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On May 7, the DOJ charged two employees of a U.S. broker-dealer and a senior official in Venezuela's state economic development bank for their alleged roles in what the DOJ describes as a "massive international bribery scheme." According to an unsealed criminal complaint, the DOJ accuses the broker-dealer employees and the foreign official of violating the FCPA by conspiring to pay $5 million in bribes to the foreign official in exchange for her directing the economic development bank's trading business to the broker-dealer, which yielded millions more in mark-ups and mark-downs for the broker-dealer. The government alleges that commissions paid on the directed trades were split with the foreign official through monthly kickbacks and that some of the trades executed for the bank had no discernible business purpose. To further conceal the scheme, the government claims, the kickbacks often were paid using intermediary corporations and offshore accounts, the assets of which the government is pursuing through a separate civil forfeiture action. On the same day, the SEC announced a parallel civil action against the two broker-dealer employees and two other individuals who allegedly participated in and profited from the scheme. The investigations and subsequent criminal and civil charges stemmed from a routine periodic SEC examination of the broker-dealer. The DOJ warned others in the financial services industry, particularly brokers, about engaging in similar activities, and the SEC's conduct in this case suggests its examiners are focused on conduct that potentially violates the FCPA.
- United States of America v. Clarke et al. Complaint
- Securities and Exchange Commission v. Clarke et al. Complaint
On April 22, the DOJ and the SEC announced parallel actions against Ralph Lauren to resolve allegations that a subsidiary of the company paid bribes to Argentine officials over a several-year period to obtain improper customs clearance of merchandise. The SEC action included the agency's first non-prosecution agreement related to FCPA misconduct, which the SEC determined was appropriate given "Ralph Lauren's prompt reporting of the violations on its own initiative, the completeness of the information it provided, and its extensive, thorough, and real-time cooperation with the SEC's investigation." According to the SEC's NPA, Ralph Lauren's cooperation involved (i) reporting preliminary findings of its internal investigation to the staff within two weeks of discovering the illegal payments and gifts, (ii) voluntarily and expeditiously producing documents, (iii) providing English language translations of documents to the staff, (iv) summarizing witness interviews that the company's investigators conducted overseas, and (v) making overseas witnesses available for staff interviews and bringing witnesses to the U.S. The SEC agreement also required Ralph Lauren to pay over $700,000 in disgorgement and prejudgment interest, while the DOJ required the company to pay a nearly $900,000 penalty.
On April 5, 2013, Koninklijke Philips Electronics, N.V., the Dutch parent of the Philips group of companies, settled an SEC administrative proceeding for more than $4.5 million. The SEC alleged that Philips violated the internal controls and books and records provisions of the FCPA based on improper payments by employees of its Polish subsidiary to Polish government officials from 1999-2007 in connection with contracts for medical equipment. The SEC cited Philipss voluntary disclosure of the improprieties and subsequent remedial measures in deciding to accept the settlement.
Keyuan Petrochemicals Inc. and Former CFO Settle FCPA Books and Records Action with SEC for $1.025 million
On February 28, 2013, Keyuan Petrochemicals Inc., a China-based issuer with US-trading stock, and its former CFO, settled an enforcement action with the SEC for a total of $1.025 million. The SEC alleged numerous violations primarily related to a failure to disclose related party transactions, but also alleged the use of an off-balance sheet cash account to pay various expense including gifts to Chinese government officials, and a failure to properly record such transactions.
Judge Refuses to Find Personal Jurisdiction over Siemens Executive, in Conflict with SDNY Colleagues Ruling in Prior Week
On February 19, 2013, a federal judge granted the motion to dismiss filed by a Siemens executive, Herbert Steffen, on the grounds that the SEC's civil FCPA complaint had failed to adequately allege personal jurisdiction over him, because the allegations were "far too attenuated from the resulting harm to establish minimum contacts." A week earlier, a different judge on the same court had refused to dismiss charges against executives of Magyar Telekom on similar personal jurisdiction grounds.
On December 20, 2012, Eli Lilly & Co. settled an enforcement action filed the same day by the SEC for nearly $29.4 million. The SEC alleged that Lilly subsidiaries in Russia, Brazil, China and Poland made improper payments to government officials to obtain or retain business and that Lilly itself knew of the payments by the Russian subsidiary but did not act to stop the conduct for more than five years.
On December 17, 2012, German insurance and asset management company Allianz SE settled an administrative proceeding brought by the SEC for more than $12.3 million. The SEC alleged that Allianz violated the internal controls and books and records provisions of the FCPA in connection with improper payments to government officials by its Indonesian subsidiary over a seven-year period.
On November 14, 2012, the US DOJ and SEC released A Resource Guide to the Foreign Corrupt Practices Act, almost a year to the day that Assistant Attorney General Lanny Breuer announced that the SEC and DOJ would prepare an FCPA Guidance document (click here and here for previous Buckley Sandler posts on this issue). Overall, the FCPA Guide is a helpful compilation of previously-issued guidance and litigation positions set forth by the DOJ and SEC, and a useful starting point for constructing, testing or revising an FCPA compliance program.
In Fall 2012 the US DOJ issued FCPA Opinion Release 12-02, regarding whether US adoption agencies could pay for and host foreign government officials visiting the US. The trip would involve the officials interviewing the adoption agencies staff and meeting with US families who had previously adopted children from the foreign country. Payment would be made directly to service providers, with no money, including per diems, given to the officials. The DOJ opined that under the circumstances, the trips were reasonable and bona fide expenditures directly related to the promotion, demonstration, or explanation of the adoption agencies products or services, and therefore permissible under the FCPA.
In Fall 2012, the former CFO of Digi International, Inc., Subramanian Krishnan, partially settled an SEC enforcement action stemming from the use of Divi funds to pay for unauthorized travel and entertainment expenses. The amount of any disgorgement, interest, and civil penalty is still to be determined.