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OCC Issues Guidance on "De-Risking" in Foreign Correspondent Banking Relationships
On October 5, the OCC issued Bulletin 2016-32 to provide highly anticipated guidance regarding “de-risking” in foreign correspondent banking relationships. Last week, Comptroller Curry stated that the OCC intended to issue guidance that would reiterate the agency’s “risk management expectations for banks to establish and follow policies and procedures for regularly conducting risk evaluations of their foreign correspondent portfolios.” The guidance outlines “best practices” for banks to use when “conducting periodic reevaluations of the risks related to foreign correspondent accounts and making account retention or termination decisions.” As expected and as previously summarized in BuckleySandler’s Special Alert, these best practices include, but are not limited to, (i) establishing effective governance for overseeing how banks reevaluate risk and monitor recommendations for retaining or terminating foreign correspondent accounts; (ii) communicating regularly to senior management about decisions to retain or terminate foreign correspondent accounts, giving consideration to any adverse impact that closures may have on access to financial services for an entire group of customers or an entire region; (iii) establishing lines of communication with foreign correspondent customers in the context of determining whether to withdraw from a relationship; (iv) considering specific information these customers may provide that may mitigate risks they present; (v) when decisions are made to terminate accounts, providing sufficient time for customers to establish alternative banking relationships, unless any delay would create additional risk; and (vi) maintaining clear audit trails documenting the reasons and methods used for considering account closure.
DOJ Issues Two Declination Letters Requiring Disgorgement
On September 29, the DOJ issued two declination letters concerning suspected FCPA violations, closing their investigations of two Texas-based corporations. The DOJ claims that its investigation of one of the corporations found that the company’s employees paid approximately $500,000 in bribes to Venezuela and China government officials in order to influence those officials’ purchasing decisions and thereby secure approximately $2.7 million in profits. With respect to its investigation of the second corporation, DOJ claims that the company’s China subsidiary provided approximately $45,000 worth of benefits to China government officials to obtain sales which generated profits of approximately $335,000. In connection with the issuance of the declination letters, the companies agreed to the disgorgement of their profits from the sales associated with their purportedly illegal conduct.
The declinations were made pursuant to the FCPA Pilot Program, a one-year program launched in April 2016 to encourage companies to voluntarily self-disclose FCPA-related misconduct, cooperate with DOJ, and make appropriate remediation efforts. The DOJ’s decision to close the investigations was based on a number of factors including the companies’ (i) voluntary disclosures; (ii) thorough internal investigations; (iii) full cooperation in providing DOJ with information about the individuals responsible for the purported misconduct; (iv) agreement to disgorge all profits made from the purported misconduct; (v) enhancement of compliance programs and internal accounting controls; and (vi) remediation in the form of terminating or sanctioning employees responsible for the purported misconduct. These are the fourth and fifth declination letters issued under the Pilot Program.
The disgorgement of profits in connection with the declination letters to the two corporations raises the question of whether such disgorgement may be a prerequisite to obtaining a declination letter under the Pilot Program. Companies that previously received declination letters under the Pilot Program were required to disgorge profits as part of settling related SEC enforcement actions. Past FCPA Scorecard coverage of the Pilot Program and associated declination letters may be found here.
Personal Care and Dietary Supplement Company Settles FCPA Charges Arising from Charitable Donation
On September 21, 2016, the SEC reached a $766,000 settlement with a personal care and dietary supplement company over charges that it violated the internal controls and books and records provisions of the FCPA. The SEC alleged that the company’s China subsidiary made a $150,000 payment to a charity chosen by a Chinese Communist party official in order to obtain that official’s assistance in terminating an on-going provisional agency investigation into the company’s compliance with local rules for direct selling.
The settlement reveals important lessons for U.S. companies regarding oversight of charitable contributions made by their foreign-based subsidiaries. According to the Order, the company’s China subsidiary had informed its U.S. counterpart of the donation but omitted the relationship between the donation, foreign official, and provisional agency investigation. While the U.S. company flagged the FCPA risks a large donation in China may raise, and advised its China subsidiary to consult with outside U.S. legal counsel to assure compliance, the counsel’s advice was ultimately ignored by the subsidiary. The SEC concluded that the company failed to maintain necessary internal controls, specifically with respect to due diligence conducted by its China subsidiary regarding charitable contributions and accounting for such donations.
Notably, this is the second time that the government has charged a company with violating the FCPA based only on a charitable donation to purportedly buy the influence of a foreign official. The settlement illustrates the SEC’s increasing focus on charitable donations in high risk markets.
