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On May 27, the DOJ announced it had entered into a three-year deferred prosecution agreement with a Swiss bank charged with conspiring to commit money laundering, in which the bank agreed to pay more than $79 million after admitting that it “conspired to launder over $36 million in bribes through the United States to soccer officials” in exchange for broadcasting rights to international soccer matches. According to the DOJ, between February 2013 and May 2015, the bank, through a former bank relationship manager (who pleaded guilty in June 2017 for his role in the scheme and was sentenced last November), conspired with sports marketing executives to launder at least $36 million in bribes through the U.S. in order to “conceal the true nature of the payments and promote the fraud.” During this period, the DOJ claimed the bank’s anti-money laundering (AML) controls “failed to detect or prevent money laundering transactions related to the bribery schemes,” and that had the former bank relationship manager’s supervisors or compliance personnel conducted meaningful due diligence they would have been alerted to “multiple, significant red flags, including facially false contracts, payments to third parties at the direction of a [soccer federation] official, and services purportedly rendered by shell corporations—all of which would have alerted the [b]ank to the bribery, money laundering or other illegal activity.” The DOJ further noted that the bank admitted it was aware that the former bank relationship manager’s clients’ accounts were associated with international soccer—an area “generally understood to involve high corruption risks”—but still directed these accounts to be fast tracked in the hopes of obtaining lucrative business.
The terms outlined in the deferred prosecution agreement are based on several factors, the DOJ stated, including the bank’s prior criminal history and the fact that the bank failed to voluntarily disclose the conduct and played a critical rule in the scheme for more than two years. The DOJ further noted that the bank did not receive any cooperation credit because it made misleading representations about relevant facts in the case, which hindered the investigation, and failed to provide all evidence pertaining to the involvement of senior management. However, the bank did receive some credit for making significant efforts to remediate its compliance program and spent $112 million on a three-year AML initiative designed to upgrade all accounts held by the bank, not just high-risk accounts. Under the terms of the agreement, the bank will pay a fine of roughly $43.3 million and forfeit approximately $36.4 million.
On April 28, the DOJ announced the arrest of a dual Russian-Swedish national on criminal charges related to his alleged operation of a bitcoin money laundering service on the darknet. The DOJ referred to the individual’s money-laundering service as the “longest-running cryptocurrency ‘mixer,’” stating that it moved over 1.2 million bitcoin valued at approximately $335 million at the time of transactions over the course of 10 years. According to the DOJ, the majority of the cryptocurrency came from darknet marketplaces tied to illegal narcotics, computer fraud, and abuse activities. The individual is charged with (i) money laundering; (ii) operating an unlicensed money transmitting business; and (iii) money transmission without obtaining a license in the District of Columbia.
On May 5, the U.S. District Court for the District of Columbia vacated the CDC’s eviction moratorium issued in response to the Covid-19 pandemic, ruling that the agency exceeded its authority with the temporary ban. The nationwide eviction ban was recently extended until June 30. Other courts have ruled on the lawfulness of the eviction moratorium but have limited the scope of their decisions to apply only to the particular parties involved in those lawsuits (see, e.g. InfoBytes coverage here). However, in vacating the eviction moratorium, the court rejected the federal government’s request that the decision be narrowed. “The Department urges the Court to limit any vacatur order to the plaintiffs with standing before this Court,” the court wrote. However the court found that “[t]his position is ‘at odds with settled precedent’” and that “when ‘regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioner is proscribed.’” The court further emphasized that “[i]t is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic.” Specifically, the court noted that the “question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not. Because the plain language of the Public Health Service Act . . . unambiguously forecloses the nationwide eviction moratorium, the Court must set aside the CDC order.”
Following the ruling, the DOJ issued a statement announcing its intention to appeal the court’s decision, citing that the court’s order “conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts.”
