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On December 6, the DOJ announced that it entered into a deferred prosecution agreement with a Swedish-based telecommunications company, in which the company agreed to pay more than $1 billion in criminal and civil penalties related to alleged violations of the FCPA’s anti-bribery, books and records, and internal control provisions. The company’s Egyptian subsidiary also pleaded guilty in New York federal court to a one-count criminal information that charged it with conspiracy to violate the FCPA’s anti-bribery provisions. The SEC simultaneously announced a resolution with the company. Under the terms of the agreements, the company agreed to pay a criminal fine of more than $520 million to the DOJ, and will cooperate with any ongoing investigations, enhance its compliance program, and be subject to an independent compliance monitor for three years. An additional $540 million in disgorgement and interest will be paid to the SEC. The announcements cited improper payments and accounting practices regarding five countries and various third party agents. The company received partial cooperation credit and a 15 percent criminal fine reduction for (i) “conducting a thorough internal investigation” and “making regular factual presentations to the [D]epartment”; (ii) voluntarily making foreign witnesses available to prosecutors; and (iii) “producing extensive documentation and disclosing some conduct of which the [D]epartment was previously unaware.” Additionally, the DOJ recognized the company’s measures to improve its anti-bribery compliance processes.
On November 22, the DOJ announced that it entered into a deferred prosecution agreement with a South Korean engineering company, in which the company agreed to pay more than $75 million in criminal penalties to resolve an investigation into alleged violations of the FCPA’s anti-bribery provisions. Half of the penalty amount will be paid to the DOJ, and the remaining half will be paid either to Brazilian authorities or also to the United States. According to the DOJ announcement, between 2007 and 2013, the company allegedly paid approximately $20 million in commissions to a Brazilian intermediary, “knowing that portions of the money would be paid as bribes to officials” at Brazil’s state-owned and controlled oil and energy firm. The bribes were allegedly intended to ensure that the state-owned entity entered into a contract to charter a drill ship from a separate Houston-based offshore oil drilling company, which would then be able to purchase that vessel from the Korean company.
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 received partial credit for cooperating with the investigation and taking remedial measures, including (i) enhancing its compliance program; (ii) hiring additional compliance staff; (iii) “implementing enhanced anti-corruption policies and heightened due diligence controls over third party vendors”; (iv) instituting mandatory anti-corruption training; and (v) improving its whistleblower policies.
On November 21, the DOJ updated its FCPA Corporate Enforcement Policy to clarify ways in which companies can voluntarily disclose information in an effort to receive leniency from the Department in foreign bribery situations. First, a company does not need to have a complete picture of a possible violation when it first shares information with the DOJ; rather, the company should “make clear that it is making its disclosure based upon a preliminary investigation.” Next, the agency expects a company to disclose “where the company is aware of relevant evidence not in the company’s possession,” simplifying the requirement which previously called for disclosure of “opportunities for the department to obtain relevant evidence not in the company’s possession.” Finally, in the course of a merger or acquisition “an acquiring company that discloses misconduct may be eligible for a declination, even if aggravating circumstances existed as to the acquired entity.”
As previously covered by InfoBytes, the policy was last amended in March (March 2019 version available here) to, among other things, clarify the Department’s position on the use of ephemeral messaging apps by companies seeking full cooperation credit under the policy.
Jury convicts former French power company executive of multiple FCPA, money laundering and conspiracy offenses
On November 8, the DOJ announced that a jury had returned a guilty verdict against a British national and former French power and transportation company executive who was accused of bribing Indonesian officials to secure a power contract. Following a two-week trial, the jury convicted the former executive on six counts of violating the FCPA, three counts of money laundering, and two counts of conspiracy. As previously covered by InfoBytes, while the French company pleaded guilty in 2014, and three other executives—each of whom worked for the French company’s U.S.-based subsidiary—entered guilty pleas, the trial for the former executive (originally indicted in 2013) was delayed as he challenged the reach of the FCPA. The U.S. Court of Appeals for the Second Circuit held in 2018 that a non-resident foreign national lacking sufficient ties to a U.S. entity could not be charged with conspiring or aiding and abetting something that he could not be directly charged with, because he was “not an agent, employee, officer, director, or shareholder of an American issuer or domestic concern” within the scope of the FCPA’s jurisdictional provision and had not himself committed a crime inside the U.S. The 2nd Circuit also determined, however, that the former executive could still be charged with FCPA offenses, as the DOJ had signaled its intention to prove he “was an agent of a domestic concern,” which would place him “squarely within the terms of the statute.”
