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Publication
Keeping your dawn raid guidance current
Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
Publication | September 2016
On September 20, 2016, Nu Skin Enterprises, Inc. (Nu Skin) paid US$765,688 to settle allegations by the US Securities and Exchange Commission (SEC) that Nu Skin violated the accounting provisions of the US Foreign Corrupt Practices Act (FCPA) in connection with a charitable donation.1 Specifically, the conduct relates to payments made by Nu Skin’s Chinese subsidiary, Nu Skin (China) Daily Use And Health Products Co. Ltd. (Nu Skin China) to a charity tied to a high ranking official in the Chinese Communist party.2 Nu Skin China allegedly made the payment in an effort to end an investigation by the Chinese Administration for Industry and Commerce (AIC) into Nu Skin China’s marketing and sales practices. The resolution underscores the importance of caution and diligence in making charitable donations in foreign countries.
The AIC had been investigating whether Nu Skin China had been conducting business activities in a particular city without the necessary licenses. In an effort to influence the AIC’s investigation, a Nu Skin China employee contacted the Communist party official, who was also the former boss of the head of the AIC branch investigating Nu Skin China, and requested the name of a charity to which Nu Skin China could donate. The official suggested a charity that was created by an entity with which the official was previously associated.
After the discussion with the official, the AIC informed Nu Skin China that there was enough evidence to file charges that would result in a fine of RMB2.8 million (approximately US$431,088). Nu Skin China offered to “donate some money instead of [paying] a fine” to avoid any charges. Senior personnel at Nu Skin China also requested that the official personally intervene in the matter in exchange for a RMB1 million donation to the charity. Soon after the charitable donation was made, the AIC notified Nu Skin China of its decision to neither charge nor fine the company.
The parent corporation identified the donation as a potential FCPA issue before it occurred and recommended that its Chinese subsidiary consult with U.S. counsel. U.S. counsel recommended that the subsidiary include anti-corruption language in the donation agreement. The parent corporation reviewed the draft of the anti-corruption provisions, but they were removed by the subsidiary just prior to execution.
The SEC alleged that Nu Skin violated the FCPA's accounting requirements because it recorded the payment as a charitable donation and failed to adequately investigate the circumstances of the charity and donation.
This settlement highlights a number of key issues for companies subject to the FCPA:
Publication
Unannounced inspections or ‘dawn raids’ are used by antitrust authorities to obtain evidence when there are suspicions that individuals or businesses have infringed the antitrust rules.
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