On February 25, the U.S. District Court for the Eastern District of Texas granted plaintiffs’ motion for summary judgment, ruling that decisions to enact eviction moratoriums rest with the states and that the federal government’s Article I power under the U.S. Constitution to regulate interstate commerce and enact necessary and proper laws to that end “does not include the power” to order all evictions be stopped during the Covid-19 pandemic. The Centers for Disease Control and Prevention (CDC) issued an eviction moratorium order last September (set to expire March 31), which “generally makes it a crime for a landlord or property owner to evict a ‘covered person’ from a residence” provided certain criteria are met. The CDC’s order grants the DOJ authority to initiate criminal proceedings and allows the imposition of fines up to $500,000. The plaintiffs—owners/managers of residential properties located in Texas—argued that the federal government does not have the authority under Article I to order property owners to not evict specified tenants, and that the decision as to whether an eviction moratorium should be enacted resides with the given state. The CDC countered that Article I afforded it the power to enact a nationwide moratorium, and argued, among other things, that “evictions covered by the CDC order may be rationally viewed as substantially affecting interstate commerce because 15% of changes in residence each year are between States.”
However, the court disagreed stating that the CDC’s “statistic does not readily bear on the effects of the eviction moratorium” at issue, and that moreover, “[i]f statistics like that were enough, Congress could also justify national marriage and divorce laws, as similar incidental effects on interstate commerce exist in that field.” The court determined that the CDC’s eviction moratorium exceeds Congress’ powers under the Commerce Clause and the Necessary and Proper Clause. “The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” the court wrote. “It did not do so during the deadly Spanish Flu pandemic. . . .Nor did it invoke such a power during the exigencies of the Great Depression.  The federal government has not claimed such a power at any point during our Nation’s history until last year.”
The DOJ issued a statement on February 27 announcing its decision to appeal the court’s decision, citing that the court’s order “‘does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect.’”
Indonesian company settles with OFAC for $1 million for North Korea sanctions violations, enters into deferred prosecution agreement with DOJ
On January 14, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced a more than $1 million settlement with an Indonesian-based paper products manufacturer for 28 apparent violations of the North Korea Sanction Regulations. According to OFAC’s web notice, between 2016 and 2018, the company “exported cigarette paper to entities located in or doing business on behalf of the Democratic People’s Republic of Korea (DPRK),” including a Chinese intermediary that procured paper on behalf of an OFAC-designated company operating under an alias. The company allegedly directed payments for its DPRK-related exports to a U.S. dollar bank account held at a non U.S. bank, leading to 28 wire transfers being cleared through U.S. banks. OFAC noted that while the company initially referenced the DPRK entities on documents such as invoices, packing lists, and bills of lading, it eventually replaced the references with the names of intermediaries located in third countries.
In arriving at the settlement amount, OFAC considered various aggravating factors, including that the company (i) “acted with reckless disregard for U.S. sanctions laws and regulations” by directing DPRK-related payments to its U.S. dollar account; (ii) was aware that management had actual knowledge of the conduct at issue; and (iii) the company’s actions “caused U.S. persons to confer economic benefits to the DPRK and an OFAC-designated person.”
OFAC also considered various mitigating factors, including that the company (i) cooperated with OFAC’s investigation; (ii) has undertaken remedial measures, ceased all dealings with the DPRK, and enhanced its compliance controls and internal policies by, among other things, procuring a sanctions screening service from a third-party provider, implementing a know-your-customer process, and requiring that “all trading companies or agents purchasing goods on behalf of other end-users sign an anti-diversion agreement that includes OFAC sanctions compliance commitments.”
Separately, the DOJ announced that the company agreed to pay a $1.5 million fine and enter into a deferred prosecution agreement for conspiring to commit bank fraud after admitting it deceived U.S. banks in order to trade with the DPRK. The company also “agreed to implement a compliance program designed to prevent and detect violations of U.S. sanctions laws and regulations and to regularly report to the [DOJ] on the implementation of that program.” The company is also required to report violations of relevant U.S. laws to the DOJ and “cooperate in the investigation of such offenses.”