According to the DOJ’s press release, it presented evidence at the trial to show that the former executive violated the FCPA by overseeing and supporting the U.S.-based subsidiary’s efforts to win the contract with the bribery scheme, including pressing the U.S. subsidiary to structure the payment terms to a consultant used as an intermediary in the scheme to “get the right influence.” The former executive and his co-conspirators allegedly helped arrange the payment of bribes to Indonesian officials by assisting in the U.S. subsidiary’s retention of two consultants, purportedly to provide legitimate consulting services on behalf of the subsidiary but with the intention of employing them to pay and conceal the bribes. The DOJ observed in its release that the former executive and his co-conspirators were successful in securing the contract from Indonesia’s state-owned and state-controlled electricity company and “subsequently made payments to the consultants for the purpose of bribing the Indonesian officials.”
Sentencing is scheduled for January 31, 2020 in the U.S. District Court for the District of Connecticut.
At the end of September, the SEC announced three settlements resolving claims related to alleged violations of the FCPA.
On September 27, a UK-based bank holding company agreed to pay over $6 million to settle alleged charges that it violated the FCPA by hiring relatives of government officials and other clients in an attempt to secure business in the Asia Pacific-region. According to the SEC, the bank hired more than 100 people connected to foreign government officials or other clients through the bank’s unofficial intern “work experience program,” or as part of its formal internship program, graduate program, or for permanent positions. Employees then created false books and records that concealed the practices and circumvented internal controls in place to prevent the activities. In the administrative order, the SEC ultimately charged violations of the books and records and internal controls provisions of the FCPA. Without admitting or denying wrongdoing, the bank agreed to pay a $1.5 million civil money penalty (CMP) and more than $4.8 million in disgorgement and interest.
In a second administrative order announced the same day, a Canadian fuel technology company agreed to pay over $4.1 million to settle FCPA bribery charges connected to a Chinese government official. The SEC alleged that the company and its former CEO transferred shares of stock in a Chinese joint venture to a Chinese private equity fund, in which the official had a financial stake, in an attempt to secure business and obtain a $3.5 million dividend payment. The SEC noted that the company concealed the identity of the private equity fund in its books and records, as well as in its public filings, by “falsely identifying a different entity as the counterparty to the transaction,” and that the CEO circumvented and falsely certified the sufficiency of the company’s internal accounting controls put in place to prevent such actions. Without admitting or denying wrongdoing, the company and the CEO consented to a cease and desist order covering violations of the anti-bribery, books and records, and internal controls provisions of the FCPA, and agreed to pay a $1.5 million CMP and $120,000 CMP, respectively, and more than $2.5 million in disgorgement and interest.
On September 26, a Wisconsin-based marketing provider agreed to pay nearly $10 million to settle FCPA charges related to bribery schemes in Peru and China. The alleged misconduct included the company’s Peruvian subsidiary paying or promising bribes to Peruvian government officials from at least 2011 to January 2016 in an attempt to secure sales contracts and avoid penalties, while also creating false records to conceal certain transactions with a sanctioned Cuban telecommunications company. The SEC stated that the company’s China-based subsidiary also made improper payments to employees of state owned entities and private customers through sham sales agents. According to the administrative order, the company violated the anti-bribery provisions of the FCPA as well as the books and records and internal controls provisions, including by failing to ensure that its internal accounting controls were sufficient to prevent the alleged bribery schemes in Peru and China. Without admitting or denying wrongdoing, the company consented to a cease and desist order, agreed to pay a $2 million CMP and over $7.8 million in disgorgement and interest, and will, for a one-year period, self-report on its compliance program.
On August 9, the U.S. Court of Appeals for the 2nd Circuit affirmed the conviction of a Chinese real estate developer arising from the alleged bribery of United Nations officials. In affirming the conviction, the court held that the U.S. Supreme Court’s holding in McDonnell v. U.S.—that, in cases brought under the domestic federal anti-bribery statute, the government must show that the bribe was paid in exchange for an “official act”—does not apply to prosecutions under the Foreign Corrupt Practices Act (FCPA) or 18 U.S.C. § 666, a federal anti-corruption law related to federal funds.
In the most recent case, a federal jury convicted the developer of paying bribes and gratuities to United Nations officials in violation of the FCPA and 18 U.S.C. § 666. The developer appealed the conviction and argued, among other things, that the jury should have been instructed that the bribe must have be paid for an “official act,” in light of McDonnell. On appeal, the 2nd Circuit rejected the developer’s arguments, explaining that the FCPA and 18 U.S.C. § 666 target a broader set of bribery goals than the statute at issue in McDonnell. Specifically, the court noted that the FCPA and 18 U.S.C. § 666 prohibit giving anything of value in exchange for specific “quos” that do not include reference to an “official act.” Thus, based on the “textual differences among various bribery statutes,” the appellate court concluded that the “official act” standard does not apply to prosecutions under the FCPA or 18. U.S.C. § 666.
