It is finally done. The long awaited Avon Foreign Corrupt Practices Act (FCPA) enforcement action is on the books. I would say what a long, strange trip it has been but that does not really seem to capture everything that went on in this case. Before we only knew such things as a whistleblower contacting the Chief Executive Officer (CEO) of the company with allegations of bribery in the company’s China business unit, to the Head of Internal Audit being caught up directly in the scandal, put on administrative leave and then terminated; to a professional fee burn rate on the case which would rival the Gross National Product (GNP) of many countries; to Grand Jury subpoenas being issued (or threatened to be issued) to corporate executives to secure their testimony in criminal proceedings; to publicly negotiating with the Department of Justice (DOJ) and Securities and Exchange Commission (SEC); we all thought this FCPA matter had it all. But it turns out just how little we knew about the company’s conduct and just how bad it was which led to this settlement because to say it was bad would demean and belittle the word bad. So over the next few blog posts, I will be exploring Avon, its conduct and the FCPA enforcement action.

For the Record

The amount of the total fines and penalties was $135 million. As noted by the FCPA Professor, “the settlement is the third-largest ever against a U.S. company.” The enforcement action included several resolution vehicles, including a Criminal Information against Avon China resolved via a Plea Agreement; a Criminal Information against Avon Products resolved via a Deferred Prosecution Agreement (DPA) with an aggregate fine amount of $67.6MM. There was a separate SEC resolution through a Civil Complaint against Avon Products, which it agreed to resolve without admitting or denying the allegations through payment. The amount of the SEC settlement was $67.4MM. While the company’s internal investigation began in China, it quickly expanded so that it went far beyond China, including Japan, Argentina, Brazil, India and Mexico.

How Did We Get Here?

It all began back in May 2008, when an employee from Avon’s China business unit sent a letter to the head of the company alleging the China entity had engaged in bribery and corruption. In October 2008, Avon reported, in a Statement of Voluntary Disclosure, that it was investigating an internally reported allegation by an undisclosed whistleblower that corrupt payments had been made in its China operations. These allegations claimed that certain travel, entertainment and other expenses might have been improperly incurred. Although the details of the Avon case have not been disclosed, direct selling was not allowed in China under a law passed in 1998. The National Review reported that Avon was able to secure permission in late 2005 to begin direct selling on a limited basis. Later the Chinese government issued direct-selling regulations and granted Avon a broader license in February 2006 to make such sales.

In its 2009 Annual Report, Avon noted that the internal investigation and compliance reviews, which started in China, had now expanded to its operations in at least 12 other countries and was focusing on reviewing “certain expenses and books and records processes, including, but not limited to, travel, entertainment, gifts, and payments to third-party agents and others, in connection with our business dealings, directly or indirectly, with foreign governments and their employees”. The FCPA Professor, citing the Wall Street Journal (WSJ), reported that Avon suspended four employees, including the President, Chief Financial Officer (CFO) and top government affairs executive of Avon’s China unit as well as a senior executive in New York who was Avon’s head of Internal Audit.

One of the significant pieces of information to come out of the Avon matter is the related costs. As reported in the 2009 Annual Report the following costs were incurred and were anticipated to be incurred in 2010:

Marketwatch also reported that after these investigations were made public Avon’s stock prices fell by 8%. Lastly, in addition to the above direct and anticipated costs and drop in stock value, the ratings agency Fitch speculated about the possibility of a drop in Avon’s credit ratings. But as bad as these numbers appear they only got worse for Avon as by 2012 its spend on professional fees was estimated to be over $247MM. As of this date, the total professional fees are closer to $300MM.

Grand Jury Investigation and Terminations

The WSJ reported in February 2012 that the DOJ had gone to a grand jury with evidence of FCPA violations against US executives at Avon. Joe Palazzolo and Emily Glazer reported that several company employees were terminated for their role in the scandal. They wrote, “The company said it fired Vice Chairman Charles Cramb on Jan. 29 [2012] in connection with the overseas corruption probe and another investigation into allegedly improper disclosure of financial information to analysts. Mr. Cramb couldn’t be reached for comment. In May [2011], Avon said it fired Ian Rossetter, its former head of global internal audit and security and previously Avon’s head of finance in Asia. Mr. Rossetter didn’t respond to requests for comment and his attorney declined to comment. Bennett Gallina, a senior vice president responsible for the company’s operations outside the U.S. and Latin America, left Avon in February 2011, two days after being put on leave in connection with the internal corruption investigation, the company said at the time.”

Negotiating in Public

I do not know who was advising Avon but the decision to try and force the government’s hand by making public its negotiating position was one of the most bone-headed moves I have seen a similarly situated company make. Avon initially announced that it had opened negotiations with the US government over the terms of a resolution in August 2012. In mid 2013, the FCPA Blog reported that Avon low-balled the SEC with an opening offer of $12MM. Later, in 2013, the company reported in an SEC filing that the “Securities and Exchange Commission offered an FCPA settlement last month with monetary penalties that were ‘significantly greater’ than the $12 million the company had offered.” But not to take such government tactics sitting down, Avon publicly announced in the filing that “Monetary penalties at the level proposed by the SEC staff are not warranted.” That certainly was great information to put out to the public enforcing that you are taking a hardball approach with the SEC and telling them their fines and penalties are not deserved for a company that has gone through all Avon has during this FCPA journey.

As I said, this matter was a long strange journey but as strange as things were that we knew about before last week, they became much stranger. Tomorrow we take a look at the facts that came out through the settlement documents to see the nefariousness of Avon’s conduct.