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  • FTC resurrects authority to penalize for-profit education institutions

    Federal Issues

    On October 6, the FTC unanimously resurrected the Penalty Offense Authority under Section 5 of the FTC Act to deter for-profit higher education institutions from engaging in certain unlawful practices. The Commission sent notices to 70 of the nation’s largest for-profit institutions to inform them that the FTC is “cracking down on any false promises they make about their graduates’ job and earnings prospects and other outcomes and will hit violators with significant financial penalties.” The notice outlines several practices previously found to be unfair or deceptive that could lead to civil penalties of up to $43,792 per violation and puts institutions on alert that they could incur significant sanctions should they engage in certain unlawful practices. Commissioner Rohit Chopra, who was recently confirmed as Director of the CFPB, issued a statement commending the initiative, noting that “[u]nder the FTC’s Penalty Offense Authority, the Commission and the Attorney General can seek substantial civil penalties against companies that engage in practices where they had knowledge that the practices were previously determined by a prior Commission order to be illegal.” This is a particularly important tool, Chopra stressed, given the U.S. Supreme Court’s decision in AMG Capital Management, LLC v. FTC, which unanimously held that Section 13(b) of the FTC Act “does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement” (covered by InfoBytes here).

    Federal Issues FTC FCPA Enforcement FTC Act For-Profit College Agency Rule-Making & Guidance Penalty Offense Authority

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  • SEC enters $19 million FCPA settlement with advertising company

    Financial Crimes

    On September 24, the SEC announced that a London-based advertising company agreed to pay over $19 million to settle the SEC’s claims that the company violated the anti-bribery, books and records, and internal accounting controls provisions of the FCPA and the Exchange Act. According to the SEC, the company “through intermediaries, paid as much as a million dollars in bribes to Indian officials to obtain and retain government business, resulting in over $5 million in net profit from 2015 – 2017.” In addition, the company allegedly benefited from other illicit schemes at its subsidiaries such as: (i) “a subsidiary in China making unjustified payments to a vendor in connection with a Chinese tax audit, resulting in significant tax savings to [the company’s subsidiary]”; (ii) “a subsidiary in Brazil making improper payments to purported vendors in connection with government contracts in 2016-2018”; and (iii) “in 2013, a Peruvian subsidiary funneling funds through other [of the company’s] entities to disguise the source of funding for a political campaign in Peru.” The SEC further alleged that the company “failed to devise and maintain a sufficient system of internal accounting controls necessary to detect and prevent the bribe payments at this Indian subsidiary or properly account for the true nature of payments and income at all four subsidiaries.”

    The SEC alleged that the company had knowledge of significant red flags connected to the China subsidiary and its CEO through an internal audit in 2017, which found that the China subsidiary was employing tax avoidance schemes and other significant violations of the company’s internal accounting controls. Then in 2018, a China subsidiary employee informed a regional location officer and the company’s regional tax director in China that the China subsidiary was in the midst of a tax audit and its management may face criminal charges for its tax avoidance schemes. The SEC also alleged that despite a policy that prohibited its companies from paying third parties to assist in obtaining or retaining government contracts without the company’s approval, the “Brazil Subsidiary made improper payments to vendors in connection with securing government contracts at [Brazilian CEO’s] direction.” In respect to the Peruvian subsidy, the SEC alleged that the company “was unjustly enriched by $291,935 as a result of Peru Subsidiary acting as a conduit for a bribery scheme.”

    In entering the administrative order, the SEC considered the company’s cooperation and remedial efforts. Without admitting or denying wrongdoing, the company consented to a cease and desist order, and agreed to pay a $8 million civil money penalty and approximately $11.2 million in disgorgement and prejudgment interest.

