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On May 29, the DOJ announced that Jose Manuel Gonzalez Testino, a dual U.S.-Venezuelan citizen, pleaded guilty for his role in a bribery scheme involving Petróleos de Venezuela, S.A. (PDVSA) officials. Gonzalez pleaded guilty in the Southern District of Texas to conspiracy to violate the FCPA, violating the FCPA, and failing to report foreign bank accounts. Gonzalez’s sentencing is set for August 28.
Gonzalez controlled multiple U.S. and international companies that provided goods and services to PDVSA. According to the DOJ, Gonzalez and a co-conspirator paid at least $629,000 in bribes to a former PDVSA official in exchange for favorable business treatment for Gonzalez’s companies. Prior FCPA Scorecard coverage is available here.
Malaysian national extradited to the United States on embezzlement and FCPA charges in 1MDB Fund scheme
On May 6, the DOJ announced that a Malaysian national was extradited to the United States from Malaysia on charges of conspiracy to embezzle and to violate the FCPA’s bribery and accounting provisions in connection with a scheme relating to the 1Malaysia Development Berhad (1MDB) Fund. Ng Chong Hwa, also known as Roger Ng, was a former Managing Director at a financial institution. The indictment against him alleges that between 2009 and 2014, he conspired with others to launder billions of dollars embezzled from 1MDB, including money from three bond offerings underwritten by the financial institution in 2012 and 2013, and that he conspired to bribe government officials in Malaysia and Abu Dhabi to obtain and retain business for the financial institution, including the bond transactions. DOJ alleges that the financial institution received approximately $600 million in fees and revenues from its work for 1MDB, and that Ng and his co-conspirators embezzled more than $2.7 billion from the 1MDB bond deals. In his first court appearance, Ng pleaded not guilty to the charges, and press coverage reported a federal magistrate judge’s statement that DOJ and Ng are engaged in plea negotiations, but Ng’s defense counsel denied the judge’s characterization.
As detailed in prior FCPA Scorecard coverage, alleged co-conspirator and former managing director of the same financial institution, Tim Leissner, pleaded guilty in November 2018 to conspiracy to violate the FCPA and to commit money laundering. Another charged co-conspirator, Low Taek Jho, has not appeared in court.
On April 30, 2019, the Department of Justice Criminal Division released updated guidance on the Evaluation of Corporate Compliance Programs (the “Guidance”). The Guidance sets forth the non-binding factors that DOJ prosecutors utilize to evaluate a company’s compliance program and consequently determine the “(1) form of any resolution or prosecution; (2) monetary penalty, if any; and (3) compliance obligations contained in any corporate criminal resolution (e.g., monitorship or reporting obligation.” The Guidance is, therefore, significant to companies seeking to understand what the DOJ considers to be best practices for compliance programs, as well as to mitigate against criminal penalties resulting from potential wrongdoing.
The Guidance builds upon a prior version released in February 2017 and does not indicate any major policy changes. Instead, this update provides further explanation of the factors DOJ uses to evaluate companies’ compliance programs and contextualize those factors within the enforcement framework of the Justice Manual and Sentencing Guidelines.
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Click here to read the full special alert.
If you have questions about the DOJ’s new guidance or other related issues, please visit our White Collar practice page or contact a Buckley attorney with whom you have worked in the past.
On April 3, the DOJ announced that a Micronesian government official, Master Halbert, pleaded guilty in the District of Hawaii to a money laundering conspiracy “involving bribes made to corruptly secure engineering and project management contracts from the government of the Federated States of Micronesia (FSM), in violation of the” FCPA. Halbert was arrested in February after Frank James Lyon, a Hawaiian executive, pleaded guilty to a related FCPA conspiracy charge the prior month (see previous FCPA Scorecard coverage here).
