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The Red Scare: Knowledge and the Importance of Due Diligence
Filed under: Agents,Anti-bribery law,Best Practices,Compliance Champion,compliance programs,D&O Diary,Department of Justice,Due Diligence,Export Control,facebook,FCPA,Greg Smith,Mary Jones,This Week in FCPA — tfoxlaw @ 1:16 am
Tags: best practices, compliance programs, Department of Justice, DOJ, Due Diligence, FCPA, FCPA Professor, Mary Shaddock Jones
Ed. Note-we continue our series of guest posts from our colleague Mary Shaddock Jones, who today looks at the importance of due diligence.
At midnight on November 9, 1989, East Germany's rulers gave permission for the Berlin Wall, separating East and West Berlin, to be opened up. Ecstatic crowds immediately began to clamber on top of the Wall and hack large chunks out of the 28-mile barrier. I remember viewing the scene on T.V. It was a momentous moment in world history. For those of you who may not know, while East Germany never officially adopted a "red flag" for its country, on most official buildings, the national flag (black-red-gold with hammer and circle) was flown with a solid red flag flown next to it! Twenty-two years later the "fall of the Red Flag of East Berlin", seems like distant memory. However, for businesses doing business internationally the "red flag" has once again come to represent a warning or a threat in terms of liability under the FCPA
The Lay Person's guide to the FCPA published by the Department of Justice warns U.S. firms about their choice of overseas partners and agents. A bad choice is someone who is likely to make corrupt payments. That likelihood, the DOJ says, is usually indicated by warning signs called "red flags." If there are red flags to start with, and if the intermediary does bribe a foreign official to help the business, the company will have trouble arguing it shouldn't be responsible for an FCPA violation based on an indirect corrupt payment.
Red flags, as the name suggests are easy to spot, and include such things as: (1) unusual payment patterns or financial arrangements; (2) a history of corruption in the country; (3) a refusal by the foreign joint venture partner or representative to certify that it will not take any action that would cause the U.S. firm to be in violation of the FCPA; (4) unusually high commissions; (5) Lack of transparency in expenses and accounting records; (6) An apparent lack of qualifications or resources on the part of the joint venture partner or representative to perform the services offered; and, (7) a recommendation from the local government of the intermediary to hire this particular third party.
Although red flags are often relatively easy to discover, the failure to look may result in a company being subject to severe penalties. As a result, prior to dealing with any third party, companies should conduct Due Diligence in an attempt to discover whether the third party is involved in any prohibited corrupt practices or has some connection to a foreign government official that you may not be aware of. Due diligence is thus an essential tool, as it allows one to acquire knowledge of any existing or potential "red flags", thus enabling entities to make informed decisions on whether or not to interact with or transact business with certain persons and entities.
The practical pointer for today's blog is this- The undeniable truth is that Companies must know who they are doing business with and, as importantly, why they are choosing to do business with this particular entity. This requires the accumulation of information! In order to collect adequate information concerning prospective third-party Agents or Business Partners, many companies are now using a consistent set of tools, for example: (1) questionnaires requiring the person within the company who is recommending the retention of a third party to provide basic information such as the reasons for engagement, the specific services required, how prospective third-party individuals or companies were selected for possible service, relevant experience and capabilities of the prospective third party, whether the prospective third-party would need to interact with government officials, how much and in what manner the third party should be compensated, etc.; (2) a questionnaire submitted to the prospective third party requesting significant information regarding the ownership, physical location, management, experience, relationship to foreign government officials, references of the third party and an assurance by the third party that it understands and is willing to comply with anti-corruption laws and regulations; (3) some method of vetting the reputation and background of the prospective third-party representative or business partner. Ultimately, the level of due diligence required will generally be commensurate with the level of perceived risk.
When conducting due diligence of high-risk third parties, one should typically employ the services of third party professionals. These professionals can help insure that the high risk third party does not pose potential FCPA liability through the use of various means such as: checks of corporate filings and business records, legal proceedings, Internet searches, and adverse media checks. Furthermore, many emerging markets and developing countries pose such a great risk of FCPA liability, that additional due diligence procedures including "in-country" (a/k/a "boots on the ground") searches may be required such as: conducting searches of localized public records, phone interviews, site visits, and reference checks.
Consider the following policy language:
Under the U.S. FCPA, the Company and its Personnel could be liable for indirect offers, promises of payments, or payments to any Government Official (or to private entity if the UK Bribery Act is involved) if such offers, promises, or payments are made through an Agent or Partner with the knowledge that a Government Official will be the ultimate recipient. As a result, it is important that the Company, through the Company Compliance Officer, consider the necessity of conducting anti-corruption due diligence on a prospective Agent or Partner. If after performing a risk assessment the Company concludes that a due diligence investigation should be conducted, then the extent of the investigation must be determined. The degree of due diligence the Company will perform depends upon a lot of factors, including the dollar value of the arrangement, the expected contact with government officials, and the country at risk. In making the determination, the Company will consider whether the transaction raises "red flags".
Examples of common "red flags" with third parties are as follows:
The prospective acquisition target, Agent, or Partner insists that its identity remain confidential or refuses to divulge the identity of its owners, directors, or officers.
Family, business or other 'special' ties with government or political officials.
Reputation for violation of local law or company policy, such as prohibitions on commissions, or currency or tax law violations. Also negative press, rumors, allegations, investigations or sanctions.
The transaction or the prospective acquisition target, Agent, or Partner is or operates in a country where there is widespread corruption or a history of bribes and kickbacks
Requests from government officials or agencies to engage or hire specific third parties.
Inadequate credentials for the nature of the engagement or lack of an office or an established place of business.
Missing or inadequate documentation to support services and invoices. Unsupported charges or expenses, requests for payment of non-contracted amounts.
Convoluted or complex payment requests, such as payment to a third party or to accounts in other countries, requests for payments in cash or requests for upfront payment for expenses or other fees.
Requests for political, charitable contributions or other favors as a way of influencing official action.
Third party has a reputation for getting 'things done' regardless of circumstances or suggests that for a certain amount of money, he can fix the problem or "make it go away".
All due diligence investigations conducted by the Company will include an analysis of potential "red flag" issues. Investigations of potential "red flag" issues should be carefully documented and relevant documents, such as due diligence, questionnaires, reports, and compliance certificates, should be maintained by the Company Compliance Officer or his or her designee.
On Monday, we will examine contractual language to consider when contracting with approved Agents and Partners. Stay tuned.
Mary Shaddock Jones has practiced law for 25 years in Texas and Louisiana primarily in the international marine and oil service industries. She was of the first individuals in the United States to earn TRACE Anti-bribery Specialist Accreditation (TASA). She can be reached at msjones@msjllc.com or 337-513-0335. Her associate, Miller M. Flynt, assisted in the preparation of this series. He can be reached at mmflynt@msjllc.com.
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.
How to Influence FPCA Compliance as a Minority JV Partner
Filed under: Australia,Compliance Convergence,D&O Insurance,facebook,JGC Corporation,OSSTMM — tfoxlaw @ 4:17 am
Tags: best practices, compliance programs, DOJ, FCPA, HBR, JV
How does a company work towards achieving compliance with the Foreign Corrupt Practices Act (FCPA) in a Joint Venture (JV) or other business relationship where it holds less that 50% of the control? That question is often faced by US companies when they enter into a JV in many countries which require a majority of local ownership or even a 50-50 split in ownership. Some tactics that the compliance practitioner might employ were discussed in an article in the June issue of the Harvard Business Review, entitled, "The Perils of Partnering in Developing Markets", in which Johns Hopkins (Hopkins) Medicine International Chief Executive Officer (CEO) Steven J. Thompson wrote about his company's experience in partnering with a charity in Turkey to build and operate a "state-of-the-art medical facility."
While not directly discussed in the article it is certainly worth noting that in partnering to create hospitals overseas, Hopkins is always dealing with the FCPA as health care services generally and hospitals particularly are run by the foreign government in which the hospital is located. However, the problems Hopkins encountered and some of the solutions provide excellent insight into compliance challenges that a company might well face when it moves into a developing market. Thompson began by noting that as a non-profit Hopkins always takes a minority interest or none at all. This requires Hopkins to operate not as typical JV or other type of partner but "more like consultants with a broad range of responsibility and high level of authority." The other thing that I found quite interesting was that as a non-profit, the most important thing to Hopkins is its good name; in other words it is far more concerned about reputational damage than financial loss. Some of the key lessons learned were as follows.
Filling the Local Talent Gap
Even if the country's laws do not require that local persons be the entity's managers, most local partners insist upon it. Thompson has learned that fighting this "rarely pays out." Instead Hopkins seeks to team its advisors with the local executives, so that the advisors will have the ability to influence both "process and culture." Overtime, Hopkins has found that the top local managers cannot push as hard or as strongly for innovation and culture change so that the Hopkins team can begin to take over the top management functions.
A key component for long term success is training. This includes local training in all aspects of hospital management and financial operations. Additionally, Hopkins establishes a strong recruiting pipeline for bringing back to Baltimore, the home of Hopkins, so that they can be trained at and see how the facilities are run in the US.