OFAC sanctions corruption network linked to Venezuela’s food subsidy program; DOJ charges two of same individuals for money laundering related to bribery
On July 25, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against two Colombian nationals responsible for “orchestrating a vast corruption network,” which has enabled former President Maduro and his regime “to significantly profit from food imports and distribution in Venezuela.” According to OFAC, the Colombian nationals created a network comprised of shell companies, business partners, and family members—all of whom have also been designated for their involvement in the network—that illicitly profited from their involvement in Venezuela’s food subsidy program as well as other contracts with the Venezuelan government. The sanctioned network—which also included Maduro’s three stepsons—allegedly “laundered hundreds of millions of dollars in corruption proceeds around the world.” As a result of the sanctions, “all property and interests in property of the individuals and entities designated today, and of any entities that are owned, directly or indirectly, 50 percent or more by those individuals or entities, that are in the United States or in the possession or control of U.S. persons are blocked and must be reported to OFAC.” OFAC noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated entities and individuals. OFAC also referred financial institutions to Financial Crimes Enforcement Network advisories FIN-2019-A002, FIN-2017-A006, and FIN-2018-A003 for further information concerning the efforts of Venezuelan government agencies and individuals to use the U.S. financial system and real estate market to launder corrupt proceeds, as well as human rights abuses connected to corrupt foreign political figures and their financial facilitators.
The same day, the DOJ announced charges, pursuant to an indictment filed in the U.S. District Court for the Southern District of Florida, against two of the same sanctioned Colombian nationals for money laundering and conspiracy to commit money laundering. The charges relate to the Colombian nationals’ alleged roles in laundering the proceeds of an illegal bribery scheme from bank accounts located in Venezuela to and through bank accounts located in the United States. The bribery scheme resulted in the transfer of approximately $350 million, and allegedly involved contracts to build low-income housing units and efforts to take advantage of Venezuela’s government-controlled exchange rates through the use of “false and fraudulent import documents for goods and materials.”
On July 22, the DOJ announced an $8.7 million settlement with the Hungarian subsidiary of an American multinational technology company to resolve allegations of bid-rigging and bribery in violation of the FCPA. The SEC simultaneously announced a related resolution with the parent technology company over the operations of subsidiaries in four countries, with the parent company paying an additional $16.5 million.
According to the DOJ announcement, between 2013 and 2015, executives and employees of the Hungarian subsidiary falsely represented to the parent company that discounts were necessary to finalize deals with resellers to sell company licenses to government customers; however, the savings were allegedly used for “corrupt purposes” in violation of the FCPA. The subsidiary entered into a non-prosecution agreement with DOJ, which noted that while the subsidiary did not voluntarily self-disclose the misconduct, it received credit for the company’s “substantial cooperation with the Department’s investigation and for taking extensive remedial measures.” Specifically, the subsidiary terminated four licensing partners and the company implemented an enhanced compliance system and internal controls to address corruption risks.
On July 16, a London jury acquitted three former metal industry supplier executives who had been charged with foreign bribery by the U.K. Serious Fraud Office (SFO). The SFO reportedly failed to prove that the former executives – a managing director, sales head, and project manager – had paid bribes to secure overseas contracts. The acquittal comes three years after the company entered into the SFO’s second-ever deferred prosecution agreement (DPA). The July 2016 DPA resolved, at a corporate level, some of the same bribery allegations that the executives faced at trial, and resulted in the company paying a £6.5 million fine. The company’s identity in the DPA was not publicly known until restrictions were lifted at the conclusion of the trial.
On June 24, two businessmen, Luis Alberto Chacin Haddad and Jesus Ramon Veroes, pleaded guilty in federal court in Miami to conspiracy to violate the FCPA. The charges relate to bribes paid to Venezuelan officials at a state-owned and state-run electricity company in an effort to obtain $60 million in contracts for their Florida-based businesses. Pursuant to their plea agreements, the businessmen will each forfeit at least $5.5 million in profits, as well as Miami-area real estate obtained with the ill-gotten gains. Sentencing is scheduled for September 4.
In addition, on June 27 the Venezuelan officials they allegedly bribed, Luis Alfredo Motta Dominguez (former minister of electrical energy in Venezuela and the head of the company) and Eustiquio Jose Lugo Gomez (former procurement director at the company), were charged by eight-count indictment in the Southern District of Florida. On the same day, the same officials were also sanctioned by OFAC. See related InfoBytes coverage here.
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