While the Foreign Corrupt Practices Act (“FCPA”) is an extremely complex act, there are two common FCPA violations of which automotive companies with international operations should be particularly sensitive. We recently discussed the challenges associated with providing gifts, meals, and entertainment to customers. In this post, we discuss another common issue: using third-parties abroad.
FCPA violations are also frequently attributable to the practices of third-party agents. Accordingly, automotive companies should evaluate third-party contractors through a risk-based approach. In other words, an automotive company need not spend $200,000 on due diligence for a contract of the same value. Below are examples of the types of due diligence to consider when dealing with third-parties:
Under a risk-based approach, the automotive company should weigh the anticipated value of the contracts sought via a particular third-party versus the costs of due diligence and compliance efforts. So, when engaging a third-party agent to procure a $50,000 contract, background checks and contractual representations may be sufficient. However, if that same third-party agent procures a $1,000,000 contract, the automotive company’s contract with the third-party agent should require more elaborate due diligence, including a thorough background investigation, training, and annual certifications.
Even if an automotive company is unaware of a third-party’s wrongful conduct, that company could still face FCPA liability. The government may claim the automotive company turned a blind eye and therefore should be held accountable for the third-party’s actions. In past investigations and enforcement actions, prosecutors have pursued manufacturers that failed to identify “red flags,” such as the following:
Regardless, relationships with third-parties should be memorialized in writing and explicitly address the FCPA-related requirements. In addition, payment mechanisms should be transparent and traceable, and commissions/payments should be reasonable and customary.
Of course, FCPA analyses depend on specific facts and circumstances, but automotive companies should be mindful of the foregoing guidelines. And automotive companies should contact counsel when dealing with potential FCPA problems or designing compliance programs and materials.
We hope you enjoyed Dashboard Insights’ FCPA series, and in case you missed any of our posts, check out the links below.