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On January 8, the Treasury Department’s Office of Foreign Assets Control (OFAC) sanctioned Venezuelan individuals and companies, including billionaire news network Globovision owner Raul Gorrin Belisario and former Venezuelan National Treasurer Claudia Patricia Diaz Guillen, for their participation in a bribery scheme involving bribes to members of the Venezuelan government. According to the Treasury Department, OFAC designated or blocked seven individuals, including Diaz and Gorrin, and 23 entities, including Globovision, pursuant to Executive Order 13850, for their roles in bribing the Venezuelan Office of the National Treasury in exchange for the right to conduct illicit foreign currency exchanges in Venezuela.
As a result of the designation, all property and interests in property of the designated individuals and entities “subject to or transiting U.S. jurisdiction are blocked,” and any U.S. transactions with them are prohibited. However, two Globovision companies owned by Gorrin and his business partner will be permitted to continue to conduct U.S. business for a one-year period. This period is intended to allow the Venezuelan-based Globovision news network to continue operating while Gorrin and his business partner divest their holdings in the company.
As FCPA Scorecard previously reported, Gorrin was indicted under seal in August for conspiracy to violate the FCPA, conspiracy to commit money laundering, and nine counts of money laundering.
On December 26, Brazil’s Centrais Elétricas Brasileiras S.A. – Eletrobras (Eletrobras or the company) entered into an administrative order to settle the SEC’s claims that Eletrobras violated the books and records and internal accounting controls provisions of the FCPA and agreed to pay a civil monetary penalty of $2.5 million.
Eletrobras, which is majority-owned by the Brazilian government, is alleged to have – through former officers of its nuclear power generation subsidiary – rigged bids and paid bribes through private construction companies in relation to construction of a nuclear power plant in Brazil. This matter was first announced publicly in October 2016 when the company hired outside counsel to conduct an internal investigation into related conduct.
In entering into this administrative order, the SEC consider the company’s cooperation efforts, including sharing facts discovered in its internal investigation and producing and translating related documents, as well as its efforts towards remediation, including discipline of involved employees, enhancement of internal accounting controls and compliance functions, and adoption of new anti-corruption policies and procedures.
Previous coverage can be found here.
On December 26, Polycom, Inc. (Polycom or the company), a wholly-owned subsidiary of Plantronics, Inc., entered into an administrative order to settle claims by the SEC that Polycom violated the books and records and internal accounting controls provisions of the FCPA. The alleged conduct involved improper payments made through distributors and resellers of Polycom Communications Solutions (Beijing) Co., Ltd. (“Polycom China”) to Chinese government officials from 2006 through 2014 in an effort to obtain business from public sector customers.
According to the administrative order, at the instruction of the Vice President of Polycom China, sales personnel used a sales management system outside of the U.S.-based company-approved database to parallel-track sales to public sector customers in China. The scheme involved providing discounts to distributors and resellers that were used to cover the costs of payments to Chinese government officials. These discounts were not passed on to the end customer, and the purpose of those discounts was not tracked in the company-approved database. Polycom China sales personnel were also instructed by the VP to use non-company email addresses when discussing and arranging these deals.
Pursuant to the administrative order, Polycom will pay to the SEC approximately $10.7 million in disgorgement, $1.8 million in prejudgment interest, and a $3.8 million civil monetary penalty.
On the same day, DOJ released a December 20, 2018 declination letter settling its investigation of the same conduct. Pursuant to the declination letter, Polycom agreed to disgorge approximately $10.15 million to the U.S. Treasury Department and $10.15 to the U.S. Postal Inspection Service Consumer Fraud Fund.
In settling these matters, both the SEC and DOJ cited Polycom’s identification of the misconduct, thorough internal investigation conducted by outside counsel, prompt voluntary disclosure, full cooperation, and remediation efforts. Polycom’s lauded cooperative efforts included making certain employees available for interviews, as well as producing all requested documents and translating large volumes of those documents from Mandarin to English. The remedial efforts cited included termination of eight employees and discipline of eighteen others, termination or reorganization of certain channel partner relationships, enhancement of third party oversight, and improvements to anticorruption and related trainings provided to China-based employees (certain materials of which had previously not been translated into Mandarin, the first language of many Polycom China employees).
On December 19, a UK Court found former Alstom Power Ltd. Global Sales Director Nicholas Reynolds guilty of conspiracy to corrupt in connection with his role in bribing Lithuanian officials to win lucrative power station contracts for the French power and transportation company. Mr. Reynolds will be sentenced on December 21.