According to the DOJ, “Halbert was a government official in the FSM Department of Transportation, Communications and Infrastructure who administered FSM’s aviation programs, including the management of its airports.” Halbert admitted that, between 2006 and 2016, Lyon’s engineering and consulting company “paid bribes to FSM officials, including Halbert, to obtain and retain contracts with the FSM government valued at nearly $8 million.” Halbert’s sentencing is scheduled for July 29.
On March 29, DOJ publicly released a non-prosecution agreement it had entered into in late February with Fresenius Medical Care AG & Co. KGaA (“FMC”), a Germany-based provider of medical equipment and services, in which FMC agreed to pay over $230 million to settle claims that it violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA. The alleged misconduct, which included various schemes to pay bribes to public and/or government officials in exchange for business opportunities, occurred over the course of at least a decade and spanned 17 or more countries in Africa, Europe, and the Middle East. On the same day, FMC also entered into an administrative order with the SEC. The SEC stated that the company had failed to timely address “numerous red flags of corruption in its operations” that were known to the company as far back as the early 2000s, and that FMC “failed to properly assess and manage its worldwide risks, and devoted insufficient resources to compliance.”
While FMC received credit for making a voluntary disclosure to DOJ in April 2012 and for remedial measures undertaken since that time, DOJ stated that the company failed to timely respond to certain of its requests and, at times, provided incomplete responses to those requests. Accordingly, the company did not receive full credit for cooperation and did not qualify for a declination under the FCPA Corporate Enforcement Policy. In its non-prosecution agreement, among other things, FMC agreed to: (i) the appointment of an independent compliance monitor for a two-year term, followed by one year of self-reporting, (ii) continuation of its efforts to cooperate with the DOJ’s investigation, and (iii) disgorgement of approximately $147 million to the SEC and payment of approximately $85 million in fines to the U.S. Treasury. The fine amount was calculated with a 40% discount off of the bottom of the United States Sentencing Guidelines fine range based on $141 million in profits from the alleged misconduct.
Notably, the alleged misconduct involved no U.S.-based conduct, individuals, subsidiaries, or third parties. Instead, the individuals alleged to have engaged in misconduct apparently used internet-based email accounts hosted by service providers in the U.S. (and therefore utilized means and instrumentalities of U.S. interstate commerce), and FMC’s American Depository Shares trade on the NYSE so the company files periodic reports with the SEC.
According to the DOJ, on March 25 a Hong Kong executive, Chi Ping Patrick Ho, was sentenced in the SDNY to a 36-month prison sentence. Ho headed up CEFC China Energy Company Limited and was sentenced “for his role in a multi-year, multimillion-dollar scheme to bribe top officials of Chad and Uganda in exchange for business advantages.”
Ho was convicted of money laundering, violating the FCPA, and conspiracy after a week-long trial in December 2018. The DOJ alleged that starting in the fall of 2014, Ho used his US-based NGO to cover up a scheme in which Ho offered $2 million in cash to Idriss Déby, the President of Chad, concealed in gift boxes, in exchange for CEFC receiving oil rights from the government; the President rejected the bribe. In Uganda, the DOJ alleged that Ho gave $1,000,000 in cash payments to Sam Kutsea, the Foreign Minister of Uganda, and Yoweri Museveni, the President of Uganda.
In March 2019, the DOJ amended its FCPA Corporate Enforcement Policy, including to clarify the agency’s position on the use of ephemeral messaging apps by companies seeking full cooperation credit under the policy. Ephemeral messaging apps such as Signal, WhatsApp, and Telegram, now common in many workplaces, allow users to send messages that may not be preserved and retrievable later in the same way as e-mails. To the DOJ, the impermanence of ephemeral messaging makes uncovering details about past events more difficult. Prior to the amendments, the DOJ’s initial Corporate Enforcement Policy had indicated that full cooperation credit would not be available to companies which allowed employees to use “software that generates but does not appropriately retain business records or communications.”
The updated policy softens this position and specifically addresses ephemeral messaging platforms. Companies using the platforms may now be eligible for full cooperation credit, provided that they “implement appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms that undermine the company’s ability to appropriately retain business records or communications or otherwise comply with the company’s document retention policies or legal obligations.” While the amendment may allow companies to take advantage of the beneficial aspects of ephemeral messaging, it also begs new questions as to what constitutes “appropriate” guidance and controls.