When Best Practices Collide with Culture
In most medical treatment outside the US, the culture is such that a Doctors judgment is never questioned. This is quite different from the Hopkins experience in the US, where other providers of health care are empowered to challenge the decisions of senior physicians where a patient's health may be at risk. The Hopkins approach when "confronted with a culture clash is to determine whether we really need to challenge the culture." With this approach, Hopkins found that it could accomplish its goals, "within the cultural constraints" in which it operated. When it could not do so, it "seeded the staff with professionals who could lead by example" so that in the case of the culture of deference to Doctors whose authority was not challenged, senior nurses were brought in from countries where such a tradition did not exist. Once others saw that patient outcomes were steadily improved, "they began to come around and the culture of deference receded."
Mitigating Risk
In many ways, I found the Hopkins experience in mitigating risk to be the most interesting. Here Thompson said that the pre-agreement due diligence process, which he termed "choosing the right partner and learning to read the signs from up-front negotiations are critical", were two of the most critical factors. He identified factors such as foreign institutions which only desired short-term profit or were trying to capitalize on the Hopkins name as "anathema to success." He wrote that these factors can be ascertained through long conversations with potential partners about goals such as sustainable quality and commitment rather than on financial returns alone. Mimicking the requirements under the US Department of Justice's (DOJ's) minimum best practices compliance program, Hopkins requires strong contract language regarding the commitments made by any foreign partner. Lastly, if a relationship begins to sour or otherwise have problems, Hopkins is not afraid to rethink its position or even end the relationship after appropriate consideration. To help facilitate this from the legal perspective, Hopkins requires a "termination for convenience clause" in its contracts.
Another interesting aspect of the Hopkins approach was in the implicit use of risk assessment. Thompson included the below chart to illustrate "How Johns Hopkins Sizes Up International Risk". I found that these concepts speak to an on-going approach to risk assessment so that the process is continuous and therefore allows for continuous improvement.
Evaluating the Opportunity
Getting up to Speed
Operating Over Time
Assess the potential partner's willingness to commit resources. Engage experts to hire key personnel and to design processes. Stabilize processes and create feedback loops.
Assess regional constraints. Establish training and mentoring programs for local managers and professionals. Transfer more responsibilities to local managers.
Work with your local partner on a project plan and a business plan. Set up clinical, operations and financial performance metrics. Establish local education and recruitment pipelines.
Ensure that your local partner has a clear understanding of, and realistic expectations for the project. Establish quality, safety and efficiency processes. Establish regional marketing programs.
Set up a time for accreditation. Consider new initiatives and expansion.
If Trouble Arises
Thompson concluded is article with a list of action items that you can perform if there are signs of trouble. So, following McNulty's Maxim No. 3 of "What did you do to remedy it?", I list the following actions steps your company can take at three different stages of a JV relationship.
1. In the Evaluation Phase
If your concerns are modest, propose a smaller, several months-long pilot consulting project.
If your concerns are serious, you would walk away from the deal.
2. In the Start-Up Phase
Engage experts to hire the Key JV personnel and to design the appropriate processes.
Increase the number of ex-pat professionals involved in the JV.
Expand your support to local managers.
If warranted, revise strategic plans and consider replacing the onsite management.
If severe problems arise, consider scaling back or terminating the JV
3. As the Relationship Matures
Strengthen your training and mentorship.
Bring in subject matter experts (SMEs) to help solve defined problems.
Retool processes that may be falling short.
If required, reinstate key managers from your corporate headquarters or home office.
Freeze or reduce the scope of the JV's activities until problems are solved.
Set up problems solving forums with partners in other countries.
Many US companies have struggled with how influence partners to comply with the FCPA in JV relationships. The Hopkins experience has some excellent steps that your company can take in the pre-formation stage, during contract negotiation, in post-execution contract management and then as the relationship matures. The process that Hopkins follows is one that clearly allows you to use influence, rather than the brute force of the majority right of control. It is a very good road map for you to consider and one that management should take a close look at when managing any overseas relationship.
EFFECTIVE COMPLIANCE TRAINING
Filed under: facebook,FCPA,linkedin,twitter — tfoxlaw @ 1:20 pm
Tags: compliance, DOJ, Enron, ethics, ethics and compliance, FCPA, linkedin, Siemens, training, WrageBlog
"Conducting effective training programs" is listed in the 2005 Federal Sentencing Guidelines as one of the factors the Department of Justice will take into account when a company, accused of an FCPA violation, is being evaluated for a sentence reduction. The Sentencing Guidelines mandate states "(4) (A) The organization shall take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance and ethics program, to the individuals referred to in subdivision (B) by conducting effective training programs and otherwise disseminating information appropriate to such individuals' respective roles and responsibilities."
But what is an "effective training program"? Andrea Wrage has written in her blog Wragblog and Ethisphere Magazine that she believes there are two general approaches to ethics and compliance training. The first approach focuses on knowledge of the rules "as clear and sharp as barbed wire" so that the cowboys in the company will not run wild. This is the approach most US in-house lawyers feel is required for their company's operations teams and is generally designed to help avoid criminal liability.
The second is to train on ethical values and is more prevalent in Europe where ethics and compliance are more designed to communicate a company's underlying corporate values in its operations. This approach anticipates that most employees are decent and law-abiding and will not knowingly engage in bribery and corruption. Additionally, you can never create enough rules to govern every situation and train each employee on every rule so a company must hire trustworthy people and give them sufficient information to make the correct ethical and compliant decision. Ms. Wrage characterizes the two different approaches as "ethics" vs. "values".
Both approaches have merit but both can catastrophically fail without the other components of an effective compliance program. Although it was not brought down by an FCPA violation, the Enron Code of Ethics was viewed (at least at one time) as one of the strongest in the energy industry. And not to focus on US companies only, Siemens had one of the most robust Codes of Ethics for a European company before its multi-billion dollar (or euro-take your pick) fine and profit disgorgement. So the training on both of these company's "Gold Standard" codes of ethics did not turn out to be too helpful.
So what should a company's training focus on to be "effective" under the Sentencing Guidelines? It appears that effective ethics and compliance training should emphasize both approaches. Americans are long taught what the rules are in whatever life they choose. They expect to be told what the rules will be so that they know where the line is drawn that they should not step over. Probably the single comment I have heard the most when putting on ethics and compliance training in the US is "Just tell me what I can and can't do". However, really effective training requires that employees be able to apply the rules to the incredibly wide and ever-changing situations which confront them in the real world. This is where communicating a company's values are important. In other words, how would your conduct look if it was plastered on You Tube the next week?
This is the first of a two-part series on ethics and compliance training.
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.
Robert Kennedy, the Travel Act and the FCPA
Filed under: Control Component's Inc.,facebook,FCPA,linkedin,Travel Act,twitter — tfoxlaw @ 1:44 pm
Tags: CCI, Control Component's Inc., Department of Justice, DOJ, FCPA, FCPA Professor, FCPABlog, Robert Kennedy, Travel Act, US v. Mead, US v. Young and Rubicam
What does Robert Kennedy have to do with the Foreign Corrupt Practices and how has a nearly 50 year old statute aimed at US based organized crime now impacted the FCPA? It turns out quite a bit and perhaps it will be quite a bit more in significantly widening the scope of the FCPA.
Robert Kennedy's contribution is that while Attorney General, he urged Congress to enact the Travel Act in 1961 which was passed as part of the same series of bills as the Wire Act and was a part of his program to combat organized crime and racketeering. The Travel Act is aimed at prohibiting interstate travel or use of an interstate facility in aid of a racketeering or an unlawful business enterprise. It prohibits the use of communications and travel facilities to commit state or federal crimes, but until now was mostly known for its use in prosecutions for domestic crimes. Its impact to the FCPA is that the Travel Act applies to foreign as well as interstate commerce; it can be also used to prosecute those US companies and individuals which engage in bribery and corruption of foreign officials AND commercial bribery and corruption of private foreign citizens.
The Travel Act elements are: (1) use of a facility of foreign or interstate commerce (such as email, telephone, courier, personal travel); (2) with intent to promote, manage, establish, carry on, or distribute the proceeds of: (3) an activity that is a violation of state or federal bribery, extortion or arson laws, or a violation of the federal gambling, narcotics, money-laundering or RICO statutes. This means that, if in promoting or negotiating a private business deal in a foreign country, a sales agent in the United States or abroad offers and pays some substantial amount to his private foreign counterpart to influence his acceptance of the transaction, and such activity may a violation of the state law where the agent is doing business, the Justice Department may conclude that a violation of the Travel Act has occurred. For instance, in the state of Texas there is no minimum limit under its Commercial Bribery statute (Section 32.43, TX. Penal Code), which bans simply the agreement to confer a benefit which would influence the conduct of the individual in question to make a decision in favor of the party conferring the benefit. As noted below, the state of California bans payment of more than $1,000 between private parties for the purposes of influencing a business decision.