British Pharmaceutical Company Ordered to Pay $20 Million for Alleged Bribery in China
On September 30, 2016, the SEC reached a $20 million settlement with a British pharmaceutical company arising from the company’s business in China. The SEC alleged that between 2010 and 2013, sales and marketing managers of the company’s China subsidiary made corrupt payments to medical professionals to encourage more prescriptions for the company’s products. The purported corrupt payments included gifts, travel, entertainment, shopping, and cash but were recorded in the company’s books and records as legitimate marketing expenses, speaker fees, medical association payments, and travel and entertainment expenses. Because the medical professionals worked in government-owned hospitals, the SEC considered them to be foreign government officials under the FCPA, and charged the company with violations of the internal controls and recordkeeping provisions of the FCPA.
The $20 million dollar settlement with the SEC follows an almost $490 million sanction ordered in 2014 by a Chinese Court against the company’s Chinese subsidiary based on the same alleged bribery scheme. Five of the company’s managers were also convicted in that action in China and its former country manager was deported. FCPA Scorecard coverage of the Chinese Court order can be found here.
DOJ Teams Up With OFAC to Bring Enforcement against Chinese Front Company
On September 26, the DOJ announced charges against a Chinese trading company and its executives for conspiracy to violate the International Emergency Economic Powers Act (IEEPA), and to defraud the United States; as well as for conspiracy to launder monetary instruments through U.S. financial institutions. The criminal complaint alleges that the company served as a third-party payer, using an illicit network of front companies, financial facilitators, and trade representatives to purchase sugar and fertilizer for a banking entity based in North Korea that OFAC had designated as a Specially Designated National (SDN) in 2009. The civil forfeiture complaint seeks forfeiture of funds spread out across 25 different bank accounts located in China and connected to the affairs of the company. In addition, OFAC imposed sanctions on the company, which is located near the North Korean border and openly worked with the SDN banking entity after 2009.
New York Hedge Fund Enters Into Fourth-Largest FCPA Enforcement Action of All Time
On September 29, a New York-based publicly-traded hedge fund agreed to pay approximately $412 million to the DOJ and SEC to resolve related criminal and civil charges of violating the FCPA in connection with the bribery of high-level government officials across Africa. This is the fourth-largest FCPA enforcement settlement of all time, and the first time a hedge fund has been held accountable for violating the FCPA. In the criminal case, the hedge fund entered into a three-year deferred prosecution agreement (DPA) to resolve charges of conspiracy to violate the FCPA, falsification of books and records, and failure to implement adequate internal controls. The hedge fund agreed to pay a criminal penalty of approximately $213 million, and to retain a compliance monitor for three years. The DPA’s Statement of Facts describes bribes paid to government officials in the Democratic Republic of Congo (Congo) and Libya to help the hedge fund obtain special access and preferential prices for investment opportunities in government controlled-mining sectors in Congo, and secure an investment from the Libyan Investment Authority, Libya’s sovereign wealth fund. In parallel proceedings, the hedge fund agreed to pay $199 million to the SEC and entered into an Administrative Order Instituting Cease-and-Desist Proceedings to settle the FCPA civil charges. The SEC’s allegations covered Libya, Chad, Niger, and the Congo, and alleged that the fund used intermediaries, agents, and business partners to corruptly influence foreign officials. The Order found that the hedge fund executives ignored red flags and corruption risks and permitted the corrupt transactions to proceed. Both the fund’s CEO and CFO agreed to settle related allegations, without admitting or denying the findings. The CEO agreed to pay nearly $2.2 million to the SEC in the settlement, and a penalty will be assessed against the CFO at a future date.
FinCEN Withdraws Findings and Proposed Rulemakings
On February 19, FinCEN withdrew three findings and proposed rulemakings under Section 311 of the USA PATRIOT Act. FinCEN determined that the three entities subject to the proposed rulemakings “no longer pose a money laundering threat to the U.S. financial system.” FinCEN withdrew its findings and proposed rulemakings against (i) a Costa Rica-based financial institution; (ii) a Belarus-based financial institution; and (iii) an Andorra-based financial institution. Regarding the Costa Rica-based institution, FinCEN noted that the DOJ “seized [its] accounts and Internet domain names and charged seven of its principals and employees with money laundering;” the institution stopped functioning after such actions were taken. According to FinCEN, the Belarus-based entity, along with its successor, no longer operates as a foreign financial institution and does not operate in a way that poses a threat to the U.S. financial system. Finally, concerning the third entity, FinCEN noted that Andorran authorities assumed control of the management and operations of the entity, arrested its chief executive officer on money laundering charges, and “are in the final stages of implementing a resolution plan that is isolating the assets, liabilities, and clients of [the entity] that raise money laundering concerns.”
OFAC Authorizes Transactions Involving Certain Belarusian Entities
On October 29, OFAC granted a General License authorizing nine Belarusian entities to make transactions otherwise prohibited by Executive Order 13405, effective October 30. The General License also authorizes transactions with any entities that are owned 50 percent or more by the nine named entities. U.S. persons must report authorized transactions or series of transactions exceeding $10,000 to the U.S. Department of State no later than 15 days after execution. The General License expires on October 31, 2016, unless extended or revoked.