On January 8, the DOJ announced it had entered into a deferred prosecution agreement with a German-based multi-national financial services company (company), in which the company agreed to pay more than $130 million to resolve an investigation into violations of the Foreign Corrupt Practices Act (FCPA) and a separate investigation into a commodities fraud scheme.
According to the DOJ, between 2009 and 2016, the company admitted to knowingly and willfully conspiring to conceal payments to business development consultants (BDC) which were actually bribes to foreign officials in order to obtain business. The company admitted that employees agreed to “misrepresent the purpose of payments to BDCs and falsely characterize[d] payments to others as payments to BDCs” in violation of the FCPA’s books, records, and accounts provisions. Additionally, company employees failed to implement adequate internal accounting controls in violation of the FCPA by, among other things, (i) failing to conduct meaningful due diligence regarding the BDCs; (ii) paying BDCs who were not under contract with the company at the time; and (iii) paying BDCs without adequate documentation of the services purportedly performed.
Additionally, the DOJ stated that between 2008 and 2013, the company’s precious metal traders engaged in a scheme to defraud other traders on the New York Mercantile Exchange Inc. and Commodity Exchange Inc. by placing orders to buy and sell precious metals futures contracts with the intent to cancel those orders before execution. The company previously settled with the CFTC in January 2018 for substantially the same conduct (covered by InfoBytes here).
Of the total $130 million penalty, the company will pay a criminal penalty of nearly $80 million to the DOJ in relation to the FCPA violations, and will pay $43 million in disgorgement and prejudgment interest to the SEC to settle allegations that the company violated the FCPA’s books and records and internal accounting controls provisions. The company will pay over $7.5 million in relation to the commodities scheme, for criminal disgorgement, victim compensation, and a criminal penalty. The DOJ noted that the company received full credit for cooperation with the investigations and for significant remediation.
On December 7, the DOJ announced a settlement with a satellite service provider totaling over $210 million in penalties to be paid to the United States and four states for alleged violations of the TCPA, the FTC Act, and similar state laws. The settlement stems from an action brought by the United States against the satellite company in 2009 asserting that the company initiated millions of unlawful telemarketing calls to consumers and was responsible for millions of calls made by marketers of the company’s products and services. In 2017, a district court awarded the U.S. and the states of California, Illinois, North Carolina, and Ohio $280 million in civil penalties, with a record $168 million going to the federal government (covered by InfoBytes here). On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed liability but vacated and remanded the monetary award for recalculation.
The stipulated judgment requires the satellite company to pay over $200 million in civil penalties, with $126 million going to the U.S. government, nearly $40 million to California, over $6.5 million to Illinois, nearly $14 million to North Carolina, and $17 million to Ohio.
On December 3, the DOJ announced it had entered into a deferred prosecution agreement with the U.S. affiliate of one of the largest energy trading firms in the world, in which the company agreed to pay a combined $135 million in criminal penalties related to two counts of conspiracy to violate the anti-bribery provisions of the FCPA. The agreement also resolves a parallel investigation in Brazil. According to the DOJ, between 2005 and 2014, the company paid millions of dollars in bribes to public officials in Brazil, Ecuador, and Mexico “‘to obtain improper competitive advantages that resulted in significant illicit profits for the company.’” Specifically, the company and its co-conspirators paid more than $8 million in bribes to at least four officials at Brazil’s state-owned and controlled oil company, Petróleo Brasileiro S.A. – Petrobras (Petrobras), “in exchange for receiving confidential Petrobras pricing and competitor information.” The company concealed the bribery scheme “through the use of intermediaries and a fictitious company that facilitated the payments to offshore accounts and, ultimately, to the Petrobras officials.” In another instance, the company bribed at least five additional Petrobras officials in order to receive confidential pricing information used to win fuel oil contracts, whereby “a consultant acting on behalf of [the company] engaged in back-channel negotiations with a Houston-based Petrobras official,” and “ultimately settl[ed] on the pre-arranged price that allowed for bribes to be paid from [the company] to the Petrobras officials.”