    Financial Crimes Securities SEC FCPA Bribery Of Interest to Non-US Persons

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  • Global engineering company subsidiary agrees to $43 million FCPA settlement

    Financial Crimes

    On June 25, the DOJ entered into a deferred prosecution agreement (DPA) with the subsidiary of a UK-based global engineering company, in which the subsidiary agreed to pay a fine of approximately $18.3 million related to a conspiracy to violate the FCPA’s anti-bribery provisions. Together with resolutions by a related subsidiary with the SEC, and various foreign authorities, the total resolution will reach over $43 million.

    According to the DOJ, between 2011 and 2014, the subsidiary participated in a scheme to bribe officials in Brazil to win an approximately $190 million contract from Petrobras to design a gas-to-chemicals complex in the country. The DOJ stated that the subsidiary admitted to paying bribes in Brazil to win the contract, which involved the participation of an Italian sales agent affiliated with a Monaco-based intermediary company. The DOJ further noted that the subsidiary “took acts in furtherance of the scheme while located in New York and Texas, and earned at least $12.9 million in profits from the corruptly obtained business.”

    As part of the DPA, the subsidiary agreed to cooperate with the DOJ’s ongoing or future investigations, to improve its compliance program, and to report to the DOJ on those improvements. The subsidiary’s criminal penalty reflected a 25 percent discount off the bottom of the applicable U.S. Sentencing Guidelines due largely to its cooperation and remediation. The DOJ noted that in addition to cooperation and remediation the resolution reflects a number of factors including, (i) the subsidiary’s “failure to voluntarily and timely disclose the conduct that triggered the investigation”; and (ii) “the nature and seriousness of the offence, which spanned multiple years and involved a high-level executive.”

    The SEC simultaneously announced a resolution of a related matter, in which a related subsidiary consented to a cease-and-desist order finding violations of the FCPA’s anti-bribery, books and records, and internal accounting controls provisions. According to the SEC, the subsidiary paid approximately $1.1 million in bribes to obtain the Brazilian contract. Under the terms of the order, the subsidiary agreed to pay $22.7 million in disgorgement and prejudgment interest, in which up to $12.6 million will be offset by disgorgement paid to foreign authorities. 

    In related proceedings, the subsidiary received provisional court approval for a settlement with the UK’s Serious Fraud Office and settled with several Brazilian authorities. Under the terms of the DPA, the DOJ will credit up to approximately $10.7 million of the criminal penalty to payments the subsidiary makes to the SFO and to Brazilian authorities.

    Financial Crimes SEC DOJ FCPA Bribery UK Of Interest to Non-US Persons Brazil

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  • Multi-national bank settles FCPA and commodities fraud charges for $130 million

    Financial Crimes

    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.

    Financial Crimes FCPA DOJ CFTC SEC Enforcement Bribery

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  • Energy firm's U.S. affiliate agrees to pay $135 million to settle FCPA violations with CFTC and DOJ

    Financial Crimes

    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.

    Financial Crimes FCPA DOJ CFTC Bribery Of Interest to Non-US Persons

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  • Distilled beverage company settles FCPA charges for $19 million

    Financial Crimes

    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.”

    Financial Crimes FCPA Enforcement DOJ Bribery

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  • Global financial institution pays $2.9 billion to settle Malaysian FCPA conspiracy and bribery charges

    Financial Crimes

    On October 22, the DOJ announced that it entered into a deferred prosecution agreement with a global financial institution headquartered in New York (the company), in which the company agreed to pay a criminal fine of over $2.9 billion related to violations of the FCPA’s anti-bribery provisions. The company’s Malaysian subsidiary also pleaded guilty to one count of conspiracy to violate the anti-bribery provisions of the FCPA.

