In this episode, I visit with Matt Ellis, a partner at Miller & Chevalier. Ellis has recently published his first book The FCPA in Latin America. Ellis’ discusses why he wrote the book, some of the key issues around FCPA compliance in Latin America and debunks the myth that Latin Americans desire bribery and corruption in their business dealing.

When I received my copy, my first thought was that, finally, it’s about time for this book to come out. Then I read it and realized I was glad he put so much time into it. I am referring to Matt Ellis’ new book The FCPA in Latin America, which was published by Corporate Compliance Insights (CCI) last fall.  If your company gets into Foreign Corrupt Practices Act (FCPA) hot water in Latin America, I tell folks that Matt Ellis is the guy to call. Not only is he fluent in both Spanish and Portuguese; he has extensive work experience in Latin America, performing investigations for the World Bank. Now a partner at Miller & Chevalier, he is a member of the firm’s top notch FCPA team. Fortunately for the rest of us, Ellis published his book. It combines key FCPA enforcement actions with practical advice on how to handle compliance work in Latin America.

With the Petrobras scandal still ongoing, the recent FCPA guilty pleas from individuals involved with the Venezuelan state oil company Petróleos de Venezuela SA (PDVSA) and the recent FCPA and greater global enforcement action involving the Brazilian construction giant Odebrecht, we are seeing an uptick in focus on bribery and corruption in Latin America. If your company does business in or you are representing clients doing business in that part of the world, you need to read this book.

In chapters 2 & 3, Ellis details some of the reasons bribery and corruption risks can be so paramount in Latin America. He details not only the structural reasons for corruption but some specific corruption risks which may not be immediately apparent to a US-centric compliance practitioner. He also discusses the always delicate subject of conveying US based compliance solutions to a Latin American business audience and suggests explaining some specific provisions of the FCPA for a Latin America based company.

He goes through a number of risks a company doing business in Latin America could well face. It includes regulatory risks and associated risks in public procure; risks for being shaken-down at the border by customs officials and other law enforcement corruption risks and the ever touchy issue of facilitation payments. He also speaks to specific risks from family owned businesses and monopolies unique to the region. Additional conversations include describing the FCPA’s accounting provisions and criminal bribery provisions; explaining the declination process and how compliance with the FCPA is actually good for the bottom line.

In Chapters 5 & 6 Ellis discusses some tailored compliance strategies for both Latin American based entities and US companies doing business in Latin America. Beginning with risk based compliance programs, Ellis moves to unique training scenarios, ongoing monitoring and auditing as key tools to upgrading your compliance regime and the always difficult problem of sham contracts and phantom vendors which can be problematic in the region.

He also relates how cultural norms in Latin American can lead to companies and their employees embracing compliance. He then relates how to build off of this enthusiasm and use it as momentum to move forward. He starts with the “Circle of Trust” and uses that discussion to focus on the inherent cultural values. He concludes with a piece on the cultural nuances regarding internal reporting in the area.

He devotes an entire chapter to managing third party risks in Latin America, which is always a significant risk. He lays out some common red flags to look for, how to conduct effective due diligence and (where the rubber meets the road) managing third party relationships and how to manage third party relationships with the government officials you will inevitably interact with going forward. He concludes this chapter with some timely words on how to respond to third party corruption.

His text concludes with a chapter about what a Latin American company should do if it comes under FCPA suspicion, investigation or is simply required to respond to the inquiries from a US contractor. He talks about retention and use of counsel, what to expect in the investigation process and the importance of the discussion around the decision to disclose to the Department of Justice (DOJ), Securities and Exchange Commission (SEC) or the appropriate local authorities.

All of these facets would be worth the price of admission alone. However, I have saved what I feel is the best for last. Ellis opens his book with a firm debunking of the US-centric myth that corruption is endemic to Latin America, which many Americans believe to be the only way to do business in region and in fact is what Latin Americans want to do in the first place. He exposes these myths and the final one that the FCPA is bad for business for what they are: stereotypical blatherings from people who simply do not know the region. Every compliance practitioner should read Chapter 1 and be thoroughly familiar with these points.

For the Latin American company looking to do business in the US or attract US investment, having an effective compliance program is a mandatory requirement. This book lays out for entities and business people what will be expected of them. As Ellis is publishing his book in Spanish and Portuguese as well, this book could become the standard text for business folks in Latin America.

