美国上市申报不实自救指南「合规官对话检察官（3）」

本文作者Steve Hill是大成Dentons美国办公室合伙人、大成Dentons“全球白领犯罪和政府调查”部门联合主席、克林顿总统任命的前密苏里州总检察长；Sara Holzschuh是大成Dentons美国办公室合伙人、美国前联邦检察官；陈立彤律师是中国律师、美国纽约州律师、福特公司前亚太区合规总监；入选司法部“全国千名涉外律师人才名单”，钱伯斯2020亚太榜公司调查/反腐败领域受认可律师。陈立彤律师著有《商业贿赂风险管理》、《企业国际化进程中合规风险的爆发与防控》。

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美国上市申报不实自救指南

Steve Hill、Sara Holzschuh、陈立彤

这是「合规官对话检察官」系列文章第三篇，该系列文章旨在帮助大家从检察官与合规官的视角来讨论美国法下对中国公司而言那些重大的合规实务、问题和事项。

2001年10月，美国证交会发表了一份《调查报告和声明》，解释虽有某上市公司财务报表申报不实在先，但因为该公司自行发起调查，证交会从而决定不对该公司采取执法行动。在这份报告——该报告通常被称为“Seaboard Report”——证交会阐述了一个评估公司是否合作的分析框架。该报告详细说明了证交会对被调查公司是否且如何给予宽大处理的四大考量因素：

• 自我调查（self-policing），包括发现不当行为之前的自我监督，包括建立有效的合规程序和从高层自上而下的合规宣贯；

• 自我举报（self-disclosure），包括发现不当行为时进行自我报告，包括彻底审查不当行为的性质、程度、来源和后果，并及时、全面、有效地向公众、监管机构和自律组织披露不当行为；

• 补救措施（remediation），包括解雇或适当惩戒相关违法违规人员，修改和改进内部控制和程序以防止不当行为再次发生，并适当补偿那些受到不利影响的人；

• 与执法机关合作（cooperation），包括向委员会工作人员提供与潜在违法行为和公司补救措施有关的所有信息。

就上述四大因素，相关公司应当在下述13个方面自查。一如既往，我们还是用英文提供下面的材料，一方面这方面的英文表述非常重要；另一方面也是借机与大家一起学习、提高法律英语：

In brief form, we set forth below some of the criteria we will consider in determining whether, and how much, to credit self-policing, self-reporting, remediation and cooperation -- from the extraordinary step of taking no enforcement action to bringing reduced charges, seeking lighter sanctions, or including mitigating language in documents we use to announce and resolve enforcement actions.

1. What is the nature of the misconduct involved? Did it result from inadvertence, honest mistake, simple negligence, reckless or deliberate indifference to indicia of wrongful conduct, willful misconduct or unadorned venality? Were the company's auditors misled?

2. How did the misconduct arise? Is it the result of pressure placed on employees to achieve specific results, or a tone of lawlessness set by those in control of the company? What compliance procedures were in place to prevent the misconduct now uncovered? Why did those procedures fail to stop or inhibit the wrongful conduct?

3. Where in the organization did the misconduct occur? How high up in the chain of command was knowledge of, or participation in, the misconduct? Did senior personnel participate in, or turn a blind eye toward, obvious indicia of misconduct? How systemic was the behavior? Is it symptomatic of the way the entity does business, or was it isolated?

4. How long did the misconduct last? Was it a one-quarter, or one-time, event, or did it last several years? In the case of a public company, did the misconduct occur before the company went public? Did it facilitate the company's ability to go public?

5. How much harm has the misconduct inflicted upon investors and other corporate constituencies? Did the share price of the company's stock drop significantly upon its discovery and disclosure?

6. How was the misconduct detected and who uncovered it?

7. How long after discovery of the misconduct did it take to implement an effective response?

8. What steps did the company take upon learning of the misconduct? Did the company immediately stop the misconduct? Are persons responsible for any misconduct still with the company? If so, are they still in the same positions? Did the company promptly, completely and effectively disclose the existence of the misconduct to the public, to regulators and to self-regulators? Did the company cooperate completely with appropriate regulatory and law enforcement bodies? Did the company identify what additional related misconduct is likely to have occurred? Did the company take steps to identify the extent of damage to investors and other corporate constituencies? Did the company appropriately recompense those adversely affected by the conduct?

9. What processes did the company follow to resolve many of these issues and ferret out necessary information? Were the Audit Committee and the Board of Directors fully informed? If so, when?

10. Did the company commit to learn the truth, fully and expeditiously? Did it do a thorough review of the nature, extent, origins and consequences of the conduct and related behavior? Did management, the Board or committees consisting solely of outside directors oversee the review? Did company employees or outside persons perform the review? If outside persons, had they done other work for the company? Where the review was conducted by outside counsel, had management previously engaged such counsel? Were scope limitations placed on the review? If so, what were they?

11. Did the company promptly make available to our staff the results of its review and provide sufficient documentation reflecting its response to the situation? Did the company identify possible violative conduct and evidence with sufficient precision to facilitate prompt enforcement actions against those who violated the law? Did the company produce a thorough and probing written report detailing the findings of its review? Did the company voluntarily disclose information our staff did not directly request and otherwise might not have uncovered? Did the company ask its employees to cooperate with our staff and make all reasonable efforts to secure such cooperation?3

12. What assurances are there that the conduct is unlikely to recur? Did the company adopt and ensure enforcement of new and more effective internal controls and procedures designed to prevent a recurrence of the misconduct? Did the company provide our staff with sufficient information for it to evaluate the company's measures to correct the situation and ensure that the conduct does not recur?

13. Is the company the same company in which the misconduct occurred, or has it changed through a merger or bankruptcy reorganization?

在美国上市（广义上的上市）的中国公司可以对照前述13个合规要点来检查其是否有合规风险并决定是否通过自我调查、自我举报、补救措施和与政府调查机构合作以谋求宽大处理从而获得合规红利。

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另，陈立彤律师正在写英文版的Bribery Risk Management in China，为了丰富本书的材料，「中国合规网」发起了下列调查，麻烦您花1分钟的时间参与一下，帮助我们帮助您，多谢！