Undiscovered bribes can yield a finite number of business benefits, which generally can be grouped under the rubric of increased revenue. Discovered or even suspected bribes, on the other hand, can generate a seemingly limitless number of legal detriments. One of the more frequently cited categories of detriments is the possibility of being subject to multiple global anti-bribery regimes based on the same or similar conduct. Siemens is the paradigm case here. A less frequently cited – but no less forbidding – bad outcome is the possibility of non-FCPA liability for actual or alleged FCPA violations. A lawsuit recently filed by the County of York Retirement Plan (York County) against Avon Products, Inc. (Avon or the Company) illustrates the ability of an FCPA investigation to metastasize into something else entirely. In this case, York County generally seeks to inspect Avon’s books and records in order to substantiate a breach of fiduciary duty claim; in turn, that underlying breach of fiduciary duty claim is generally premised on the idea that Avon had inadequate or nonexistent FCPA compliance policies and procedures in place during the relevant period, leading to apparent FCPA violations in China. Those apparent violations have led to internal and regulatory investigations which to date have cost Avon almost a quarter of $1 billion. This article describes the factual background and legal claims alleged in York County’s complaint and related litigation.
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