Matt Ellis has set the standard for anyone who   wants to understand FCPA compliance in Latin America. More than simply a recitation of the rules, The FCPA in Latin America speaks closer to my heart because it is about actually doing compliance. If you are doing business in Latin America or even considering it, you need to read this book.

You can check out a copy of The FCPA in Latin America on Amazon.com by clicking here.

1000Yes, indeed the Grateful Dead can and does inform your compliance regime as today is my 1000th blog posting on the FCPA Compliance and Ethics Blog. To say that I ever thought I would see this day or this many blog posts, would portend a level of clairvoyance that even Carnac the Great could not conceive of pontificating upon. I had struggled with a theme for this momentous accomplishment but my sublimely-grounded English wife brought me down from the ethereal clouds with the following suggestion, “Even an old dog can learn new tricks.” Nothing like being married to a younger woman.

So today, I want to write about some of the things I have learned on this 4+ year journey, which began in late 2009/early 2010 after a serious automobile/bicycle event (Box Score: Hummer-1 Tom-0) where about the only thing I had on my hands was time while I was at home convalescing. I started to explore the world of social media, engaging on Twitter, webinaring from my home office and blogging. I was so un-savvy in this arena that about the only positive thing my teenaged daughter could say about me was “Dad, you are so unhip, you are retro. But that is cool too.” The first thing I learned was that even a complete computer misfit and social media idiot could set up a blog on WordPress. It is not only easy but free. I cannot say with any pride that some of my early blogs were very good but I can say that for a lawyer, whose only skill was to be able to perform word processing in Microsoft Word, I could type and then upload a blog post into WordPress. At that point in my blogging career, that was a major accomplishment.

Although it did take some time, I learned how to stop writing like a lawyer, with full citations in each blog, coupled with as much lawyerese as I could manage, by finally adjusting to a blogging format. I also relearned an old lesson, which says that if you really want to learn about a subject, write on it. I remember one of the first things I learned when researching the Travel Act was that this Kennedy era law, passed largely through the efforts of Bobby Kennedy, was designed to help in the fight against organized crime. So who would say a 60 year old law cannot be used for a 21st century purpose? Or maybe even a Watergate-era like the Foreign Corrupt Practices Act (FCPA) could not have an expansive use, beyond that for which it was passed in 1977? I also learned that if you put out solid content people will read and listen to what you have to say.

I learned there are some great people out there blogging in the ethics and compliance space. I have met some fabulous colleagues through my blogging who have not only been incredibly supportive but whom I now cherish as good friends. Some of them include Mike Koehler, the FCPA Professor, for his scholarly rigor and continued intellectual challenges. Dick Cassin, the Dean of FCPA bloggers, for his unflinching support to myself and so many others. Mike Volkov, former prosecutor and DC-insider, who is always around to bounce a tough question off. Howard Sklar, who was my This Week in FCPA podcast partner, until we lost him to the corporate world. Francine McKenna, a great and generous mentor for myself and many others and the go-to person all issues in and around the accounting world. Jim McGrath, the internal investigations guy, who brings a former state prosecutor’s perspective to how investigations should be handled and critiqued. Matt Ellis, whose focus on and insights into South America (as in – it’s not a country) continue to shine a light on anti-corruption issues south of the border. Matt Kelly, Editor of Compliance Week, who saves some great witticisms for his weekly blog posts. These are but a very few of the folks I am now privileged to call friends because of my blogging.

I learned that there is way too much white noise in the FCPA space. The FCPA Professor calls them FCPA Inc. and Mike Volkov derides them as the FCPA paparazzi. Whatever you might call them, they put out reams and reams of information, sometimes useful but many times not. What I have tried to do is synthesize some of the most useful for the Chief Compliance Officer (CCO), compliance practitioner or anyone else who does the day-to-day work of anti-bribery/anti-corruption compliance. There are many, many things you can know but a far smaller subset of what you need to know. I try to bring to the compliance practitioner what they need to know. That is why the subtitle of my blog is ‘The Nuts and Bolts of FCPA Compliance’. I have tried to write about things which the compliance professional can use in the everyday practice of compliance.

I have learned that blog posts, which I thought were the most important, may turn out to be the least viewed blogs. Conversely, posts I did not think would be of great interest turned out to have the largest number of one-day hits. For instance, the largest single number of one-day hits I had was an article from two years ago about the SNC-Lavalin corruption investigation in Canada. [For a blog about FCPA compliance-go figure.] The second largest number was a recent blog post using the GM internal investigation as an exploration in the differences between a corporate legal function and its compliance function.

