April 22, 2009
We asked in-house counsel and compliance officers to provide examples of issues that arose during in-person training that might not have been uncovered through any other form of training. Most of the examples involved very specific questions about the scope of a definition: is an employee of a partly-state-owned entity a government official? Do gifts provided publicly at contract signing events, after the business has been awarded, need to be scrutinized for FCPA implications?
What follows is another example, provided by Vince O’Connor, Vice President for FCPA Compliance at L-3 Communications Corporation.
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“When I was appointed as the Compliance and Ethics officer, one of the many goals set for me was to train all “gatekeepers” (those involved in foreign activities) on the FCPA. One issue arose repeatedly. When it came to defining international consultants there was some confusion as to whether a U.S. company located in the U.S. should be considered an “International Consultant”. This is true in spite of the fact that our Policy states that an International Consultant is: “A person, partnership, association, corporation or other organization located in the United States or abroad, that is retained by the company to provide professional or technical advice relating to the international sale of the company’s products and services, to provide professional or technical advice relating to investments made by L-3 abroad, or to otherwise interact with foreign governments, political parties or foreign candidates for political office on behalf of the company.”
One employee asked during training about a consultant that advised his team on how to conduct business in several foreign countries. When asked if the consultant ever traveled on behalf of the company to foreign locations the answer was “yes”. When questioned further it turned out that the consultant frequently traveled to foreign countries with senior company officials and the visits included meetings with foreign government officials. Because the consultant was with a company official, the employee did not consider the consultant to be acting on behalf of the company. One of the many dangers in this analysis is that the consultant may go back to the same foreign official without a Company official present, creating an impression that the consultant is representing the Company. In fact, his very presence at the initial meeting may be sufficient for the government official to consider him a spokesman for the Company.
This issue, which represents a possible gap in an otherwise robust compliance program, would not have come to my attention if the employees in question hadn’t had a chance to ask their questions in a live training forum.”