The conviction follows the guilty pleas of Alstom and two other individuals in the UK in connection with the company’s Lithuanian bribery scheme. According to the SFO, Alstom companies paid Lithuanian politicians more than €5 million (~$6.3 million in today’s USD) in bribes to secure the contracts, valued at €240 million (~$304 million in today’s USD). The SFO also has charged Alstom and former Alstom executives for alleged corruption spanning Hungary, India, Poland, and Tunisia.
In late 2014, Alstom and various subsidiaries agreed to pay a then-record $772 million fine in connection with FCPA violations spanning numerous countries. For prior FCPA Scorecard coverage of Alstom, please see here.
On December 17 and 19, press reports indicate Malaysian prosecutors filed criminal charges against a New York-based financial institution and numerous individuals, including former executives of the financial institution, in connection with their alleged roles in a multi-billion bribery and money laundering scheme involving Malaysia sovereign wealth fund 1Malaysia Development Berhad (1MDB).
Malaysian prosecutors charged the financial institution with making false and misleading statements when raising money for 1MDB. Among individuals, Tim Leissner, a former participating managing director of the financial institution, and Ng Chong Hwa (also known as Roger Ng), a former managing director, also were charged. These charges follow the U.S. government’s investigation and charges related to the same 1MDB scheme.
As detailed in prior FCPA Scorecard coverage, Leissner pleaded guilty in November to Conspiracy to Violate the FCPA and Conspiracy to Commit Money Laundering and agreed to forfeit $43.7 million. The DOJ charged NG with similar offenses and, according to press reports, is fighting extradition to the United States.
According to press reports, in response to the filing of the criminal charges in Malaysia, the financial institution stated: “Under the Malaysian legal process, the firm was not afforded an opportunity to be heard prior to the filing of these charges against certain Goldman Sachs entities, which we intend to vigorously contest. These charges do not affect our ability to conduct our current business globally.”
The DOJ has not charged or reached a resolution with the financial institution, which previously announced that it was cooperating with the DOJ’s and all regulators’ investigations. The announcement of the Malaysian charges suggests that the U.S. DOJ and Malaysian prosecutors may not be coordinating efforts.
On December 18, the former CEO and CFO of U.S.-based Panasonic Avionics Corporation (PAC) settled SEC charges that they knowingly violated books and records and internal accounting controls provisions of the federal securities laws and caused similar violations by PAC’s parent company, Osaka, Japan-based Panasonic Corp. (Panasonic). As detailed in prior FCPA Scorecard coverage, Panasonic and PAC settled related FCPA charges in April and agreed to pay a combined $280 million to the DOJ and SEC.
PAC’s former President and CEO, Paul A. Margis, and its former CFO, Takeshi “Tyrone” Uonaga, consented to the entry of their administrative orders without admitting or denying the findings and agreed to pay penalties of $75,000, and $50,000, respectively.
The SEC alleged Mr. Margis authorized the use of a third-party to pay more than $1.76 million to several consultants who provided little to no services. One of these consultants, a Middle East government official, was paid $875,000 to help secure over $700 million in business from a state-owned airline, but the position “required little to no work.” The bribery scheme involving this foreign official was previously described in the DPA with DOJ and the SEC Settlement Order. Mr. Margis was also charged with making false representations to PAC’s auditor regarding internal accounting controls, and books and records.
The SEC charged Mr. Uonaga in connection with a backdating scheme that resulted in Panasonic improperly recording $82 million in revenue. Mr. Uonaga was charged with making false representations to PAC’s auditor regarding the company’s financial statements, internal accounting controls, and books and records. The order against Mr. Uonaga suspends him from appearing or practicing before the Commission as an accountant for at least five years.
Mr. Margis and Mr. Uonaga were previously described in the SEC Settlement Order as PAC Executive 1 and PAC Executive 2, respectively. The DOJ has not brought any criminal charges against any individuals in this matter.
On December 11, the Organization for Economic Cooperation and Development (OECD) published a study examining the consequences faced by public officials who allegedly accepted bribes. The study analyzed 55 foreign-bribery cases concluded between 2008 and 2013 in which companies based in OECD countries had been sanctioned for bribery. It found that government officials were criminally sanctioned in only one-fifth of the 55 cases studied. An additional 11 actions were still pending at either the investigative or prosecutorial stages. The study also found that none of the countries in which bribes were paid, the demand-side countries, detected that their public officials demanded a bribe. Instead, the study found that the “media plays a major role in international information flow.”