The March 2019 amendments also provide additional clarification on de-confliction; add a new comment explaining how the DOJ will implement a presumption of a declination in cases where a company involved in a merger or acquisition “uncovers misconduct through thorough and timely due diligence . . . and voluntarily self-discloses,” with the potential for a declination for the acquiring company even where there are aggravating circumstances regarding the acquired company; and enlarge the voluntary self-disclosure of individuals category to include information not just about “all individuals involved in the violation,” but “all individuals substantially involved in or responsible for the violation.”
In his March 8, 2019 remarks to the American Bar Association’s National Institute on White Collar Crime, Assistant Attorney General Brian A. Benczkowski referenced the updates and emphasized the importance of reviewing the 12 previous case declinations made under the policy as supplemental guidance in understanding the policy.
In an indictment unsealed on February 26, the DOJ charged a former sales representative and the president of a U.S.-based company with conspiracy to commit bribery, wire fraud, and money laundering, and substantive wire fraud, for their alleged roles in “a scheme to corruptly secure business advantages, including contracts and payment on past due invoices, from Venezuela’s state-owned and state-controlled energy company, Petroleos de Venezuela S.A. (PDVSA).” The indictment alleges that from approximately 2009 to 2013, the sales representative, Rafael Enrique Pinto Franceschi, and the president of the company, Franz Herman Muller Huber, conspired to bribe three PDVSA officials in exchange for providing advantages to the unnamed company, including through the creation of fictitious invoices from Panamanian shell companies.
According to the indictment, in exchange for the bribes the PDVSA officials allegedly assisted the company in obtaining additional PDVSA contracts, inside information, and payment on past due invoices. The defendants are also alleged to have received kickbacks in connection with the scheme. In total, Pinto is alleged to have received over $985,000 and Muller over $258,000 in kickback payments. Two of the three officials that the defendants are accused of bribing have pleaded guilty in connection with the case and are pending sentencing.
On February 20, TechnipFMC, a London-based oil and gas services company, reported in a filing with the SEC that it has set aside $280 million as an estimate for the settlement of investigations by U.S., Brazilian, and French law enforcement authorities regarding potential violations of anticorruption laws in several countries. The company’s predecessor, Technip SA, previously paid $338 million to settle FCPA charges brought by the DOJ and the SEC in 2010.
The U.K.’s Serious Fraud Office (SFO) announced on February 22 that it was ending two long-running corruption-related investigations – one of aviation company Rolls-Royce and the other of pharmaceutical giant GlaxoSmithKline – without bringing charges against any individuals.
In 2017, Rolls-Royce paid $650 million to settle an SFO investigation into a government kickbacks scheme. In connection with the resolution of the SFO’s charges, Rolls-Royce admitted to bribing government officials in Russia, India, China, Nigeria, and elsewhere in exchange for contracts worth hundreds of millions of pounds. Rolls-Royce also paid $170 million to resolve related charges brought by the DOJ, with the DOJ later charging five individuals for their alleged participation in the bribery scheme.
Although the SFO announced in 2014 that GlaxoSmithKline was under investigation, the SFO never disclosed the subject matter of that investigation. In its only announcements about the case, the SFO has noted simply that the investigation concerned the company’s “commercial practices.” In 2012, GlaxoSmithKline had paid $3 billion in the U.S. to settle charges brought by U.S. prosecutors concerning alleged off-label marketing, and in 2014 was convicted in China of bribing doctors and hospitals to improve sales, but it remains unknown whether the SFO’s investigation related to one of these known issues or something different.
The SFO Director explained in a public statement that the decision to decline prosecution of any individuals in connection with these investigations was because “there is either insufficient evidence to provide a realistic prospect of conviction, or it is not in the public interest to bring a prosecution in these cases.”
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