    According to the DOJ, between 2009 and 2014, the company participated in a scheme to pay over $1.6 billion in bribes, directly and indirectly, to Malaysian and Abu Dhabi officials to obtain business, including a role in underwriting approximately $6.5 billion in three bond deals for a Malaysian sovereign wealth fund regarding energy development  (previous InfoBytes coverage on the charges available here). The DOJ stated that the company admitted to engaging in the scheme through certain employees and agents, including (i) the company’s former Southeast Asia Chairman and managing director, who pleaded guilty in 2018 to conspiring to launder money and to violate the FCPA (covered by InfoBytes here); (ii) a former managing director and head of investment banking for the company’s Malaysian subsidiary, who was charged and subsequently extradited to the U.S. in 2019 and is scheduled to stand trial in March 2021 for conspiring to launder money and to violate the FCPA (covered by InfoBytes here); and (iii) a former executive who held leadership positions in Asia. The company admitted that their former employees and agents conspired with a Malaysian financier (who was indicted in 2018, covered by InfoBytes here) to bribe officials involved in the strategic development initiative by using funds diverted and misappropriated from bond offerings underwritten by the company. The employees and financer also retained a portion of the diverted funds for themselves. The company admitted that it did not take significant steps to ensure the Malaysian financier was not involved in the bond transactions even though they were aware his involvement posed “significant risk,” and the company ignored or nominally addressed the “significant red flags” raised during the due diligence process. The company received approximately $606 million in fees and revenue as a result of the scheme.

    The company’s $2.9 billion criminal penalty and disgorgement includes $1.6 billion in payments with respect to separate resolutions with foreign authorities in the United Kingdom, Singapore, Malaysia, and other domestic authorities in the U.S., including $154 million to the Federal Reserve, over $400 million to the SEC, and $150 million to the New York Department of Financial Services.

    Financial Crimes FCPA DOJ SEC NYDFS State Issues Enforcement Bribery Anti-Money Laundering

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  • Brazilian investment company agrees to pay over $284 million to settle FCPA violations

    Financial Crimes

    On October 14, the DOJ announced it had entered into a plea agreement with a Brazil-based investment company that owns companies primarily involved in the meat and agricultural business, in which the company agreed to pay a criminal penalty of over $256 million related to violations of the FCPA’s anti-bribery provisions. According to the DOJ, between 2005 and 2017, to execute the bribery scheme in Brazil, the company “conspired with others to violate the FCPA by paying bribes to Brazilian government officials in order to ensure that Brazilian state-owned and state-controlled banks would enter into debt and equity financing transactions with [the company and company]-owned entities, as well as to obtain approval for a merger from a Brazilian state-owned and state-controlled pension fund.” Specifically, between 2005 and 2014, the company paid or promised more than $148 million in bribes to high-level Brazilian government officials, in exchange for receiving hundreds of millions of dollars in financing from a Brazilian state-owned and state-controlled bank. In another instance, the company paid more than $4.6 million in bribes to a high-ranking executive of a Brazilian state-controlled pension fund in exchange for the fund’s approval of a significant merger that benefited the company. The company also paid approximately $25 million in bribes to a high-level Brazilian government official in order to obtain hundreds of millions of dollars of financing from a different Brazilian state-owned and state-controlled bank. Company executives also “used New York-based bank accounts to facilitate the bribery scheme and to make corrupt payments, purchased and transferred a Manhattan apartment as a bribe, and met in the United States to discuss and further aspects of the illegal scheme.”

    The announcement noted that the company did not voluntarily disclose the violations but still received partial credit and a 10 percent reduction off the U.S. Sentencing Guidelines fine range for its remediation and cooperation with the DOJ’s investigation. Under the terms of the plea agreement, the company will pay the U.S. approximately $128.2 million of the $256 million criminal penalty. The remaining portion will be offset by $128.2 million in penalties the company will pay pursuant to a resolution with the Brazilian authorities. The company also agreed to continue to cooperate with the DOJ in any ongoing or future criminal investigations, and will enhance its compliance program, and report on the implementation of its enhanced compliance program for a three-year period.

    The SEC simultaneously announced a resolution in a related matter with the company, along with a majority-owned subsidiary and two Brazilian nationals who own the company and the subsidiary. According to the SEC, the Brazilian nationals engaged in a bribery scheme to facilitate the subsidiary’s acquisition of a U.S. food corporation. The SEC charged the two companies and individuals with violations of the books and records and internal accounting provisions of the FCPA. Under the terms of the cease and desist order, the subsidiary must pay approximately $27 million in disgorgement and the two Brazilian nationals are required to each pay civil penalties of $550,000. All parties also agreed to self-report on the status of certain remedial measures for a three-year period.