I have learned that by committing to something, you become much better at it. My first year of blogging, I tried to put out 2-3 blogs per week but beginning in 2011, I committed to a daily blog post. Once I made that commitment, blogging became a part of my workday. Once it became a part of my workday, it was like any other project or assignment. I had to set aside the time to work on it. It has made me a much more efficient and better writer to know that I need write something, during my workday. Yes there have been times I was up at 5 AM to write a post or stayed up way past my school-night bedtime trying to crank something out but those situations have become few and far between as I became more disciplined about my blogging.

But most of all I have learned that blogging is fun. It is fun because it is a challenge to write about something in an informative and engaging manner. It is fun to tie a Shakespeare play to a compliance and ethics theme. It is fun to read a week’s worth of Sherlock Holmes’ stories and tie a compliance topic to a story each day for one week. It is fun to find out what happened this day in history and use it as a hook to grab your readers’ attention. It is fun to engage in a debate with the FCPA Professor on a topic of mutual interest, where we look at the same thing, yet see it from different perspectives. And it is fun when you meet someone for the first time and after you introduce yourself, they say to you “When is a rose, not a rose? When it’s a FCPA violation”.

Where will the next 1000 blogs posts take me? I have no clue but if they are as much fun as the first 1000 posts have been I hope that you will continue to join my on This Long Strange Trip.

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

In December 2012 the BBC online service reported that Rolls-Royce Motor Cars Limited (Rolls-Royce) was in talks with the UK Serious Fraud Office (SFO) regarding potential allegations of bribery and corruption in Indonesia and China. It was reported that the investigation began in 2011 when the SFO requested information from Rolls-Royce about possible bribe-paying in those two countries. This prompted Rolls-Royce “to bring in a legal firm to conduct an internal investigation earlier this year, which uncovered potential misbehaviour in other countries as well as the two named by the SFO.” The investigation focused on certain intermediaries involved in the countries in question. The Guardian reported the initial bribery issue was reported by a whistleblower, former Roll-Royce employee Dick Taylor, and involved allegations of bribery and corruption in Indonesia and China. According to the Financial Times (FT), Taylor had made these allegations for at least six years that Rolls-Royce paid bribes to secure business for its civil aircraft engines in Indonesia. At least as long ago as 2006 Taylor took his concerns public by posting statements on local newspaper and industry news internet sites. The Guardian stated that Taylor “claimed that Tommy Suharto – a son of the late President Suharto – received $20 million and a Rolls-Royce car to persuade the national airline, Garuda, to order Rolls-Royce Trent 700 engines in 1990.”

The FCPA Blog reported earlier this month that a pseudonymous blogger, named by the FT as ‘Soaringdragon’, claimed that “Rolls-Royce propelled itself into the Asian market with the help of payments passed to an executive of Air China and China Eastern Airlines. Executive Chen Qin, who worked for both airlines, allegedly acted as Rolls-Royce’s intermediary in two pivotal deals inked in 2005 and 2010, worth $2 billion in all. Chen is thought to have been detained for corruption in April 2011.” All the allegations currently made against Rolls-Royce were for actions prior to the application of the UK Bribery Act, which became effective on July 1, 2011.

Rolls-Royce is reported to be co-operating with the SFO in the investigation. The company announced that it found concern regarding the markets of China, Indonesia and other markets as well. The company reportedly released its findings over to the SFO which has not yet announced whether it would open a separate investigation or if it had made any decisions on whether it would prosecute the company. Chief Executive John Rishton was quoted as stating, “I want to make it crystal clear that neither I nor the board will tolerate improper business conduct of any sort and will take all necessary action to ensure compliance. This is a company with exceptional prospects, and I will not accept any behaviour that undermines its future success.”

Last week Rolls-Royce announced that it had retained Lord Gold to review its overall compliance program. The FT reported “Having to bring in Lord Gold to examine the robustness of the company’s compliance efforts indicates just how much Rolls-Royce wants to avoid an SFO, or worse, a DoJ probe. He has been brought in to Rolls-Royce precisely to avoid the costs associated with BAE’s bribery investigation, and thus his role is much more similar to the one Lord Woolf played at BAE.” For a company known to have an opaque culture, bringing in Lord Gold “has the potential to upset the Derby-based company’s deep-seated culture more than anyone in its recent history.”

