ENFORCEMENT ACTIONS & STRATEGIES
Thus far in 2018, the DOJ and SEC resolved nine corporate enforcement actions: TLI, Elbit Imaging, Kinross Gold, Dun & Bradstreet, Panasonic, Société Générale, Legg Mason, Beam Suntory, and Credit Suisse.
Consistent with the trends and patterns over the past years, the DOJ apparently deferred to the SEC to bring civil enforcement cases in the less egregious matters, which has resulted in the SEC bringing three enforcement actions in the first part of the year without parallel DOJ actions and typically with lower penalty amounts. From April 30 through the middle of the year, however, the DOJ increased its activity dramatically, bringing four major enforcement actions, only two of which involved a SEC parallel enforcement action.
Of the FCPA enforcement actions against individuals, 2018 has seen fifteen individuals charged by the DOJ (or had charges unsealed), while the SEC has not brought a case against a single individual.
We discuss the corporate enforcement actions from the first half of 2018 followed by the individual enforcement actions in greater detail below.
In the Société Générale matter, the DOJ alleged that between 2004 and 2009, Société Générale paid bribes through a Libyan "broker" in connection with fourteen investments made by Libyan state-owned financial institutions. According to the DOJ, Société Générale sold over a dozen investments and one restructuring to the Libyan state institutions worth a total of approximately $3.66 billion, from which it earned profits of approximately $523 million. In June 2018, the DOJ announced that the bank had entered into a deferred prosecution agreement to resolve both the FCPA conduct described above and unrelated allegations involving LIBOR. As part of the DPA, Société Générale agreed to pay a criminal penalty of $585 million to resolve the FCPA charges. In related proceedings, Société Générale reached a settlement with the Parquet National Financier (PNF) in Paris relating to the alleged Libya corruption scheme, and the DOJ agreed to credit Société Générale for the $292.8 million payment it would make to the PNF. This is the first coordinated resolution with French authorities in a foreign bribery case and represents the latest example of the DOJ entering into coordinated global settlements whereby a large portion of the criminal penalty is paid to another country's government.
In a related enforcement action, the DOJ announced that Legg Mason Inc., a Maryland-based investment management firm, agreed to pay a total of $64.2 million to resolve allegations of the company's participation in the same Libyan bribery scheme. Specifically, according to Legg Mason's admissions, a Legg Mason subsidiary partnered with Société Générale to solicit business from state-owned financial institutions in Libya. As described above, Société Générale paid commissions to a Libyan broker, which benefitted Legg Mason through its relevant subsidiary, which managed funds invested by the Libyan state institutions. The total settlement amount included approximately $32.6 million in criminal penalties and approximately $31.6 million in disgorgement, the latter of which will be credited against any disgorgement paid to other law enforcement authorities in the first year of the agreement. As of the date of publication, the company has not entered into any other agreements with law enforcement authorities.
In Panasonic, the DOJ alleged that Panasonic Avionics Corporation, a subsidiary of multinational electronics company Panasonic Corporation, improperly recorded payments to an executive of a state-owned airline in an unspecified Middle East country in violation of the books-and-records provision of the FCPA. Specifically, the DOJ alleged that during the course of negotiating a lucrative contract with the relevant airline, Panasonic Avionics executives agreed to retain the relevant government official as a consultant, for which he received $875,000 for "little work," although the subsidiary recorded the payments as legitimate consulting expenses. More broadly, the DOJ also alleged that Panasonic Avionics disguised payments to sales agents in Asia who had not passed its compliance due diligence by channeling them through another sales agent. To resolve the charges, Panasonic Avionics agreed to pay $137.4 million pursuant to a deferred prosecution agreement with the DOJ, while Panasonic Corporation agreed to pay $143.2 million in disgorgement and pre-judgment interest to the SEC.
In Dun & Bradstreet, the SEC alleged that two Dun & Bradstreet partners in China made payments to third-party agents, including payments to government officials, to illegally obtain customer data. Without admitting or denying the alleged conduct, Dun & Bradstreet agreed to pay approximately $9.2 million to settle the SEC charges. The same day that the SEC enforcement action was announced, the DOJ issued a letter stating that it declined prosecution consistent with the FCPA Corporate Enforcement Policy. The DOJ's letter specifically listed the company's prompt voluntary self-disclosure, full cooperation, remediation and compliance enhancements, and disgorgement to the SEC. This declination represents the first under the DOJ's Corporate Enforcement Policy, and makes clear that the disgorgement requirement contained in the Policy can be satisfied by such a payment to the SEC, not just to the DOJ.