The Travel Act was most recently used when four executives of Control Components, Inc. ("CCI") were indicted on April 8, 2009 for alleged violations of the FCPA's anti-bribery provision and the Travel Act. According to the indictment, the defendants conspired to make hundreds of corrupt payments with the purpose of influencing the recipients to award contracts to CCI or skew technical specifications of competitive tenders in CCI's favor. The Travel Act came into play as the DOJ alleged the CCI employees violated or conspired to violate California's anti-bribery law (California Penal Code section 641.3), which bans corrupt payments anywhere of more than $1,000 between any two persons, including private commercial parties. In the indictments, the Travel Act charges relied on alleged violations of California's anti-corruption law.
On July 31, 2009, CCI itself pleaded guilty to substantive FCPA anti-bribery charges and to conspiring to violate both the FCPA and the Travel Act. CCI admitted that, between 2003 and 2007, its employees made more than 150 corrupt payments, totaling approximately $4.9 million, to officials of state-owned enterprises in China, Korea, Malaysia, and the United Arab Emirates, and paid $1.95 million in bribes to officers and employees of foreign and domestic private companies in violation of the Travel Act. CCI agreed to pay a criminal fine of $18.2 million and to retain an independent compliance monitor for three years.
In July 31, 2009 Press Release announcing CCI's guilty plea, the DOJ referenced the Company's private overseas bribery. It said:
According to the information and plea agreement, from 1998 through 2007, CCI violated the FCPA and the Travel Act by making corrupt payments to numerous officers and employees of state-owned and privately-owned customers around the world, including in China, Korea, Malaysia and the United Arab Emirates, for the purpose of obtaining or retaining business for CCI. Specifically, from 2003 through 2007, CCI paid approximately $4.9 million in bribes, in violation of the FCPA, to officials of various foreign state-owned companies and approximately $1.95 million in bribes, in violation of the Travel Act, to officers and employees of foreign and domestic privately-owned companies. [DOJ Press Release: http://www.justice.gov/criminal/pr/press_releases/2009/07/07-31-09control-guilty.pdf
The CCI matter was not the first case to use the Travel Act in conjunction with the FCPA. As reported in the FCPABlog, is the mater of U.S. v. David H. Mead and Frerik Pluimers, (Cr. 98-240-01) D.N.J., Trenton Div. 1998. In this case defendant Mead was convicted following a jury trial of conspiracy to violate the FCPA and the Travel Act (incorporating New Jersey's commercial bribery statute) and two counts each of substantive violations of the FCPA and the Travel Act. In its 2008 article entitled, "The Foreign Corrupt Practices Act: Walking the Fine Line of Compliance in China" the law firm of Jones, Day reported the case of United States v. Young & Rubicam, Inc., 741 F.Supp. 334 (D.Conn. 1990), where a Company and individual defendants pled guilty to FCPA and Travel Act violations and paid a $500,000 fine. In addition to the Mead and Young and Rubicam cases, the DOJ's website on "A Lay Person's Guide to the FCPA, specifically states that "other statutes such as the mail and wire fraud statutes, 18 U.S.C. § 1341, 1343, and the Travel Act, 18 U.S.C. § 1952, which provides for federal prosecution of violations of state commercial bribery statutes, may also apply…" to US companies doing business overseas. See: http://www.justice.gov/criminal/fraud/docs/dojdocb.html
What does this mean for US companies doing business overseas? The FCPA Professor and others have written extensively on the broadening of the definitions of who is a 'foreign official' and what is a 'state owned entity' under the FCPA. However with the incorporation of the Travel Act into FCPA prosecutions, these broad definitions may be completely blurred away if all foreign private citizens can be brought in under the FCPA by application of the Travel Act. US companies doing business overseas, which have a distinction in their FCPA compliance policies between gifts for and travel and entertainment of employees of private companies, and employees of state owned entities or foreign officials should immediately rethink this distinction in approach. The new decade is upon us the Kennedy-era statute of the Travel Act may become as relevant in overseas law enforcement in the 20-teens as it was in the domestic arena for the past 50 years.
UTStarcom and Gifts and Entertainment Under the FCPA
Tags: compliance, DOJ. Opinion Release, ethics, FCPA, FCPA Blog, FCPA compliance, FCPA Professor, gifts and business entertainment, SEC, UTStarcom Inc.
To close out the FCPA year, on December 31 the telecom equipment maker UTStarcom Inc. agreed to pay the Justice Department $1.5 million in criminal fines and pay the SEC an additional $1.5 in penalties to resolve Foreign Corrupt Practices Act violations in China and Thailand. Other FCPA penalties were agreed to by the company.
As reported in the FCPABlog and the FCPA Professor last week, UTStarcom is alleged to have engaged in conduct which violated the FCPA which included:
1. Arranging and paying for travel to popular tourist destinations in the United States, including Hawaii, Las Vegas and New York City, when such trips were recorded as training expenses at UTStarcom facilities. However UTStarcom had no facilities in these areas. These trips included a cash allowance of between $800 and $3,000 per person.
2. Spending nearly $7 million lavish gifts and all-expenses paid executive training programs in the U.S. for existing and potential foreign government customers in China and Thailand.
3. Presenting expensive gifts to and engaging in entertainment with government agents such as nearly $10,000 on French wine, as a gift to agents of a government customer and spending $13,000 on entertainment expenses for the same customer in an attempt to secure business.
4. Providing foreign government customers or their family members with work visas and purportedly hiring them to work for UTStarcom in the U.S., when in reality they did no work for UTStarcom.
5. UTStarcom was also alleged to have made payments to sham consultants in China and Mongolia while knowing that they would pay bribes to foreign government officials.
Guidelines for Gifts and Entertainment under the FCPA
The UTStarcom matter provides an opportunity to review the application of the FCPA to gifts and business entertainment expenditures to foreign officials. While gift and business entertainment is an area open to vagueness under the FCPA as there are no clear guidelines in the FCPA itself or the legislative history, the conduct of UTStarcom goes far beyond anything that has been previously approved or discussed in any DOJ Release Opinions. While prohibiting payment of any money or thing of value to foreign officials to obtain or retain business, the FCPA arguably permits incurring certain expenses on behalf of these same officials. Under the FCPA, the following affirmative defense regarding the payment of expenses exists:
[it] shall be an affirmative defense [that] the payment, gift, offer or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official, party, party official, or candidate and was directly related to…the promotion, demonstration, or explanation of products or services; or…the execution or performance of a contract with a foreign government or agency thereof. 15 U.S.C. § 78dd-1(c)(2)(A)-(B).
There is no de minimis provision. The presentation of a gift or business entertainment expense can constitute a violation of the FCPA if this is coupled with the corrupt intent to obtain or retain business. With the above in mind and DOJ Release Opinions, the following are suggested guidelines for gifts and business entertainment.
A. Gifts to Governmental Officials
Based upon the FCPA language and relevant Release Opinions (Opinions 81-01, 81-02 and 82-01), a Company can provide gifts up to an amount of value of $250. Below are the guidelines which the Release Opinions would suggest that a Compliance Policy incorporate regarding gifts:
• The gift should be provided as a token of esteem, courtesy or in return for hospitality.
• The gift should be of nominal value but in no case greater than $250.
• No gifts in cash.
• The gift shall be permitted under both local law and the guidelines of the employer/governmental agency.
• The gift should be a value which is customary for country involved and appropriate for the occasion.
• The gift should be for official use rather than personal use.
• The gift should showcase the company's products or contain the company logo.
• The gift should be presented openly with complete transparency.
• The expense for the gift should be correctly recorded on the company's books and records.
B. Business Entertainment of Governmental Officials
Based upon the FCPA language (there are no Release Opinions on this point), there appears to be a threshold that a Company can establish a value for business entertainment of up to the amount of $250. However this must be tempered with clear guidelines incorporated into the business expenditure component of a Compliance Policy, which should include the following:
• A reasonable balance must exist for bona fide business entertainment during an official business trip.
• All business entertainment expenses must be reasonable.
• The business entertainment expenses must be permitted under (1) local law and (2) customer guidelines.
• The business entertainment expense must be commensurate with local custom and practice.
• The business entertainment expense must avoid the appearance of impropriety.
• The business entertainment expense must be supported by appropriate documentation and properly recorded on the company's book and records.
C. Travel and Lodging for Governmental Officials
A Company should be able to bring foreign officials into the United States for legitimate business purposes. Once again, a key component is guidelines clearly articulated in a Compliance Policy. Based upon Releases Opinions 07-01 and 07-02, the following should be incorporated into a Compliance Policy regarding travel and lodging:
• Any reimburse for air fare will be for economy class.
• Do not select the particular officials who will travel. That decision will be made solely by the foreign government.
• Only host the designated officials and not their spouses or family members.
• Pay all costs directly to the service providers; in the event that an expense requires reimbursement, you may do so, up to a modest daily minimum (e.g., $35), upon presentation of a written receipt.
• Any souvenirs you provide the visiting officials should reflect its business and/or logo and would be of nominal value, e.g., shirts or tote bags.