I thought about this move by Rolls-Royce when I re-read a posting, entitled, “Wal-Mart, Go Big on FCPA Compliance”, by my colleague Matt Ellis, in his blog, FCPAméricas. In this post he detailed some of the ways that he thought Wal-Mart could use the opportunity afforded by its bribery and corruption scandal in Mexico “as an opportunity. It is an opportunity to go big on compliance.” Matt talked about how Siemens changed its culture after having paid the highest fine for violations of the Foreign Corrupt Practices Act (FCPA) in the history of the world ever. Moreover, Matt listed several things that he thought Wal-Mart was uniquely positioned to accomplish because of its size and strength, which were as follows:

  • Wal-Mart could use these same tools to build a state-of-the-art corruption risk-tracking program to which its compliance practices could respond in real time.
  • Wal-Mart could use its enormous leverage in international markets to educate foreign audiences on compliance.
  • Wal-Mart could train these landlords of the stores they lease internationally on compliance.
  • Wal-Mart could require landlords to put a FCPA or other anti-corruption compliance programs in place themselves.
  • Wal-Mart could begin to teach communities how to identify and avoid risks of petty corruption.
  • Wal-Mart could partner with local municipalities to launch reporting centers in its Supercenters.

I am not certain Lord Gold could accomplish some of the things that Matt has suggested that Wal-Mart put in place as Wal-Mart is the world’s largest retailer and Rolls-Royce is, well the name says it all, Rolls-Royce. But after the black-eye the British defense and aerospace industry took in the BAE corruption and bribery scandal, Rolls-Royce may be able to use this opportunity to lead a culture change in this British market segment. According to the FT, “Lord Gold’s job at Rolls-Royce will be closer to that of Lord Woolf, who made wide recommendations at BAE after it became embroiled in a corruption and bribery scandal. If Lord Gold is similarly radical, he could completely change the way Rolls-Royce does business, forcing it to limit its use of intermediaries, or even prompt the resignation of senior executives, as happened at BAE.”

I think that the lessons for the compliance practitioner from Rolls-Royce are two-fold. First and foremost, get ahead of the curve. If you believe that you have found evidence of systemic bribery and corruption, your company has to self-disclose and work with the appropriate enforcement agency, whether that is the US Department of Justice (DOJ) or the SFO. But more than self-disclosure and extraordinary cooperation, be proactive in attacking the policies, processes and procedures which led to the allegations of corruption.

Bringing in a Lord Gold, who has dealt with “A multibillion-pound spat between oligarchs, investigating cronyism in British politics, and helping one of the world’s best-known brands respond to corruption allegations have been his bread-and-butter since the veteran litigator set up his own advisory boutique in 2011”, can certainly help give you credibility on either side of the Atlantic. On the US side, the first name that pops in my mind is Louis Freeh, former Director of the Federal Bureau of Investigation (FBI), whose work has ranged from the Penn State/Jerry Sandusky investigation to the Trustee in the MF Global bankruptcy to his appointment to the Ethics Committee of FIFA. If you want another name, I can certainly recommend John Hanson, aka “The Fraud Guy”. He is a retired FBI agent, has worked in the fraud investigations and forensic accounting practice of a large publicly traded international financial consulting firm and has been an independent monitor under Deferred Prosecution Agreements (DPAs). Both of these guys know their stuff and are very well respected in the compliance community.

I think the clear import of Matt Ellis’ article is to ‘think big’ and outside the box. If you proactively attack what went wrong that led to bribery and corruption, I think it will pay off dividends with the DOJ or the SFO.

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

Today we continue our interview series with last year’s New Comer of the Year-Matt Ellis, author of the FCPAméricas Blog.

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1. Where did you grow up and what were your interests as a youngster?

I grew up in Dallas, TX. I was lucky to graduate from the best private school in the city, where I was on significant financial aid. I loved it and excelled. My senior year I was elected student body President, and tried hard to do more than just plan good parties. Texas made a lasting impression on me. The heavy influences of Mexico gave me a taste early on for Latin American culture. The state’s entrepreneurial spirit eventually empowered me to launch my own law practice.

 2. Where did you go to college and what experiences there led to your current profession?

I went far away to Dartmouth where, in a small town in New Hampshire, I was exposed to the world. My first-year roommate was a Sikh from India who had never stepped foot in the United States. I took courses in Latin American politics, studied Spanish in Barcelona and Art History in Italy, taught English in Switzerland, and interned in the East Wing of the White House, where I observed Bill Clinton, up close, interacting with foreign dignitaries. College made me want to see the world.