The facts of the Dun & Bradstreet enforcement are also somewhat unusual: FCPA enforcement actions typically arise out of situations where companies pay bribes to foreign government officials to obtain contracts or favorable regulatory decisions. Here, however, the relevant Chinese joint venture and subsidiary allegedly paid money to government officials and others to obtain data and information about individuals and entities. This unusual factual backdrop highlights the broad range of interactions with government officials that can spawn FCPA enforcement actions and highlights some of the unique risks that service industry companies can face when engaging in business in foreign countries.
The remaining enforcement actions were smaller:
- In TLI, the DOJ alleged that Maryland-based Transport Logistics International, Inc. ("TLI"), which provides services for the transportation of nuclear materials, participated in a scheme that involved the bribery of an official at a subsidiary of Russia's State Atomic Energy Corporation. The company entered into a DPA with the DOJ to resolve the criminal charges and agreed to pay $2 million.
- In Elbit Imaging, the SEC alleged that Elbit Imaging Ltd. and its indirect subsidiary Plaza Centers NV, a real estate developer in Europe, paid approximately $27 million to consultants and sales agents for services related to a real estate development project in Bucharest, Romania. According to the cease-and- desist order, the company made the payments despite the lack of any evidence that the consultants and sales agents actually provided the services they were retained to provide. Furthermore, Elbit and Plaza described the payments in their books and records as legitimate business expenses, even though they may have ultimately been used to make illicit payments to Romanian government officials in connection with a real estate development project in Bucharest. In March 2018, without admitting or denying the facts stated in the cease-and-desist order, Elbit agreed to pay a civil fine of $500,000 to resolve violations of the FCPA's books and records and internal controls provisions.
- The enforcement action against Kinross Gold is the latest example of liability that can arise from mergers and acquisitions. According to the SEC, in 2010, while conducting due diligence prior to acquiring two African companies, Kinross Gold Corporation determined that the previous owner lacked an anti-corruption compliance program and associated internal accounting controls. Nevertheless, it proceeded with the transaction without addressing the deficiencies in a timely manner. Subsequent internal audit reports over several years found that internal controls continued to be inadequate, but Kinross management took no action. As a result, according to the SEC's order, between the acquisition of the subsidiaries in 2010 and at least 2014, Kinross made payments to certain third parties, frequently in connection with government interactions, without reasonable assurances that transactions were consistent with their stated purpose or the prohibition against making improper payments to government officials. As part of a cease-and-desist order, the company agreed to pay a civil penalty of $950,000, and to report to the SEC for a term of one year on the status of the implementation of the company's improved anti-corruption compliance procedures and internal controls.
- In Beam Suntory, the SEC alleged that an Indian subsidiary of the global beverage company used third-party sales promoters and distributors to make illicit payments to government officials from 2006 through 2012. According to the SEC's order, the relevant Indian subsidiary utilized false
invoices to reimburse the third parties, thereby creating false entries in the subsidiary's books and records, which were subsequently incorporated into Beam's books and records. In July 2018, without admitting or denying the facts stated in the cease-and-desist order, Beam agreed pay total penalties of approximately $8.2 million to resolve the SEC's allegations.
Although Société Générale yielded one of the largest FCPA criminal penalties and Panasonic similarly involved large penalties, the majority of the remaining 2018 FCPA enforcement actions have resulted in small corporate penalties. In fact, the Société Générale and Panasonic enforcement actions account for approximately 92% of the total 2018 corporate enforcement penalties to date.
Setting aside these two enforcement actions, the corporate sanctions thus far in 2018 have been relatively modest—ranging from $500,000 to $76.8 million. As a result, while the pure average corporate penalty from 2018 thus far is $114.2 million, when we exclude the Société Générale and Panasonic outliers, the average corporate penalty is $23.1 million.1 This number is significantly lower than the average excluding outliers of $83.4 million from 2017 and $73 million from 2016.
Regardless, we continue to view the median as a more accurate measure of the "average" corporate enforcement penalty. That figure for the 2018 corporate enforcement actions to date is $9.2 million, which is slightly lower but generally in line with that measure from recent years. As we have noted in previous editions of this publication, it is a general trend that FCPA enforcement actions typically range between $10 million and $30 million (excluding the median from 2014, which is an outlier given the low number of enforcement actions in that year).
