FCPA CHINA TRIPLE PLAY

Posted in Bribery in China, Business Crisis Management, Crisis Communication Response, Crisis Communication Strategy, Crisis Communication Success Stories, Foreign Corrupt Practices, Las Vegas Sands, Microsoft Corp., Wall Street Journal on March 25th, 2013 by mnayor

The Las Vegas Sands. The Wall Street Journal. Microsoft Corporation. What could these three companies possibly have in common? Try China. Each is being investigated by the SEC and the Department of Justice for violations of the Foreign Corrupt Practices Act (FCPA).

 

Last year the Sands disclosed that it was being investigated. It received a subpoena from the SEC in February, 2011 and was advised that DOJ was investigating as well. Some allegations that have come to light are that Sheldon Adelson, the head of the Sands, instructed a top executive to pay about $700,000 in legal fees to aMacaulegislator whose law firm was outside counsel to the Sands. As a result of the government’s investigation the Sands authorized its independent Audit Committee to look into the matter and it recently released its preliminary report. The internal investigation is ongoing.

 

Also last year, the DOJ opened an investigation into allegations of bribery in Chinaby the Wall Street Journal. The WSJ also embarked on its own internal investigation which is close to finished.

 

Finally, a news story broke this week that Microsoft Corp. is being investigated as a result of allegations of potential bribery by employees in China (as well as inRomania and Italy). This is such a new story that Microsoft has not yet begun its investigation.

 

Three different stories with the same tag line, all within the month of March, 2013. So far it seems as if this is the year of the FCPA, even though, in fact, FCPA cases have declined over the last two years. All three of these investigations were prompted by whistleblowers of one type or another. How did each company react and which reaction would appear to best serve its corporate interests?

 

First, the Sands. To its credit the Audit Committee found that there was a likely violation of the books and records and internal controls provisions of the FCPA and this was reported in the Company’s form 10-K filed with the SEC. But the 10-K went on to say in a rather self-serving way that the Company has improved its practices with respect to books and records and internal controls. It also states that the preliminary findings do not have a material impact on the financial statements of the Company, do not warrant a restatement of previous financial statements and do not represent a material weakness in the Company’s internal controls over financial reporting as of December 31, 2012.

 

The Wall Street Journal investigation is part of a much larger DOJ criminal investigation into the News Corporation, WSJ’s parent company, related to revelations that its British newspapers hacked phones and bribed officials in order to obtain information for articles. As part of the overall internal investigation, the Chinese allegations were thoroughly reviewed. The WSJ found no evidence to support the claim or any impropriety, and maintains that the informant is most likely a government official seeking to disrupt or retaliate against the WSJ for reporting on Chinese leadership corruption.  It is not clear that DOJ has closed the matter.

 

Microsoft’s matter is new. But its response to the news report that it is being investigated was straight forward. It said that the matters raised were important and that allegations of bribery should be reviewed byU.S.agencies and its own compliance unit. A spokesperson said that allegations of this nature arise from time to time, that it is possible that sometimes an individual employee or business partner may violate the Company’s policies or break the law, and that its responsibility is to train its employees, build a system to prevent and detect violations, and to investigate allegations and take appropriate action.

 

What can we learn about crisis communication from these three stories. The Sands reaction leaves something to be desired. While it is admirable to admit that the company may have violated the law it is presumptuous and self-serving to draw conclusions that basically are up to the government. The SEC and DOJ may have a hard time swallowing the Sands’ conclusions. It would have been far better to state that it is cooperating with the agencies to resolve all issues and reach determinations that will not have far reaching consequences to the Company.

 

If we take the WSJ’s comments at face value, there is no reason not to aggressively maintain one’s innocence. Yet, it might have been better to acknowledge more clearly that DOJ had not yet signed off on the WSJ’s findings and that the WSJ was working with DOJ to conclude the matter. Instead in a buried paragraph in its own story it states that it is unclear whether the Justice Department considers the matter resolved or still open.

