Corporate Anticorruption Compliance by the Numbers
Summer has come to a close without the promised beach reading from the U.S. Department of Justice and Securities and Exchange Commission: updated guidance on the U.S. Foreign Corrupt Practices Act. Corporate counsel seeking detailed anticorruption rules are left with the compliance guidance set forth in (1) the federal sentencing guidelines, (2) the Organization for Economic Cooperation and Development guidance, (3) the UK Bribery Act adequate procedures guidance, and (4) remedial compliance language in FCPA deferred and non-prosecution agreements.
The FCPA requires issuers to maintain adequate books and records and makes it unlawful to offer, promise, or pay anything of value to a foreign government official (including employees of state-controlled organizations) in order to obtain an improper business advantage. It does not outline the key elements of policies addressing petty cash, travel for non-company personnel, gifts, entertainment, or other topics that are the focus of any robust anticorruption compliance program. Nor do the sentencing guidelines, OECD guidance, or any of the other government sources. Without the long-promised revised guidance, corporate counsel often struggle with nuanced questions, such as the proper amount that an employee may spend at dinner with a government official as part of a bona fide business expense or the proper stance on facilitation payments.
Most companies with international operations have detailed policies to address these risk areas, but benchmarking is difficult. A look at some empirical data captured in the Fortune 500 companies' codes of conduct provides some answers on how companies in different industries are addressing corruption risk. Of the 356 Fortune 500 companies that address anticorruption in their codes of conduct, we found that different companies follow different standards for a wide range of policies. And some companies' codes do a more thorough job of setting forth complete and effective FCPA compliance policies.
Of the Fortune 500 codes of conduct we reviewed, only 17 companies have separate, standalone, publicly available FCPA policies. The other 339 companies that publicly address the FCPA on their websites do so only as part of the general code of conduct. The approaches in these codes often could not be more different. For instance, only 33 percent mention the FCPA's accounting requirements.
There are two variations we found particularly interesting.
First, most Fortune 500 companies do not address facilitation payments in their codes of conduct. Facilitation payments are small payments to secure performance of non-discretionary, routine governmental actions such as stamping passports. These payments are not illegal under the FCPA. Of the 116 companies that address these payments in their codes, most companies75allow the payments, with varying degrees of approval required.
After the 2010 UK Bribery Act, which, unlike the FCPA, did not recognize the payments as an exception to liability, many companies reevaluated whether to revise their corporate policies. Indeed, many countries do not allow such payments. The Bribery Act guidance made clear that in certain circumstances these payments may not warrant prosecution. But companies are still debating the correct approach. As of 2011, only a minority of Fortune 500 companies19prohibit these payments altogether. And 22 companies strongly discourage facilitation payments.
Second, virtually every company addresses gifts and entertainment generally in some way, although the codes of conduct typically do not provide FCPA-specific gift and entertainment limitations. This is perhaps one of the most frequently encountered issues for compliance officers as companies seek to strike the proper balance between conflicts of interest and corruption concerns and appropriate business development. Most Fortune 500 companies do not provide specific monetary limitations for gifts and entertainment, but around 11 percent provide limits for entertainment and approximately 33 percent set monetary limits on gifts.
Of the policies that give a specific monetary limit for gifts:
- 65.1 percent have gift limits of $100 or less
- 25.3 percent have gift limits between $101-$250
- 8.9 percent have gift limits between $251-$500
- 0.7 percent have gift limits between $501-$1000
Of the policies that give a specific monetary limit for entertainment:
- 36.7 percent have entertainment limits of $100 or less
- 46.9 percent have entertainment limits between $101-$250
- 12.2 percent have entertainment limits between $251-$500
- 4.1 percent have entertainment limits between $501-$1000
The policies that do not give a specific monetary gift or entertainment limit typically require that gifts and entertainment be of nominal or modest value, reasonable and customary, or not excessive in value.
The government may not tell us how to address anticorruption compliance risk before the 2012 election. But, by gathering empirical data and benchmarking, companies can evaluate their policies and approach in the context of their peer firms and ensure their policies reflect a reasoned, risk-based approach.
Ryan McConnell is a partner in Baker & McKenzie LLP in Houston and former Assistant U.S. Attorney. Jay Martin is vice president, deputy general counsel, and chief compliance officer at Baker Hughes, Inc. Paula Bonavides is a third-year law student at the University of Houston Law Center.
See also: "Cracking the Code of a Good Corporate Code of Conduct," CorpCounsel, June 2012.