The 2018 FCPA enforcement activity against individuals has been significantly lower than in past years. The SEC has not brought a single enforcement action against an individual. The DOJ, on the other hand, has brought charges against (or had charges against unsealed) fifteen individuals allegedly involved in schemes that violated the FCPA, but the majority of these charges have been against low-level employees or foreign officials that were involved in enforcement actions brought in recent years (specifically, Och-Ziff, the PDVSA investigation, and Rolls-Royce).
On January 3, 2018, the DOJ unsealed criminal charges against Michael Leslie Cohen, a former executive at Och-Ziff, which had originally been filed in October 2017. The ten count indictment in the Eastern District of New York included counts for conspiracy to commit investment adviser fraud, investment adviser fraud,
conspiracy to commit wire fraud, wire fraud, conspiracy to obstruct justice, obstruction of justice, and making false statements. As we discussed in our January 2018 Trends & Patterns, these charges come on the heels of civil charges filed by the SEC against Cohen in January 2017.
In Lambert, the DOJ obtained an eleven count indictment in the District of Maryland against Mark Lambert, who was a co-owner and executive of TLI (discussed above), alleging a number of FCPA-related criminal violations: (1) one count of conspiracy to violate the anti-bribery provisions of the FCPA and conspiracy to commit wire fraud; (2) seven counts of violating the anti-bribery provisions of the FCPA; two counts of wire fraud; and one count of money laundering. The charges against Lambert mark the latest enforcement related to this alleged bribery scheme: in June 2015, Daren Condrey—co-owner and co-president of TLI with Lambert—pleaded guilty to conspiracy to violate the FCPA and to commit wired fraud. Then, in August 2015, the foreign official involved in the bribery scheme, Vadiim Mikerin, pleaded guilty to conspiracy to commit money laundering as part of the bribery scheme. Finally, as discussed above, the company involved in the bribery scheme (TLI) entered into a DPA in January 2018 to resolve a charge of conspiracy to violate the anti-bribery provisions of the FCPA.
According to the allegations found in the indictment, Lambert and his co-conspirators allegedly agreed to make payments, and caused TLI to make payments, to Vadiim Mikerin, a Director of Techsnabexport ("TENEX")—which supplied uranium and uranium enrichment services to nuclear power companies throughout the world on behalf of the Russian government—to obtain business with TENEX and one of its wholly-owned subsidiaries. According to documents filed in the case against Condrey, the conspirators obtained the money used to pay the bribes by inflating the prices that TLI charged TENEX for services. Lambert has pleaded not guilty to the charges, and as of the date of publication the charges against Lambert are moving forward, and a jury trial is scheduled for April 2019.
Meanwhile, in February 2018 the DOJ brought charges against an additional five individuals allegedly involved in the PDVSA enforcement actions. With the unsealing of these most recent charges, the DOJ has to-date charged fifteen individuals—ten of whom have pleaded guilty—as part of its investigation into bribery at PDVSA. According to the indictment, the five individuals charged were former officials of PDVSA and its subsidiaries or former officials of other Venezuelan government agencies or instrumentalities, and together were known as the "management team." This group allegedly wielded significant influence within PDVSA and allegedly conspired with each other and others to solicit several PDVSA vendors, including U.S.-based vendors, for bribes and kickbacks in exchange for providing assistance to those vendors in connection with their PDVSA business. The indictment further alleges that the co-conspirators then laundered the proceeds of the bribery scheme through a series of complex international financial transactions, including to, from, or through bank accounts in the United States, and, in some instances, laundered the bribe proceeds in the form of real estate transactions and other investments in the United States.
Specifically, charges were brought against the following individuals:
- Luis Carlos De Leon Perez, a dual citizen of the U.S. and Venezuela who according to the indictment was previously employed by instrumentalities of the Venezuelan government, was charged with one count of conspiracy to commit money laundering, four counts of money laundering, and one count of piracy to violate the FCPA.
- Nervis Gerardo Villalobos Cardenas, a Venezuelan citizen who according to the indictment was previously employed by instrumentalities of the Venezuelan government, was charged with one count of conspiracy to commit money laundering, one count of money laundering, and one count of conspiracy to violate the FCPA.