 

The Microsoft reaction is  the best. It is the most honest and direct and states the facts of corporate life: We know our responsibility. We do our very best. Occasionally, a bad apple may slip through. Crisis communication does require that a company assess and anticipate the concerns of stakeholders. Good judgment is needed to walk that fine line between allaying those concerns, and acting appropriately and respectfully to those who have control over the outcomes of your investigations.

 

 

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SOME COMPANIES GET IT

Posted in Crisis Communication Success Stories, Crisis Management Success Stories on March 25th, 2010 by admin
I just received a new credit card in the mail. This is not unusual in itself but it is from my current credit card company – Bank of America, not one of my favorite institutions if truth be told. What is remarkable is that it is a card to replace my existing one that is not nearing expiration.
A very nice letter accompanied the card explaining that since BofA suspected that my card’s security had been compromised, they were cancelling it and substituting this new card. All terms and conditions remained the same.
Here is a company that determined a potential problem and did something about it. Proactive. It had to have cost them to do it. A cynic may say, yes, but it could have cost them more if they hadn’t done anything. True, but oftentimes it is difficult for an organization to bite the bullet, rather than wait it out. Taking no action can be kind of comfortable. So regardless of whether BofA took action that was for its own benefit, kudos for stepping up. But wait, there’s more.
Responsible action must be contagious within BofA. They just announced publicly that they would be forgiving the mortgage debt of some distressed borrowers. Could this actually be? Only time will tell but again BofA has gone on the offensive and is looking good. It would be a mistake if this is nothing more than a hollow PR gambit but time will tell. If it is, the bank takes a huge risk that they will look untruthful undermining its precarious public perception even more.
There have been a couple of other crisis management initiatives that have come to my attention that I think warrant applause. My own hometown was hit by a severe Nor’easter a couple of weeks ago. Trees were down everywhere. Many main and secondary roads were impassable (including mine – I couldn’t drive out of my street due to a fallen tree across the road). And over one-half of all homes in town were without electricity.
I’ve lived in the same house in the same town for over twenty years. Electric power delivery has always been dicey. Early on I lost electricity several times and finally, fed up, I wrote to the local newspaper complaining that I had moved from a third world country that had better electric power delivery than I was now receiving. Over the years some of the transformers and other gizmos have been updated and service has been acceptable, if not perfect. When the storm hit I shuddered to think what we were in for. But Connecticut Light & Power went to work. Crews were imported from other states. Every household was given updated Code Red alerts via the town’s emergency network, CL&P kept information flowing regularly and even went out on a limb and stated that 99% of the power would be restored by a certain date and hour. At the time, this forecast seemed far-fetched given the amount of damage and clean-up necessary just to get access to the wires. Yet, they did it! The company made an extraordinary effort, kept the public informed and, in my eyes at least, achieved a reputation as a first class public utility. I have only one suggestion. It would have been helpful for citizens to know what areas of town were scheduled for work on what days, and times, so homeowners could plan ahead, remove stuff from their freezers, get a hotel room etc. Barring that, nice job CL&P.
I received a rather personal letter from my cable company. Strange. I always get solicitations for the Triple Play – Internet, TV and telephone, but no, this was a kind of apology. The company thanked me for being a customer! They said they were sorry for inconveniencing me while they argued over programming fees with certain networks. They said they were sorry that there were interruptions in providing the Food Network, HGTV, and ABC (for the first 45 minutes of the Oscar presentations). Of course, they blamed everything on the greedy networks for trying to gauge the cable company instead of attempting to reduce costs, but hey, everyone has a different perspective. The thing is that the cable company tried to explain its side and did a credible job of it.
So congratulations to BofA, CL&P, and Cablevision for recognizing a crisis, handling it competently, and communicating to their respective stakeholders in a manner that has been straight-forward and not particularly self-serving, although self-serving communication, when deserved, is just fine.
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