• Apart from the expenses identified above, do not compensate the foreign government or the officials for their visit, do not fund, organize, or host any other entertainment, side trips, or leisure activities for the officials, or provide the officials with any stipend or spending money.
• The training costs and expenses will be only those necessary and reasonable to educate the visiting officials about the operation of your company.
The incorporation of these concepts into a Company's Compliance Policy is a good first step towards preventing any FCPA violations from arising, but it must be emphasized that they are only a first step. These guidelines must be coupled with active training of all personnel, not only on a Company's Compliance Policy, but also on the corporate and individual consequences that may arise if the FCPA is violated regarding gifts and entertainment. Lastly, it is imperative that all such gifts and entertainment by properly recorded, as required by the books and records component of the FCPA. One of the FCPA violations alleged against UTStarcom was that it falsely recorded these trips as 'training' expenses, while the true purpose for providing these trips was to obtain and retain lucrative telecommunications contracts. All business gifts, entertainment and expenses must be properly recorded.
2009-The Year of the Trial
Filed under: facebook,FCPA,linkedin,twitter — tfoxlaw @ 12:37 am
Tags: Department of Justice, DOJ, FCPA, FCPABlog, Foreign Corrupt Practices Act, Frederick Bourke, Gerald and Patricia Green, William Jefferson
2009 FCPA-The Year of the Trial
At the end of this year, many commentators have weighed in on the changes in enforcement under the Foreign Corrupt Practices Act (FCPA) over the past decade or the catastrophic increase in fines and disgorgement of profits over the past year. I believe that in the FCPA world 2009 will be remembered as the Year of the Trial. Here is a summary of the three FCPA enforcement actions which went to a full jury verdict this year and their outcomes.
A. Frederick Bourke
The first of the convictions was delivered on July 10, 2009, when Frederic Bourke was convicted of conspiring to violate the Foreign Corrupt Practices Act; the Travel Act and lying to FBI agents. The jury found that he invested in Czech-born promoter Viktor Kozeny's unsuccessful attempt in 1998 to gain control of Azerbaijan's state oil company, State Oil Company of the Azerbaijan Republic (SOCAR), despite knowing Kozeny planned to bribe Azeri leaders.
In its Press Release, the Department of Justice (DOJ) stated that evidence was presented at trial established that Bourke was a knowing participant in a scheme to bribe senior government officials in Azerbaijan with several hundred million dollars in shares of stock, cash, and other gifts. These bribes were meant to ensure that those officials would privatize SOCAR in a rigged auction that only Bourke, fugitive Czech investor Viktor Kozeny and members of their investment consortium could win, to their massive profit. [DOJ Press Release can be found at http://www.justice.gov/opa/pr/2009/July/09-crm-677.html%5D
On November 12, Bourke was sentenced by the trial judge, Shira Scheindin to a sentence of 'a year and a day', followed by three years of probation and a $1,000,000 fine. The government had sought a sentence of 10 years as" a deterrence to others". At the Sentencing Hearing Judge Scheindin is reported to have said: "After years of supervising this case, it's still not entirely clear to me whether Mr. Bourke is a victim or a crook or a little bit of both."
B. William Jefferson
On August 5, former nine-term congressman William Jefferson was convicted on 11 of 16 corruption charges. As reported in the FCPABlog, Jefferson was acquitted on Count 11 of the indictment — the only substantive FCPA charge he faced. But the jury convicted him on Count 1; which alleged three separate illegal conspiracies — to solicit bribes, deprive citizens of honest services and violate the FCPA. The jury's verdict form did not require it to specify which of the three illegal conspiracies the panel believed he engaged in so Jefferson's conviction on Count 1 may or may not have included a finding that he conspired to violate the FCPA. [DOJ Press release can be found at http://washingtondc.fbi.gov/dojpressrel/pressrel09/wfo111309b.htm ]
Jefferson was sentenced on November 14 to 13 years in prison by Judge T.S. Ellis. It is not clear if Judge Ellis used the FCPA-related conspiracy element to calculate Jefferson's sentence as the jury acquitted Jefferson on the substantive FCPA charge but was convicted then on conspiracy to violate the FCPA. It may never be known. Jefferson is currently on bail pending his appeal. The DOJ had asked the trial judge for a sentence ranging from 27 to 33 years in prison.
C. Gerald and Patricia Green
The third FCPA related verdict was handed down on September 14, when Gerald Green and his wife Patricia were convicted of FCPA violations. According to the DOJ Press Release, during the period from 2002 through 2007, the Greens conspired with others to bribe the former governor of the Tourism Authority of Thailand (to the tune of $1.8MM) in order to acquire lucrative film festival contracts as well as other deals for the development of a Thai Privilege Card, a website, book, video, calendars and public relations services.
As reported in the FCPABlog on December 18, 2009, the Greens used different business entities, some with dummy addresses and telephone numbers, to hide how much they were receiving under the contracts. The jury found that Greens disguised the bribes as "sales commissions" and made the payments through foreign bank accounts of intermediaries in Singapore, the United Kingdom and Jersey, some in the name of the former governor's daughter and a friend. [DOJ Press Release can be found at http://www.usdoj.gov/opa/pr/2009/September/09-crm-952.html.%5D
Sentencing was originally scheduled for December 17; however it has been rescheduled to January 21, 2010. The Pre-Sentencing Report was filed on December 14, 2009 and now the Justice Department now wants Gerald Green, aged 76, sentenced to life in prison. In a December 14 court filing, prosecutors said although the Pre-Sentence Report recommended a downward departure under the federal sentencing guidelines and a sentence of about 20 to 25 years, Green's sentence should instead be enhanced. The DOJ alleged that Green was "the ring leader of the bribery plot" and said he "repeatedly and blatantly perjured himself" at his trial.
FCPA cases rarely go to trial. And even when they do, such trials rarely result in acquittals. There has not been an outright acquittal in an FCPA case since 1991. After this year, it may be that no individuals are willing to take their chances by putting their fate in front of a judge or jury for an FCPA charge. Why is it so difficult to win an FCPA case for an individual? I believe it comes down to two reasons.
The first reason relates to judges and the law. Trial judges and Courts of Appeal have not been friendly to technical legal arguments over the language of the FCPA. "What is a business nexus"; "who is a foreign official"; "what is obtaining or retaining business", or the invocation of a "local law defense" have not received favorable rulings from courts. The second reason relates to juries and the facts. Juries do not take well to the payment of bribes. No matter how these payments are described, such as payments of over $1 million to intermediaries by the Greens, $90,000 in cash stuffed in a freezer in the Jefferson case, or, as in the Bourke case as related by the Jury Foreman, "we thought he knew" that bribery and corruption were involved in the business deal in which he was a participant, to the tune of an $8 million investment, but equally importantly "he definitely should have known".
One of the first things one learns in law school is that "if the facts are against you argue the law" and "if the law is against you argue the facts". However, in FCPA cases, it appears that individual defendants cannot seem to argue either way as there has been no favorable law (legal) ruling which may form the basis of legal defenses AND all FCPA cases involve large amounts of cash or money, so that the facts always look bad. So the lesson from 2009 is that a defendant should be very careful in weighing the benefits vs. the risk of an FCPA criminal trial.
Elements Of An Effective Compliance Program
Filed under: facebook,FCPA,linkedin — tfoxlaw @ 6:40 pm
Tags: compliance, DOJ. Opinion Release, ethics, FCPA, FCPA Blog, FCPA compliance, Richard Cassin
In his excellent FCPA Blog, Richard Cassin has written about an effective compliance program. He notes that the purpose of an "effective compliance program" is to prevent and detect criminal conduct. In his listing his suggestions for what constitutes an "effective compliance program" Mr. Cassin based his guidance on the United States Federal Sentencing Guidelines. He suggested the following:
1. A Written Program. A company must have standards and procedures in place to prevent and detect criminal conduct.
2. Board Oversight. A public company's Board of Directors must be knowledgeable about the content and operation of the compliance program and must exercise reasonable oversight of its implementation and effectiveness.
3. Responsible Persons. One or more individuals among a company's high-level personnel must be assigned overall responsibility for the compliance program.
4. Operating and Reporting. One or more individuals must be delegated day-to-day operational responsibility for the compliance program. They must report periodically to high-level personnel on the effectiveness of the compliance program. The individuals must have adequate resources, appropriate authority, and direct access to the Board or Audit Committee.
5. Management's Record of Compliance. A company must use reasonable efforts not to hire or retain personnel who have substantial authority and whom a company knows or should know through the exercise of due diligence have engaged in illegal activities or other conduct inconsistent with an effective compliance program.
6. Communicating and Training. A company must take reasonable steps to communicate periodically and in a practical manner its standards and procedures, and other aspects of the compliance program, to directors, officers, executives, managers, employees and agents — by conducting effective training programs and otherwise disseminating information appropriate to the individuals' respective roles and responsibilities.