Between 2015 and July 2020, the company also engaged in a second bribery conspiracy by offering and paying government officials in Ecuador and Mexico more than $2 million in exchange for business opportunities connected to the purchase and sale of oil products. The company and its co-conspirators—who knew the funds, at least in part, were going towards the bribes—“entered into sham consulting agreements, set up shell companies, created fake invoices for purported consulting services and used alias email accounts to transfer funds to offshore companies involved in the conspiracy.”
DOJ is crediting $45 million of the total criminal penalty against the amount the company will pay to resolve the Brazilian Ministério Público Federal’s investigation into conduct related to the company’s bribery scheme in Brazil. The company and another entity within its group of energy trading firms have also agreed to continue to cooperate with the DOJ in ongoing criminal investigations and prosecutions, and will make enhancements to their compliance programs and report on their implementation for a three-year period.
In a related matter, the company also agreed to disgorge more than $12.7 million and pay an $83 million civil money penalty related to manipulative and deceptive trading activity not covered by the DOJ’s deferred prosecution agreement. Under the order, the civil money penalty will be recognized and offset up to $67 million by the amount paid to the DOJ as part of the deferred prosecution agreement. The CFTC noted that the company’s “fraudulent and manipulative conduct—including conduct relating to foreign corruption—defrauded its counterparties, harmed other market participants, and undermined the integrity of the U.S. and global physical and derivatives oil markets.” This case is the first foreign corruption action brought by the CFTC.
Special Alert: Federal and state authorities take significant actions to address mortgage servicing concerns
On December 7, the Consumer Financial Protection Bureau, Multi-State Mortgage Committee of state mortgage banking regulators, and every state attorney general took actions against a large nonbank mortgage company for alleged violations pertaining to both mortgage origination and servicing practices that took place largely between January 2012 and December 31, 2015. The Special Inspector General for the Troubled Asset Relief Program also provided assistance as part of the government’s efforts. The settlement will result in approximately $85 million in remediation to consumers, the majority of which has been paid, and $6 million in fees and penalties. The Department of Justice, through its U.S. Trustee Program, also reached settlements with this mortgage company, as well as two national banks, pertaining to alleged violations of the bankruptcy code. Those three bankruptcy settlements will result in approximately $117 million of refunds and credits to impacted borrowers.
On October 27, the DOJ announced it had entered into a deferred prosecution agreement with a Chicago-based distilled beverage company to pay over $19 million in criminal penalties related to a conspiracy to violate the “anti-bribery, internal controls, and books and records provisions of the FCPA.” According to the DOJ, from 2006 through the end of the third quarter of 2012, the company’s Indian subsidiary paid bribes to numerous Indian government officials in exchange for the approval of a license to bottle a certain beverage product for sale in India, and to gain or retain general business opportunities in the Indian market. The bribes were authorized by an executive of the company’s Indian subsidiary, but the payments were made through third parties, such as the beverage bottler or distributors. The DOJ’s announcement stated that the company also “agreed with others to fail to implement and maintain an adequate system of internal accounting controls,” which would have helped to detect the subsidiaries’ “longstanding practice of making corrupt payments,” and the company was warned by outside advisors of the “risks associated with improper activities by third parties in India.”
As part of the deferred prosecution agreement, the company agreed to cooperate with the DOJ’s ongoing investigations and prosecutions, to improve its compliance program, and to report to the DOJ on those improvements. The company’s penalty reflected a 10 percent discount off the bottom of the applicable U.S. Sentencing Guidelines due to its cooperation and remediation; however, the DOJ noted that the resolution reflects a number of factors including, among other things, (i) the involvement of a company executive officer; (ii) an ineffective compliance program in place when the misconduct occurred; and (iii) significant delays caused by the company in reaching a timely resolution.
As previously covered by InfoBytes, the company settled related FCPA allegations with the SEC in July 2018 for over $8 million. However, the DOJ did not credit any portion of the SEC penalty because the company “did not seek to coordinate a parallel resolution with the department.”