Herbalife Charged Criminally for Bribery

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This morning Herbalife (NYSE: HLF) was charged criminally for paying bribes to Chinese officials. The action is related to criminal liability under FCPA (U.S. Foreign Corrupt Practices Act).

The company disclosed in an SEC filing today:

  • Herbalife violated the books and records and internal controls provisions of the FCPA
  • The company will pay $123 million as a settlement with the SEC and DOJ, and this amount has been included in current liabilities on the June 30, 2020 financial statemetns
  • If the company doesn’t have any other violations for 3 years, this deferred charge will be dismissed

Herbalife disclosed in May that it had entered into a settlement agreement with the government. Today’s court proceedings make it official.

It’s fun to see pyramid schemes being held to account, even if it doesn’t happen often enough.

CFO Magazine: Creating a Culture of Compliance

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I was recently quoted in CFO Magazine for an article on creating an ethical culture within companies. Below are a few excerpts, including my comments.

In December, the federal government cited a “lax corporate control environment” at Alcatel, which extended right up to the CEO and CFO, as a primary cause of the scandal. It was a finding that more companies should take to heart.

Nearly a decade after the passage of the Sarbanes-Oxley Act, and amid heightened FCPA enforcement, the responsibility for shaping what is often called a “culture of compliance” inside U.S. corporations falls heavily on the C-suite — and, more than ever, on the CFO. Continue reading

Dodd-Frank Whistleblower Rule Adopted by SEC Discourages Internal Reporting

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The Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted on July 21, 2010, established a whistleblower incentive program requiring the Securities and Exchange commission to provide monetary awards to whistleblowers who come forward with information about the violation of federal securities laws, including violations of the Foreign Corrupt Practices Act (FCPA). The Act also prohibits employers from retaliating against those who provide information about securities violations.

The reward for providing information that leads to a successful enforcement action by the SEC which results in monetary sanctions over $1,000,000 can be 10% to 30% of the penalty paid. Continue reading

FCPA Books and Records Violations: The Government Will Always Win.

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The Foreign Corrupt Practices Act (FCPA) is aimed at preventing bribery of foreign officials. One key part of the FCPA is the books and records provision, which includes the following from 15 U.S.C. § 78m:

(2) Every issuer which has a class of securities registered pursuant to section 78l of this title and every issuer which is required to file reports pursuant to section 78o (d) of this title shall—

(A) make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer; Continue reading

Learn From the Costly FCPA Mistakes of Others

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A recent Compliance Week article, An Expensive Lesson on FCPA Compliance [subscription required], provides some valuable insights on the direction that our government is taking with enforcement. Foreign Corrupt Practices Act violations are a huge focus of the feds right now. Why? Because there are plenty of violations, there is pressure on the SEC to enforce laws of some sort, and there is money to be made in fining the violators.

According to Richard Kassin at The FCPA Blog: Continue reading