    Financial Crimes FCPA SEC DOJ Bribery Of Interest to Non-US Persons

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  • Asphalt company agrees to pay over $16 million to settle FCPA charges

    Financial Crimes

    On September 22, the DOJ announced that a Florida-based asphalt company pleaded guilty to conspiracy to violate the anti-bribery provisions of the FCPA, agreeing to pay a $16.6 million criminal fine to resolve the charges. According to the information filed in the U.S. District Court for the Eastern District of New York, the company and its affiliates bribed foreign officials in Brazil, Venezuela, and Ecuador with millions of dollars in order to “obtain contracts to purchase or sell asphalt to the countries’ state-owned and state-controlled oil companies, in violation of the FCPA.” Between 2010 and 2015, to execute the bribery scheme in Brazil, the company entered into fake consulting agreements with intermediaries and sent international wires from company bank accounts to offshore bank accounts controlled by the bribe intermediaries. The intermediaries would then pay bribes to Brazilian government officials on the company’s behalf. In Venezuela, between 2012 and 2018, the company used similar fake consulting agreements to bribe Petróleos de Venezuela, S.A. (PDVSA) officials and used code names to hide the names of PDVSA officials in emails and texts. Lastly, in 2014, the company again used similar sham consulting arrangements to bribe Ecuador’s state-owned oil company to secure a contract to supply asphalt.

    The announcement notes that the DOJ recently unsealed charges and guilty pleas of five individuals involved in the bribery scheme, including a company senior executive, a company trader, two bribe intermediaries, and a former PDVSA official. Additionally, the announcement states that a different company trader pleaded guilty in 2017 for his role in the scheme and a pending criminal complaint against a former PDVSA official was also recently unsealed in federal court.

    Financial Crimes DOJ FCPA Of Interest to Non-US Persons Bribery Petroleos de Venezuela

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  • Nutrition company settles DOJ, SEC FCPA charges for over $123 million

    Financial Crimes

    On August 28, the DOJ and the U.S. Attorney’s Office for the Southern District of New York announced (see here and here) they had entered into a deferred prosecution agreement with a multinational nutrition company headquartered in Los Angeles, in which the company agreed to pay a criminal fine of over $55.7 million related to violations of the FCPA’s books and records provisions. According to the DOJ, the company “knowingly and willfully conspired with others in a scheme to falsify its books and records and provide corrupt payments and benefits to Chinese government officials.” Between 2007 and 2016, the company’s books showed that its Chinese subsidiary reimbursed its employees “more than $25 million for entertaining and giving gifts to Chinese government officials and Chinese media personnel. . ., some of which was used for improper purposes,” which the DOJ said was part of a scheme to obtain, retain, and increase business in China and remove negative media reports about the subsidiary. The payments were used to obtain and retain “certain direct selling licenses for its wholly-owned subsidiaries in China” and to “improperly influenc[e] certain Chinese governmental investigations into [the subsidiary’s] compliance with Chinese laws,” as well as to influence state-owned or controlled media.

    As part of the deferred prosecution agreement, the company agreed to cooperate with the DOJ’s ongoing or future criminal investigations and to enhance its compliance program. The company received credit for cooperating with the investigation and taking remedial measures such as “terminating and disciplining individuals who orchestrated the misconduct, adopting heightened controls and anti-corruption protocols, and significantly increasing the resources devoted to compliance.”

    The SEC simultaneously announced a resolution in which the company agreed to pay over $58.6 million in disgorgement and more than $8.6 million in prejudgment interest to settle allegations that the company violated the FCPA’s books and records and internal accounting controls provisions.

    Financial Crimes DOJ SEC FCPA Of Interest to Non-US Persons

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