7. Monitoring and Evaluating; Anonymous Reporting. A company must take reasonable steps (a) to ensure that its compliance program is followed, including monitoring and auditing to detect criminal conduct, (b) to evaluate periodically the effectiveness of the compliance program and (c) to have and publicize a system, which may include mechanisms that allow for anonymity or confidentiality, whereby a company's employees and agents may report or seek guidance regarding potential or actual criminal conduct without fear of retaliation.
8. Consistent Enforcement — Incentives and Discipline. A company's compliance program must be promoted and enforced consistently throughout a company through appropriate (a) incentives to perform in accordance with the compliance program and (b) disciplinary measures for engaging in criminal conduct and for failing to take reasonable steps to prevent or detect criminal conduct.
9. The Right Response. After criminal conduct has been detected, a company must take reasonable steps to respond appropriately and to prevent further similar criminal conduct, including making any necessary modifications to a company's compliance program.
10. Assessing the Risk. A company must periodically assess the risk of criminal conduct and take appropriate steps to design, implement, or modify its compliance program to reduce the risk of criminal conduct identified through this process.
In the coming weeks, we will review each of these suggested guidelines and provide nuts and bolts recommendations for you to use in crafting your own effective compliance program.
DOJ Goes for KO with Gerald Green Sentencing
Tags: DOJ, entertainment industry, FCPA, FCPABlog, Gerald Green, Patricia Green
In September, 2009 Gerald Green and his wife Patricia were convicted of Foreign Corrupt Practices Act (FCPA) violations. According to the DOJ Press Release, from 2002 through 2007, the Greens conspired with others to bribe the former governor of the Tourism Authority of Thailand (to the tune of $1.8MM) in order to land lucrative film festival contracts as well as other deals for the development of a Thai Privilege Card, and for a website, book, video, calendars, and public relations services. As reported in the FCPABlog on December 18, 2009, the Greens used different business entities, some with dummy addresses and telephone numbers, to hide how much they were receiving under the contracts. The jury found that Greens disguised the bribes as "sales commissions" and made the payments through foreign bank accounts of intermediaries in Singapore, the United Kingdom and Jersey, some in the name of the former governor's daughter and a friend.
The Pre-Sentencing Report was filed on December 14, 2009 and now the Justice Department now wants Gerald Green, aged 76, sentenced to life in prison. In a December 14 court filing, prosecutors said although the pre-sentence report recommends a downward departure under the federal sentencing guidelines and a sentence of about 20 to 25 years, Green's sentence should instead be enhanced. The DOJ alleged that Green was the ring leader of the bribery plot, the DOJ said, and he "repeatedly and blatantly perjured himself" at his trial.
Both the convictions of Gerald Green and his wife Patricia, coupled with the Government's aggressive stance in sentencing make clear that 'business as usual' in overseas film work will no longer be tolerated. It should be noted that both convictions were not for "conscious avoidance" as with Frederick Bourke or conspiracy with no underlying action as with William Jefferson. The evidence in the Greens case was actual, old fashioned bribery.
The entertainment industry needs to understand that it can longer use agents/intermediaries to procure business. Further, formerly typical excessive gifts or lavish entertainment cannot be used to procure business. As many films are financed through overseas corporations for tax purposes, the potential of FCPA violations are substantially increased. In addition to the anti-bribery component of the FCPA, the Act also includes a books and records provision which requires that all payments must be properly accounted for and correctly classified. It can only be hoped that the entertainment industry sits up and takes notice that times indeed must change.
END OF GREASE PAYMENTS COMING
Tags: DOJ, facilitation payments, FCPA, grease payments, OECD, SEC, TRACE International, WrageBlog
As recently reported in WragBlog, the OECD announced a new recommendation at the OECD's celebration of "International Anti-Corruption Day" and the Tenth Anniversary of the "Entry into Force of the OECD Anti-Bribery Convention". This change relates to facilitation payments (aka "grease payments") which are legal under the Foreign Corrupt Practices Act (FCPA).
OECD Secretary-General Angel Gurría described these low-level payments, designed to expedite performance of a "routine government action" such as obtaining mail delivery, phone or power service, as "corrosive . . . particularly on sustainable economic development and the rule of law".
Facilitation payments, also known as "expediting payments" or "grease payments," are bribes paid to induce foreign officials to perform routine functions they are otherwise obligated to perform. Examples of such routine functions include issuing licenses or permits and installing telephone lines and other basic services. The only countries that permit facilitation payments are the United States, Canada, Australia, New Zealand and South Korea. Facilitation payments, however, are illegal in every country in which they are paid. They have come under increasing fire under the FCPA as inconsistent with the totality of US policy on anticorruption.
This change by the OECD brings the considerable problems associated with facilitation in the international business arena into keener focus. Just like large commercial bribes, grease payments abuse the public trust and corrode corporate governance. Treating them as anything other than outright bribery muddies the compliance waters and adds confusion where there should be clarity. This new stance by the OECD, coupled with the increased enforcement under the FCPA, may well bode the end of facilitation payments.
I. TRACE Facilitation Payments Benchmark Survey
In October, 2009, TRACE International published the results of its "Facilitation Payments Benchmark Survey". TRACE conducted a global survey with the following objectives: (1) to understand how facilitation payments are perceived in the international business community, including the level of risk they are deemed to pose and the compliance challenges they present; and (2) to map corporate policies on facilitation payments, including whether they are permitted and, if so, the types of safeguards corporations impose on their payment.
The results of the TRACE survey reveal a definitive move by corporations to ban facilitation payments, coupled with an awareness of the added risk and complexity presented by facilitation payments:
• 76% of survey respondents believe it is possible to do business successfully without making facilitation payments given sufficient management support and careful planning.
• Over 70% believe that employees of their company either never, or only rarely, make facilitation payments, even if their corporate policy permits facilitation payments.
• Over 93% revealed that their job would be easier, or at least no different, if facilitation payments were prohibited in every country.
• Nearly 44% reported that their corporations prohibit facilitation payments or simply do not address them because facilitation payments are prohibited together with other forms of bribery.
• Almost 60% of respondents reported that facilitation payments pose a medium to high risk of books and records violations or violations of other internal controls.
• Over 50% believe a company is moderately to highly likely to face a government investigation or prosecution related to facilitation payments in the country in which the company is headquartered.
II. Facilitation Payments under the FCPA
The original version of the FCPA, enacted in 1977, contained an exception for payments made to non-US officials who performed duties that were "essentially ministerial or clerical". In 1988 Congress responded by amending the FCPA under the Omnibus Trade and Competitiveness Act to clarify the scope of the FCPA's prohibitions on bribery, including the scope of permitted facilitation payments. An expanded definition of "routine governmental action" was included in the final version of the bill, reflecting the intent of Congress that the exceptions apply only to the performance of duties listed in the subcategories of the statute and actions of a similar nature. Congress also meant to make clear that "ordinarily and commonly performed actions", with respect to permits or licenses, would not include those governmental approvals involving an exercise of discretion by a government official where the actions are the functional equivalent of "obtaining or retaining business for, or with, or directing business to, any person".
The FCPA now contains an explicit exception to the bribery prohibition for any "facilitation or expediting payment to a foreign official, political party, or party official for the purpose of which is to expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official". "Routine government action" does not include any decision by a public official to award new business or continue existing business with a particular party. The statute lists examples of what is considered a "routine governmental action" including:
• obtaining permits, licenses, or other official documents to qualify a person to do business in a country;
• processing government papers, such as visas or work orders;
• providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or transit of goods across country;
• providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products from deterioration; and
• actions of a similar nature.
There is no monetary threshold for determining when a payment crosses the line between a facilitation payment and a bribe. The accounting provisions of the FCPA require that facilitation payments must be accurately reflected in an issuer's books and records, even if the payment itself is permissible under the anti-bribery provisions of the law
III. Risks associated with relying on the "facilitation payments" exception
Facilitation payments carry legal risks even if they are permitted under the anti-bribery laws of a particular country. In the US enforcement agencies have taken a narrow view of the exception and have successfully prosecuted FCPA violations stemming from payments that could arguably be considered permissible facilitation payments. Violations of the accounting and recordkeeping provisions of the FCPA are also more likely when a company makes facilitation payments. Abroad, countries are increasingly enforcing domestic bribery laws that prohibit such payments. Companies that allow facilitation payments face a slippery slope to educate their employees on the nuances of permissible payments in order to avoid prosecution for prohibited bribes.
A. US enforcement authorities construe the exception narrowly
Other than as discussed above, there is no definitive guidance on circumstances in which the facilitation payments exception applies. There may be less risk of enforcement by US authorities in cases involving bona fide facilitation payments that are made specifically for one of the purposes enumerated in the FCPA. However, companies still face the risk of at least facing a governmental inquiry to explain the circumstances surrounding the payments, possibly resulting in penalties based on an unanticipated restrictive interpretation of the exception.
