports submitted by Respondent will likely include proprietary, financial, confidential, and competitive business information. Public disclosure of the reports could discourage cooperation, impede pending or potential government investigations and thus undermine the objectives of the reporting requirement. For these reasons, among others, the reports and the contents thereof are intended to remain and shall remain non-public, except (a) pursuant to court order, (b) as agreed by the parties in writing, (c) to the extent that the Commission staff determines in its sole discretion that disclosure would be in furtherance of the Commission’s discharge of its duties and responsibilities, or (d) is otherwise required by law.”

While the both the SEC and Novartis recognize that these reports can (always) be released if compelled by court order, as this enforcement action was resolved in the SEC Administrative Process, there would seem less likelihood that an interested citizen or even John Q. Public would seek release of this information. Further, the reporting agreed to in this Order could arguably have some attorney-client privilege as opposed to an outside third party Monitor as was selected in the HSBC matter, who could not even argue attorney-client privilege.

Even with these key differences, it is interesting to see such language in this Order and it could well be a manner for companies and the government to use going forward to help to keep follow up reports to the government post settlement confidential and away from disgruntled shareholders or their lawyers who might want to use the information in follow-on shareholder litigation. Finally, this could be one more reason companies agree to the SEC Administrative Process, to keep such information out of the public eye.

 

Remember the quote “redoubling your effort after you’ve forgotten your aim” as this would certainly seem to be an apt way to think about doing business in China, particularly under any type of FCPA analysis. Yet Novartis clearly got the message and moved to investigate, remediate, self-report and then work to make sure such issues do not arise in the future. They are to be commended for their work in this area. It would benefit the CCO and compliance practitioner to review the                                                           solid lessons from the Novartis FCPA enforcement action, especially in these key areas: (1) fraud schemes to develop monies to pay bribes; (2) weaknesses in compliance internal controls; (3) the clear benefits of self-reporting; (4) robust and effective internal investigations; (4) remediation during the pendency of an investigation; and (5) creating a process to test the effectiveness of your compliance program going forward.

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, 2016