If I told you that the last seven batting titles were won by baseball players who were originally from Venezuela, would you immediately run down to ICE and claim that our national pastime had been overrun by Venezuelan immigrants who were taking jobs away from Americans? Might you consider what exists in the Venezuelan water which made their baseball players so much better than US players? Now add to this equation that the last seven AL batting titles were won by two individuals; Houston Astro Jose Altuve and Detroit Tiger Miguel Cabrera. What do those numbers tell you, if anything other than Altuve and Cabrera are pretty good hitters?

I thought about this hitter’s anomaly when late last week we saw the release of the Alere Inc. (Alere) Securities and Exchange Commission (SEC) enforcement action which contained a Foreign Corrupt Practices Act (FCPA) component as well as penalties related to the company’s failures around revenue recognition. Alere comes on the heels of the biggest FCPA enforcement action of all-time for Telia Company AB (Telia). Alere agreed to pay more than $13MM to settle charges that it bribed foreign officials and committed accounting fraud to meet revenue targets. Of that $13MM, the company agreed to disgorge $3.3MM, interest of about $495,000 and pay a penalty of $9.2MM. It was at the opposite end of a spectrum from the Telia settlement of $965MM.

Alere is a Massachusetts-based medical manufacturer. The SEC issued an order finding that the South Korean subsidiary of Alere Inc., which produced and sold diagnostic testing equipment, improperly inflated revenues by prematurely recording sales for products that were still being stored at warehouses or otherwise not yet delivered to the customers or company’s distributors.

According to the SEC’s order, Alere also engaged in improper revenue recognition practices at several other subsidiaries. These actions occurred from 2010 to 2015. The SEC order stated these actions were “intentional”. Further, the company also failed to conform to GAAP from 2013 to 2016 through a practice called “postponement of delivery” where “customers agreed not to take delivery and submitted a “Declaration of Postponement” form” to the company’s Chinese subsidiary. This same type of accounting fraud scheme was used again with the company’s African distributors where “Alere retained title to the product until it was paid in full by the distributor”.

The company miscalculated its taxes due and made material misstatements on its financial returns. This led to a restatement of financials. All of this led the SEC to find there was a lack of effective internal controls over financials at the company. But this lack of effective controls was not simply limited to financial internal controls, it also extended to compliance internal controls.

In Colombia, the company purchased a private distributor, BioSystems, of its products and made it a corporate subsidiary, Alere Colombia. After the purchase, Alere Colombia “made improper payments totaling approximately $275,000 to the Customer EPS Manager in order to obtain and retain business from the Customer EPS. The payments began at least six months before Alere acquired Biosystems. Biosystems disguised these improper payments as payments for purported consulting services from the Customer EPS Manager’s husband, sister-in-law, and friend. In fact, none of the recipients of these improper payments performed legitimate consulting services for Biosystems sufficient to justify the amount of payments received.”

In India, the company’s subsidiary was told by its Indian distributor that it would be required to make a 4% commission payment to government officials to win contracts. This corrupt payment was approved by the company’s Vice President (VP) of Marketing and Sales and the payment was affected. The SEC Press Release stated, “Alere subsidiaries in India and Colombia obtained or retained business by using distributors or consultants to make improper payments to officials of government agencies or entities under government control. Alere failed to maintain adequate internal controls to prevent the payments, and the company inaccurately recorded the payments in its books and records.” Most ominously, when the company discovered the illegal payments, it kept the profits it made.

There are several lessons to be garnered in the Alere FCPA enforcement action. First is the increasing interplay of revenue recognition and compliance programs. There will no doubt be more overlap under the new revenue recognition rules which become effective in December. It is unsurprising that a company which would play fast and loose with such basic revenue recognition rules as payments to distributors and hold backs by customers would also do the same around illegal bribery schemes. Further the lack of effective financial internal controls may well be some indicia of the lack of effective compliance controls. The SEC might do well to investigate such situations more often.

Also, it points up once again the need to perform thorough pre-acquisition due diligence prior to the time a company purchases an entity and then move to integrate, perform a forensic FCPA audit and remediate a target after the purchase. Once again, if a company was engaging in bribery and corruption before you purchase them and they continue to do so after you purchase them, it is now you who are engaging in bribery and corruption, not them.

The Alere FCPA enforcement action also points to an issue I have been considering for some time. It is the type of FCPA enforcement action involved in many cases. There has not yet been a resolution of the Department of Justice (DOJ) investigation into Alere so there may well be criminal charges brought or some other type of DOJ resolution. Yet when you contrast Alere with Telia one is struck by both the quantitative and qualitative difference in the enforcement actions. It is if there is almost a spectrum of FCPA enforcement actions leading down a chain. The SEC resolution with Alere could almost be seen as an administrative resolution which the SEC is well-suited to provide. Perhaps this could be a model for a more regulatory approach to FCPA enforcement going forward.

Of course, that would depend on whether a company was corrupt, literally right up to the very top as was Telia.