B. Potential non-compliance with the FCPA's accounting and recordkeeping provisions
While the anti-bribery provisions of the FCPA permit facilitation payments, the accounting and recordkeeping provisions of the law nevertheless require companies making such payments to accurately record them in their books and records. Companies or individuals may be reluctant to properly record such payments, as it shows some semblance of impropriety and effectively creates a permanent record of a violation of local law. However, failure to properly record such expenditures may result in prosecution by the Securities and Exchange Commission (SEC) even if the underlying payments themselves are permissible. One example of prosecution resulting from the misreporting of seemingly permissible facilitation payments involves Triton Energy Corporation, which settled an investigation by the SEC involving multiple alleged FCPA violations, including the miss-recording of facilitation payments. An Indonesian subsidiary of the company had been making monthly payments, of approximately $1,000, to low-level employees of a state-owned oil company in order to assure the timely processing of monthly crude oil revenues. The SEC did not charge that these payments violated the anti-bribery provisions of the FCPA; however, these payments were miss-recorded in corporate books and therefore violated the FCPA's accounting and recordkeeping provisions. Triton Energy consented to an injunction against future violations of the FCPA and was fined $300,000.
C. Increased enforcement of non-US laws that do not recognize an exception for facilitation payments
While the FCPA and certain other national anti-bribery laws contain exceptions for facilitation payments, such payments typically are considered illegal in the country in which they are made; there is not any country in which facilitation payments to public officials of that country are permitted under the written law of the recipient's country. Accordingly, even if a particular facilitation payment qualifies for an exception of the FCPA, it, nevertheless, is likely to constitute a violation of local law – as well as under anti-bribery laws of other countries that also might apply simultaneously – and thus exposes the payer, his employer and/or related parties to prosecution in one or more jurisdictions. While enforcement to date in this area has been limited increased global attention to corruption makes future action more likely. Countries that are eager to be seen as combating corruption are prosecuting the payment of small bribes with greater frequency.
D. Corporate approaches to facilitation payments may exceed the legitimate scope and applicability of the exception
As demonstrated in the TRACE Benchmark Survey, businesses struggle with how to address the "facilitation payments" exception in their compliance policy and procedures, if the subject is covered at all. Businesses should be wary of allowing employees to decide on their own whether a particular payment is permissible. Unless such payments are barred completely or each payment is subject to pre-approval (which in many cases would be unrealistic (e.g., passport control)), there is always the risk that an employee, agent or other person whose actions may be attributed to the company will make a payment in reliance on the exception when in fact the exception does not apply. In addition, the temptation to improperly record otherwise permissible facilitation payments has been discussed above.
IV. End of facilitation payments?
The global business environment has changed even as the FCPA has remained static. In the absence of any legislative action to roll back the facilitation payment exception, the Department of Justice (DOJ) and the SEC plainly have set out to repeal it on a case-by-case basis. US companies should recognize the weakening of the argument supporting a facilitation payment exception and should develop compliance policies that do not permit any kind of grease payments. A policy that prohibits all payments (unless there is high level of legal and compliance approval) will relieve businesses of the compliance burden of differentiating between lawful and unlawful payments. From the point of view of the modern global corporation, a compliance regime that attempts to differentiate between "good" corrupt payments and "bad" corrupt payments will do more harm than good.
RISK-BASED DUE DILIGENCE FOR SUPPLY CHAIN VENDORS UNDER THE FCPA
Tags: compliance, DOJ. Opinion Release, ethics, FCPA, FCPA Blog, FCPA compliance, FSA, Scott Moritz
Quick, as the Compliance Professional within your organization, which department or group of your company spends the most money annually? Did Supply Chain immediately come to mind? Probably not. Now just as quickly, how much of your compliance efforts are focused on the Supply Chain within your organization? Other than perhaps financial due diligence, such as through Dun & Bradstreet or quality control through your QHSE group, the Supply Chain probably does not command your Compliance Department attention as do other types of third party business partners such as agents, distributors and joint venture partners. This may be coming to an end as most Compliance Professionals recognize that third parties which supply goods or services to a company should be scrutinized similarly to other third party business partners.
There are several methods that could be used to assess risk in the area of supply chain and vendors. The approach suggested by the UK's Financial Services Authority (FSA) in its settlement of the enforcement action against the insurance giant AON would refer "to an internationally accepted corruption perceptions index" such as is available through Transparency International or other recognized authority. The approach suggested by the Department of Justice, in Release Opinion 08-02 would provide categories of "High Risk, Medium Risk and Low Risk". Finally, writing in the FCPABlog, Scott Moritz of Daylight Forensic & Advisory LLC has suggested an approach that incorporates a variety of risk-assessment tools, including, "the strategic use of information technology, tracking and sorting the critical elements".
This commentary proposes an approach which would incorporate all three of the above cited analogous compliance areas into one risk-based assessment program for supply chain vendors. Based upon the assessed risk, an appropriate level of due diligence would then be required. The categories suggested are as follows:
1. High Risk Suppliers;
2. Low Risk Suppliers;
3. Nominal Risk Suppliers; and
4. Suppliers of General Goods and Products.
A. High-Risk Suppliers
A High-Risk Supplier is defined as a supplier which presents a higher level of compliance risk because of the presence of one or more of the following factors:
1. It is based in or supplies goods/services from a high risk country;
2. It has a reputation in the business community for questionable business practices or ethics; or
3. It has been convicted of, or is alleged to have been involved in, illegal conduct and has failed to undertake effective remedial actions.
B. Low-Risk Suppliers
A Low-Risk Supplier is defined as an individual or private entity located in a Low-Risk Country which:
1. Supplies goods or services in a Low-Risk Country;
2. Is based in a low risk country where the goods or services are delivered, it has no involvement with any foreign government, government entity, or Government Official; or
3. Is subject to the US FCPA and/or Sarbanes-Oxley compliance.
C. Minimal-Risk Suppliers
A Minimal-Risk Supplier is an individual or entity which provides goods or services that are non-specific to a particular job or assignment and the value of each transaction is USD $10,000 or less. These types of vendors include office and industrial suppliers, equipment leasing companies and such entities which supply such routinely used services.
D. Suppliers of General Goods and Products
A Supplier of General Goods and Products is an individual or entity which provides goods or services that are widely available to the general public and do not fall under the definition of Minimal-Risk Supplier. These types of vendors include transportation, food services and educational services providers.


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We offer a competitively priced delivery service to a wide array of postcode locations, check if we deliver to your area. Collection is available in person from our depots in Ballymoney or Ballyclare.
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Choosing the right topsoil for your garden will help your lawn, flowers, shrubs and plants thrive over the summer months. For decorative purposes you may want to add some garden bark to help achieve the finished look and help keep the weeds at bay.
If you are unsure of the quantity of garden topsoil you need to order, you can use our handy calculator for help.


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Using Earth Class Mail
Earth Class Mail Closed for the Holidays
Seattle Store Migration (Spring 2017)
Los Angeles Store Migration (Winter 2016)
San Francisco Store Migration (Summer 2016)
Mike Beck
Effective start of day Monday January 20, 2017 the operations currently being offered at the Los Angeles processing facility located at 8605 Santa Monica Blvd, Los Angeles, CA 90069 will be migrated to the Beaverton processing facility located at 9450 SW Gemini Drive, Beaverton, OR 97008.
In order to ensure a seamless migration of these operations, the following milestones will need to be achieved:
Friday January 6, 2017 will be the last day customers will be allowed to:
Request pickups at the Los Angeles facility.
Friday January 13, 2017 will be the last day customers will be allowed to:
Pickup mail items from the Los Angeles facility.
Process scheduled shipments from the Los Angeles facility.
After the close of business on Friday, January 20, 2017 the following actions will be taken:
All pending pickups for the Los Angeles facility will be cancelled.
All pending shipments from the Los Angeles facility will be updated to be shipped from the Beaverton processing facility after Monday January 23, 2016.
All mail items and packages will be securely transported to the Beaverton facility by Earth Class Mail team members.
All mail delivery to the Los Angeles facility will continue undisrupted.
All mail scans and shreds at the Los Angeles facility will continue undisrupted.
"I have mail items in storage at the Los Angeles facility that I don't want moved to Beaverton."
You can schedule and complete pickup of your items on or before Friday, January 6, 2017. Additionally, you can schedule a shipment to occur on or before Friday January 13, 2017.
"I have already scheduled a delivery from the Los Angeles facility after Friday January 13, 2016."
You can update your shipment request to be processed on or before Friday, January 13, 2017 or it will be updated to ship from our Beaverton, OR processing center.
"I receive mail at the Los Angeles facility."
Your mail delivery to the Los Angeles facility will continue to be received and processed by Earth Class Mail at our Beaverton facility, and your address will NOT change.
"I receive packages at the Los Angeles facility."
We will automatically reroute your packages to the Beaverton facility, and you can ship those packages anywhere you like. If you'd like to pick up those packages in person, we recommend shipping via Fedex to a Fedex facility in Los Angeles.
"I prefer to pick up my mail in person at the Los Angeles facility."
We're prepared to credit your account for one free shipment per month from Beaverton to a Fedex location in Los Angeles. Send us a note to support@earthclassmail.com after your shipment arrives and we'll credit your account.