After graduating, I moved to Argentina where I planned to stay for three months. I wound up staying for three years. My goal was to learn Spanish fluently, at a professional level, and I had to immerse myself. I moved in with a group of young Argentine guys who didn’t speak English. I got a job at General Motors Argentina. Ninety percent of my work was in Spanish and 100% of my socializing. I had no choice but to become fluent — if not, I wouldn’t have a pay check or a social life. Then the President of GM Argentina persuaded me to study Portuguese as well. He knew that Brazil would be the next big thing. This was before the term “BRIC” existed. He was right. Today, Brazil is the source of a good amount of my work.

 3. After beginning your career in a large, multi-national law firm you went to the World Bank. Can you tell us why you moved over, what you did and how has it informed your compliance and ethics practice going forward?

Very few attorneys from the United States have the chance to work on anti-corruption matters at The World Bank’s Integrity Vice Presidency (INT). After law school at Georgetown, I was working at a major law firm with a leading FCPA practice. We were advising INT on the development of the World Bank’s Sanctions program, grappling with questions like: How does the Bank ensure that the funds it loans to the developing world actually make it to building the roads and bridges, purchasing the medicine, etc., and are not diverted into the pockets of corrupt government officials?  INT was staffed with a smart group of people from every corner of the world, and I hit it off with the team. When I received an offer to work as an investigator and litigation specialist, I seized it. I spent two years at the Bank, conducting internal investigations throughout Central Asia and Eastern Europe.

I took three vital lessons from my time at the World Bank. Each has informed my FCPA compliance work since then. First, contrary to the view that corruption is “cultural” or “accepted” by certain people, I learned that ethical business is an important concept wherever you are in the world. On the front lines, no matter the country or culture, rarely are citizens accepting when public officials use government positions for personal gain. Toleration should never be mistaken for endorsement. Second, the rapidly developing anti-corruption norms with which we work are having a profound effect on the ground throughout the globe. The more that corrupt actors are brought to justice, the more that individuals see universal business standards at work, and the more they are empowered themselves to push back. Third, an appreciation for cultural nuance is essential to compliance. When introducing World Bank procurement standards to a small, regional consulting firm in India, or vetting a sales agent in Brazil, practitioners have to account for context, language, and background to do the job effectively.

 4. Many people think that South America is a country. You seem to have different thoughts on the subject. What are some of the unique or specific challenges when working on compliance related issues in South America? Are they different if you represent an indigenous company rather than a US company with a South American affiliate?

Compliance in Latin America must respond to the local landscape to work. Corruption risks in the mountainous jungles of Colombia are different from those in the concrete jungles of Sao Paulo. While companies can usually count on the police in Chile, in Mexico the police are often the problem. To design an internal reporting program in Argentina that works, practitioners must understand the inherent skepticism that people there have for anonymous tips.

Cultural nuance is even more important when working on compliance for Latin America-based companies. Imagine a local company that has been built over the years where corruption is around every corner, and has now gone global. Education on compliance takes time and steady commitment. Buy-in is achieved person-by-person, unit-by-unit. With time, companies begin to see the value in adhering to international standards. Only when business leaders appreciate the stakes are they willing to engage in the wholesale reform and commitment of resources necessary for compliance to work. The learning curve is steep. But the trends of globalization are going in only one direction.

5. Why did you start your Blogsite, what did you hope to achieve from it and what will be your focus going forward?

I want FCPAméricas to serve as a bridge between two worlds. One world involves United States law that is currently driving anti-corruption compliance by creating powerful incentives. The other world is where the bribery usually occurs, a world of drastically different cultures, norms, languages, and histories. The blog’s aim is to try to connect the two.

My experiences interacting, living, working and attending school with people from around the world drive the blog’s direction. I relate my job as an FCPA lawyer to the jobs many of my graduate schoolmates now have in the foreign service, working in embassies all over the world, where they liaise with foreign officials and help U.S. companies working abroad navigate the waters. I perform a similar service. I help companies manage risks when doing business in far-off countries. I help them understand the rules of the global economy. Why is this important? In an age of globalization, the world of business opportunity has suddenly grown a lot bigger. At the same time, companies cannot do business like they used to. In the past, cross-border business could be done with a handshake, and the hand often had a $20 bill in it. Nowadays, multi-million dollar investments are made with the click of a button. But bribes can put people in jail. As a result, the challenge of global business no longer is about paying off the right person to get the job done. It is about ensuring that your company thrives while following applicable international rules. This means structuring compliance programs to be effective. This requires local know-how. I help companies bridge the gap.

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