On December 10, a former procurement officer of Petroleos de Venezuela S.A. (PDVSA), Venezuela’s state-owned and state-controlled energy company, pleaded guilty to one count of obstructing an investigation into bribes paid by the owner of U.S.-based companies to Venezuelan government officials in exchange for securing additional business with PDVSA and payment priority on outstanding issues. Alfonso Eliezer Gravina Munoz (Gravina), who previously worked for PDVSA in Houston, Texas, pleaded guilty to one count of conspiracy to obstruct an official proceeding.
The charge stems from a guilty plea Gravina entered on December 10, 2015, to one count of conspiracy to launder money and one count of making false statements on his federal income tax return. Under the terms of a plea agreement in that case, Gravina agreed to cooperate with the investigation by being interviewed by the United States, and to providing “truthful, complete and accurate information” to government agents and attorneys. In the latest plea, though, Gravina admitted that after his earlier plea, he concealed facts about bribes paid to PDVSA by a target of the investigation, referred to as Co-Conspirator 1 in the indictment. Additionally, Gravina informed Co-Conspirator 1 that U.S. government authorities were investigating Co-Conspirator 1, and provided Co-Conspirator 1 with information about the investigation, including the topics discussed in Gravina’s meetings with the government. Consequently, Co-Conspirator 1 destroyed evidence and attempted to flee the country in July 2018. Gravina is scheduled to be sentenced on Feb. 19, 2019.
On November 30, a U.S.-based agriculture company, CHS Inc., disclosed in an SEC filing that it is cooperating with an investigation being conducted by the SEC and DOJ involving payments made to Mexican customs officials. The payments were made in connection with grain shipments crossing the U.S.-Mexican border by train. CHS Inc. is a Fortune 100 company that is owned primarily by farmer and rancher cooperatives and has extensive operations in the energy sector in addition to agriculture.
The SEC filing states that the company voluntarily self-disclosed the potential violations and stressed the company’s full cooperation with the investigation, which includes “investigating other areas of potential interest to the government.” The DOJ has placed great emphasis on the importance of voluntary self-disclosure and cooperation in recent policy statements. See previous Scorecard coverage here. This investigation is noteworthy because while investigations in the energy sector are common, investigations in the agricultural sector are less so. The eventual resolution of this investigation may provide useful guidance for other agribusiness companies.
On November 30, the United Kingdom’s Serious Fraud Office (SFO) announced the successful conclusion of the deferred prosecution agreement entered into in 2015 with Standard Bank PLC, which had followed allegations that payments were made by two former employees to bribe members of the Tanzanian government. This deferred prosecution agreement was the first ever entered into by the SFO and also marked the first use of Section 7 of the Bribery Act of 2010—failure of commercial organizations to prevent bribery—by any U.K. prosecutor. Upon entering into the deferred prosecution agreement in 2015, Standard Bank had also settled related charges with the SEC. See previous Scorecard coverage here.
The DPA required Standard Bank to pay fines and disgorgement totaling almost $26 million, pay an additional $6 million to compensate the government of Tanzania, and hire an external compliance consultant. On the basis that Standard Bank had fully complied with the terms of the agreement, the SFO announced that it had advised the relevant UK court that it will conclude the DPA without restarting proceedings against the bank. The SFO’s announcement also promised that a “Details of Compliance” document outlining how Standard Bank met the terms of the deferred prosecution agreement would be published on the SFO’s website in the future. Because this is the SFO’s first deferred prosecution agreement, this document could be very useful guidance for companies to understand what measures will be expected to satisfy the SFO.
- Daniel R. Alonso to moderate an interactive roundtable at the Latin Lawyer and GIR Connect: Anti-Corruption & Investigations Conference
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- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jeffrey P. Naimon to discuss "Truth in lending” at the American Bar Association National Institute on Consumer Financial Services Basics
- Daniel R. Alonso to discuss anti-money-laundering at FELABAN Spanish-language webinar “Perspective for banks: LAFT, FINCEN, OFAC, Cryptocurrency”
- Daniel R. Alonso to discuss "What’s new in BSA/AML compliance?" at the Institute of International Bankers Regulatory Compliance Seminar
- Jon David D. Langlois to discuss "Regulatory update: What you need to know under the new boss; It won’t be the same as the old boss" at the IMN Residential Mortgage Service Rights Forum (East)
- Benjamin B. Klubes to discuss “Creating a Fantastic Workplace Culture”
- John R. Coleman and Amanda R. Lawrence to discuss “Consumer financial services government enforcement actions – The CFPB and beyond” at the Government Investigations & Civil Litigation Institute Annual Meeting
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
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