"I prefer to use a Beaverton facility address to receive packages after the Los Angeles facility is migrated."
We are prepared to add the Beaverton facility address to your account at no additional charge. Send us a note to support@earthclassmail.com and we'll get you set up.
What addresses are available?
What do you do with mail that comes to a closed account?

redpajama_set_name: RedPajamaCommonCrawl


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General Michael V. Hayden (USAF Ret.) served as Director of the Central Intelligence Agency from 2006 to 2009 and was responsible for overseeing the collection of information concerning the plans, intentions and capabilities of America's adversaries, producing timely analysis for decision makers, and conducting covert operations to thwart terrorists and other enemies of the United States. Before becoming Director of the CIA, General Hayden served as the country's first Principal Deputy Director of National Intelligence – and was the highest-ranking intelligence officer in the armed forces. Earlier, he served as Commander of the Air Intelligence Agency, Director of the Joint Command and Control Warfare Center, Director of the National Security Agency from 1999 to 2005, and Chief of the Central Security Service. General Hayden graduated from Duquesne University with a bachelor's degree in history in 1967 and a master's degree in modern American history in 1969. He was a distinguished graduate of the university's ROTC program, and began his active military service in 1969. General Hayden is currently a principal at the Chertoff Group in Washington DC.
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Магурский () — национальный парк на юго-востоке Польши, вблизи границы со Словакией. Расположен на границе Малопольского и Подкарпатского воеводств.

Занимает большую часть верхней части бассейна реки Вислока. Парк был создан в 1995 году с площадью 199,62 км², однако впоследствии территория была уменьшена до 194,39 км². Рельеф парка представлен главным образом горным массивом Магура Вятковска с высшей точкой — горой Вяткова, высота которой составляет 847 м над уровнем моря. Другие горы включают: Магура (842 м), Велка-Гура (719 м) и Тысовым (713 м). Водные ресурсы представлены рекой Вислока и её притоками.

Лесом покрыты 95,3 % территории парка. В парке встречаются 135 видов птиц, включая орлов, филинов и аистов. Млекопитающие включают бурых медведей, рысей, лесных котов, волков, выдр и др. Водятся змеи и саламандры, а также огромное количество видов насекомых.

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Национальные парки Польши

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Easily the best museum in town, the Dubai Museum offers an ideal first stop on any tour of the city, and the perfect place to get up to speed with the history and traditional culture of this formerly isolated desert settlement.
The museum is housed in the crusty old Al Fahidi Fort, dating back to around 1800, which makes it far and away the oldest building in the city, with sturdy coral-and-gypsum walls and a pair of engagingly lopsided towers. Entrance is via the fort's courtyard, where a few old traditional wooden boats lie marooned next to an old-fashioned barasti (palm-thatch) hut – the sort of living conditions enjoyed by most Dubaians right up until the 1960s.
Head across the courtyard and downstairs to the museum's absorbing sequence of underground galleries, covering just about every aspect of the cultural, commercial and religious life of the city, complete with an atmospheric little alleyway full of old-fashioned shops, populated with some spookily realistic mannequins.


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Cannpal – Medical Cannabis For Pets
Posted byNeil May 1, 2019 December 13, 2021 Posted inblogs
Medical cannabis for pets?
Since Australia legalised medical cannabis in 2016, a number of interested companies have approached the topic as a business opportunity. In 2018, two years after legalisation, the Office of Drug Control had to hire more staff for the specific purpose of handling a barrage of applications from companies seeking licenses to conduct business in the medical cannabis market.
If that doesn't put things in perspective, consider the Australian medical market is currently valued at about $18 million. That figure is set to balloon into $1.2 billion by 2024, and $3 just four years after that, according to market intelligence firm Prohibition Partners.
Australia leads the Oceania region in the medical cannabis market. Source
But while most in the market are lured by the public's increased acceptance of cannabis products for both human recreational and medical use, there's another sector of the market that seems relatively untouched in Australia: The pet medical cannabis market. CannPal has zeroed in on this market here in Australia, and an interview with the CEO of the company, Layton Mills, puts things into perspective as for the CBD pet market.
However, the pet medical cannabis market seems a bit contradictory at first glance. After all, there has been news about some negative effects of cannabis on pets, thanks particularly to a phenomenon commonly referred to as pot-dog cases. Apparently, a number of pets have ended up in emergency veterinary rooms after accidentally consuming cannabis, with 1,800 of such cases in 2018 alone.
But in reality, it has mostly been agreed that cannabis has several medicinal properties that are beneficial to humans. Logic suggests these same benefits could apply to animals. In fact, most research into the effects of medicines on humans begin with animals, and so one can imagine the same benefits of cannabis apply to pets — albeit in different doses.
In fact, this emerging market is no fluke. In the United States in 2017, sales of CBD pet products hit $7 in just four states. That's almost half of what the current Australian medical cannabis market is.
Here, we ask CannPal's Layton Mills a range of questions regarding CannPal, the idea of cannabis-related treatments for animals, as well as the company's views on the current Australian cannabis policies in general, and more.
What do CannPal sell & what is your goal?
CannPal is an animal health company with a mission to provide pet owners and veterinarians with evidence-based, plant-derived therapeutic products to promote better health and well-being for animals. Our current focus is on the research and development of compounds derived from cannabis.
Our goal is to be the first animal health company to have a veterinary medicine approved by an animal health regulator to allow for legal sale through veterinarians. At present, it's Illegal in every major market for a veterinarian to sell cannabinoid-derived products to pet owners.
Our purpose is to improve the accessibility of cannabinoid-derived therapeutic products for pet owners — products that have been developed with robust manufacturing processes and tested to be safe and effective, which is a serious gap at the moment.
How much do CannPal treatments for pets cost?
CannPal is still in the research and development phase for its lead veterinary medicine products, and as such, is not currently selling treatments.
What proof is there of the efficacy of Cannabis for pets, when used in a medical context?
CannPal has completed studies in almost 60 dogs exploring various compounds in the cannabis plant, including THC (Tetrahydrocannabinol) and CBD (Cannabidiol). As part of those studies, the company has explored inflammatory biomarkers, gene expression on receptors associated with inflammation, and other markers associated with efficacy. CannPal has also just had two studies approved by independent ethics committees for commencement in the coming months.
One is a study consisting of 30 dogs with atopic dermatitis, and the other is a study consisting of 60 dogs with osteoarthritis. The Company hopes to share this research in the coming 12 months with one of those studies potentially leading to the approval of the first cannabinoid-derived animal therapeutic product for sale in Australia through veterinarians.
Regarding currently published signs of efficacy, a recent literature review attempted to address some of the current gaps in our knowledge as it relates to certain cannabinoid-derived products for pets. While there's been no FDA (the United States' Food and Drug Administration) approved research to date as a basis for the review, the researchers instead opted to evaluate anecdotal evidence and survey pet owners to see how they felt about the cannabinoid-derived products they were feeding their pets.
Many pet owners feel as though the potential benefits of CBD pet products outweigh the potential negatives. In addition, the statistics of the surveyed pet owners was very promising.
The study reported that nearly 93% of those sampled felt as though the CBD products that they were feeding their pets performed as well, or even better, than previous standard care medications and therapies to treat issues like arthritis, anxiety, cancer, and more. To be clear though, this is only anecdotal.
A more recent study looked at the efficacy of CBD products in treating osteoarthritic dogs in a controlled laboratory setting. The study revealed that CBD treatments were effective in significantly decreasing pain and increasing activity in dogs suffering from osteoarthritis. The Veterinary assessment showed that pet owners did not report any observable negative side effects.
What is CannPal's view of Australian Policy concerning the legality of Cannabis, including recreational Cannabis for Australians?
From a medical standpoint, CannPals view reflects that of veterinarians and doctors. Cannabinoids clearly have medicinal properties, but the plant and its compounds are very complex and there needs to be available research that can empower veterinarians to treat patients with a better understanding of dosages, safety margins, and therapeutic windows.
CannPal has seen first-hand, through research, how these cannabinoids can influence each other in efficacy as well as pharmacokinetics. This tells us that the ratio of cannabinoids is important, depending on the desired outcome. Unfortunately, animals can't provide the feedback that humans can (whether they've had too much, too little, or are responding well to more subjective conditions such as pain).
So our focus is on the safety of animals as well as providing a product that works for its intended claim with supporting evidence. This will allow veterinarians more agency when choosing products that are effective for the patients.
However we do feel that there are instances where the desired outcome might be more urgent such as palliative care and compassionate use, even for animals, where time isn't a luxury. And in these instances, there should be clearer legislation that extends to animals, which allows veterinarians to trial cannabis-derived products on a case-by- case basis. Currently, animals do not fall into the human patient access schemes and there is no legislation that allows veterinarians to treat animals therapeutically with any product containing a "drug of abuse" (THC).
This is where there needs to be more work. Amending legislation to remove cannabis as a "drug of abuse" at an international level will allow flexibility for each country to better amend current controlled substance legislation, to allow pathways such as compassionate use for animal health, while also making it easier to complete the necessary clinical trials required to empower medical practitioners to treat more generalized conditions.
From a recreational standpoint, I think there are too many variables to have a firm standpoint. The key take-away for me is that there is enough research that's been done to suggest that recreational cannabis has no worse of a safety profile and long term effects than alcohol, cigarettes, or certain prescription medicines.
However, as an example, it can't be ignored that cannabinoids can interact with other medications, and/or have psychotropic effects which can influence certain individuals (just as alcohol and prescription medicines can). Both of these examples suggest the need for a more complete understanding of the compounds in the plant.
What are the challenges of seeking endorsement for the effectiveness of a Cannabis-based treatment for pets? How does that influence what CannPal are doing?
The challenge is in providing influencers (veterinarians) the research required to get the "buy-in" that cannabinoids can be a really effective part of a multi-modal approach to treatment plans for animals. While CannPal has been able to effectively navigate the process for commencing research in Australia, we are limited in areas such as patient recruitment, due to the population limits of animals in Australia. And federally approved research in the United States using cannabinoids is extremely difficult to run, so the research can sometimes be time consuming in countries like Australia.
Also clearing the misconception that Cannabinoids can treat every disease. Cannabinoids don't need to entirely replace current treatments, but if veterinarians are able to reduce the use of NSAID's, Opiates and Steroids in treatment plans and include adjunctive therapies with better side effect profiles (such as cannabinoids) through an integrative and synergistic approach, it should result in a better outcome for the pet owner, the patient, and the vet/owner relationship.
The result of these challenges have influenced CannPal to focus on only the highest quality production and robust research to ensure that veterinarians are well equipped with information for treating patients by the time CannPal has its products available for sale (unless legislative changes allow earlier access before then).
What are the challenges of performing tests on animals with Cannabis treatments, when so little is known about the effectiveness of Cannabis treatments on humans?
Actually, there is quite a lot of evidence on the effectiveness of cannabis treatments, but what is lacking is evidence of "how" and "why" they are working. With over 100 cannabinoids now isolated from the plant, various receptors and numerous other phyto-compounds such as flavonoids and terpenes, it's difficult to develop "optimal" treatments. That is, what type of plant extract (isolated cannabinoids, or crude extracts) what ratios of cannabinoids, what type of cannabinoids, how much to take and when to take it.
CannPal is doing some very significant research in all the areas above and has the added advantage of seeing some of the research in humans, which allows us to "fill" some of the missing gaps when assessing research in dogs, and we feel we are able to significantly contribute to the scientific community's understanding of these compounds in all mammals.
What lessons do you believe Australia can learn from countries and US States which have legalized?
Just like anything, good legislation is the result of "early adopters" trialing what does and doesn't work and then adapting and being reactive. But the United States (US) may not be the best precedent to follow right now. The regulations are fragmented in each state, which is just causing more confusion and allowing this vacuum which is filled with unregulated and potentially dangerous products in the market place. This study is an example of what happens in an unregulated and confused marketplace.
But from Australia's point of view, first and foremost the government should focus on improving the access for medical practitioners to provide evidence-based cannabinoids for palliative care and serious illness, such as refractory disease where current treatments don't work.
Equal focus should be placed on very closely monitoring what is and isn't working in various US states and Canada and adopting/drafting legislation accordingly.
How can people reading this article who support the legalization of Cannabis for adult recreational use make their feelings known?
There are often periods open for the public to comment on draft pieces of legislation, and these are the forums where consumers should make their feelings known. Be aware of what's happening in your own country and keep yourself up to date on current policy. There is also no harm in directly contacting regulators, as the more pressure they face, the more inclined they are to take action. An example is CVS and Walgreens publicly stating they will be stocking CBD products, which is forcing the FDA and DEA (the US Drug Enforcement Agency) to review cannabidiol and hemp legislation more seriously.
CannPal's breakdown of CBD as pet treatment opens the already widespread applications of cannabis even more. With research-backed facts, CBD products become even more accepted by those in the medical community — an important sector to the question of cannabis products as therapeutic substances.
Even beyond that, restrictions on the recreational use of cannabis products only hinder more studies on the drug. In the meantime, as Mr. Mills points out, the public will continue recreational use of the drug regardless, while researchers and scientists will be held back in that area, creating a landscape where true knowledge is lacking while the use increases. The same concept applies to pets as to humans — research is necessary to gain full knowledge of the cannabis plants and its effects, and governments need to evolve with the times to make it easier to conduct such studies.
Food For Thought: Canada's Lessons on Cannabis Edibles
What are Cannabis Terpenes?


Have you tried to force close the Music app by double pressing Home and swiping up on all the App Preview tiles (including Apple Music) to close those apps. Once all apps are closed, restart your device and try to open Apple Music again. Restarting allows your system to clear any cached data and runs through a series of checks to ensure your iDevice is in working order.... So you close your laptop and stick it into your bag. It goes to sleep, saving battery power and giving it a chance to cool down while you travel. It goes to sleep, saving battery power and giving it a chance to cool down while you travel.
icon. Best answer by Airgetlam 11 October 2017, 19:05. I'm guessing that you have your music stored on the hard drive of the mac? Basically, you've told Sonos to "play music located in this location" and then removed the location from the network.... This application is used to prevent the computer from going to sleep without changing system settings. ATTENTION! Using your Mac with closed lid can lead to serious system heat problems!
14/02/2002 · anyone know how to set a powerbook g4 (under os10.1) to NOT sleep when you close the lid? i'd like to have itunes playing and the lid closed so i can use it in my car. i dunno but on my laptop (sorry but it's a dell laptop), u would just go under the power options and tell it to do nothing when the... You'll be able to power up your computer, play music, close the lid and the computer will still be working. The inconvenience is that you will have to remember to put the computer in standby, hibernation or power it off, closing the lid won't trigger any of those states.
How do you close your laptop but still have the music playing?
icon. Best answer by Airgetlam 11 October 2017, 19:05. I'm guessing that you have your music stored on the hard drive of the mac? Basically, you've told Sonos to "play music located in this location" and then removed the location from the network.
This application is used to prevent the computer from going to sleep without changing system settings. ATTENTION! Using your Mac with closed lid can lead to serious system heat problems!


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Album Pick
Hard Rock Heavy Metal
Sixes, Sevens & Nines
AllMusic Review by John Franck
Junkyard's 1991 sophomore release, Sixes, Sevens & Nines is head and shoulders above the band's self-titled debut. Unlike Junkyard, Sixes, Sevens & Nines benefits from a punchy Ed Stasium production and mix that captures the band in all its ragged glory. If Junkyard's sound wasn't defined on its freshman outing, the band veers into full-on Lynyrd Skynyrd/AC/DC territory on this baby. On the song front, the weak opening call to arms of "Back on the Streets" is followed by the Rose Tatooish "All the Time in the World." The aforementioned track neatly sums up Junkyard's sound in a 4:10 flurry: laid-back rhythm guitars à la Malcom Young, in-the-pocket drumming, and boogie-woogie keys. "Slippin' Away," a collaboration with master tunesmith Steve Earle (Earle also sings backup on two of the album's other tracks), showcases the band's gentler side. Although, its monster ballad intonation is evident, "Slippin' Away" never takes flight. With a better arrangement, the tune could have/should have become a classic for the band (à la "She Talks to Angels" by the Black Crowes). If "Nowhere to Run" is lackluster, the boogie-woogie of "Misery Loves Company is a classic homage to "Rocks Off" from Exile on Main Street. Although Junkyard held promise, the band would never reach a mass audience. Always solid but never all that compelling, the band would spontaneously combust shortly hereafter.
Back On the Streets
Chris Gates / David Roach
03:47 Amazon
All the Time In the World
Slippin' Away
Steve Earle / Chris Gates / David Roach
Nowhere To Go But Down
Throw It All Away
Clean the Dirt
Chris Gates / Mike Martt / David Roach
Lost In the City


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Religious Studies and Theology, Vol 40, No 1 (2021)
Home > Vol 40, No 1 (2021) > Fortin
Theology Giving Back: A (De)constructive Reading of Jacques Derrida's Phenomenology of the Gift
Jean-Pierre Fortin
This essay lays foundations for a postmodern theology of donation by supplementing Jacques Derrida's philosophy of the gift with Marcel Hénaff's analysis of ceremonial gift exchange, John Milbank's theology of reciprocal exchange and Hans Urs von Balthasar's Trinitarian kenotic theology. Derrida's philosophy of the gift provides normative criteria for the experience of transcendence within human conscious awareness. Hénaff and Milbank nuance and expand Derrida's theory of the gift by demonstrating the asymmetrical and open-ended character of human interactions. Balthasar's kenotic theology fleshes out Milbank's communal understanding of donation. Jesus Christ embodies the gift, empowering human beings to bear witness before God and one another as a community able to give and receive unconditional love.
DOI: 10.1558/rst.42151
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