- Cesar David Rincon Godoy, a Venezuelan citizen who was allegedly employed by PDVSA and its subsidiaries, was charged with two counts of conspiracy to commit money laundering and four counts of money laundering. According to the indictment, Cesar Rincon is alleged to be a "foreign official" as that term is defined in the FCPA. In April 2018, Cesar Rincon pleaded guilty to one count of conspiracy to commit money laundering, and on the same day the district court ordered a forfeiture of approximately $7 million. Sentencing is scheduled for December 2018.
- Alejandro Isturiz Chiesa, a Venezuelan citizen who was allegedly employed by a PDVSA subsidiary and is alleged to be a "foreign official," was charged with one count of conspiracy to commit money laundering and five counts of money laundering.
- Rafael Ernesto Reiter Munoz, a Venezuelan citizen who was employed by PDVSA and is alleged to be a "foreign official," was charged with one count of conspiracy to commit money laundering and four counts of money laundering.
Similar to the PDVSA case, the DOJ has also pursued individual charges related to an alleged scheme to bribe officials at Empresa Publica de Hidrocarburos del Ecuador ("PetroEcuador"), the state-owned oil company of Ecuador. According to the allegations in the indictments, from 2013 through 2015, the alleged conspirators made corrupt payments to PetroEcuador to obtain and retain contracts for GalileoEnergy S.A., an Ecuadorian company that provided services in the oil and gas industry. The bribes were allegedly made through a Panamanian shell company and an unnamed intermediary company organized in the British Virgin Islands. According to the indictment, the scheme resulted in bribes of over $3 million being paid to secure contracts worth over $27 million.
Four individuals have now been charged as part of this alleged scheme:
- In October 2017, Marcelo Reyes Lopez was charged with conspiracy to commit money laundering based on violations of the FCPA. In April 2018, Lopez agreed to plead guilty to the one-count indictment.
- In February 2018, Arturo Escobar Dominguez was charged with conspiracy to commit money laundering based on violations of the FCPA. In March 2018, Dominguez agreed to plead guilty to the one-count indictment.
- In April 2018, the DOJ filed an indictment against Frank Roberto Chatburn Ripalda and Jose Larrea, charging Ripalda with conspiracy to violate the anti-bribery provisions of theFCPA, conspiracy to commit money laundering, violating the anti-bribery provisions of the FCPA, and money laundering, while charging Larrea with conspiracy to commit money laundering.
Two FCPA enforcement actions brought against individuals thus far in 2018 involved an alleged scheme to bribe officials at Servicio di Telecomunicacion di Aruba N.V. ("Setar"), a state- owned telecommunications provider in Aruba. Although the information and plea agreement were entered in December 2017, in April 2018 the DOJ announced an enforcement action against Lawrence W. Parker, Jr., a U.S. citizen who resided in Miami, Florida. According to the Information, Parker was an owner, controlling member of, or participant in the operation of five unnamed phone companies headquartered and incorporated in Florida. Parker engaged in a conspiracy to make payments to a product manager at Seta to obtain contracts with the company, and the Information alleged that at least $85,000 in bribes were paid in furtherance of the scheme. In December 2017, Parker pleaded guilty to one count of conspiracy to violate the anti- bribery provisions of the FCPA and one count of conspiracy to commit wire fraud, and in April 2018, Parker was sentenced to thirty-five months in prison to be followed by three years of supervised release. Parker was further ordered to pay restitution of $701,750.
In the same press release, the DOJ announced that an agent of Setar alleged to have been involved in the bribery scheme had pleaded guilty to one count of conspiracy to commit money laundering. Egbert Yvan Ferdinand Koolman, a Dutch citizen residing in Miami, was a product manager with Setar during the relevant time period. According to admissions made as part of his plea agreement, between 2005 and 2016, Koolman operated a money laundering conspiracy from his position as Setar's product manager. This money laundering conspiracy was intended to promote a wire fraud scheme and a corrupt scheme that violated the FCPA. Specifically, Koolman was promised and received bribes from individuals and companies located in the United States and abroad in exchange for using his position at Setar to award lucrative mobile phone and accessory contracts. Koolman pleaded guilty to the charges in April 2018, and in June 2018 was sentenced to 36 months in prison and was ordered to pay approximately $1.3 million in restitution.
The final two FCPA enforcement actions brought against individuals thus far in 2018 relate to the Rolls-Royce corporate and individual enforcement actions brought in 2017. In May 2018, the DOJ brought charges against two additional individuals— Azat Martirossian and Vitalu Leshkov—allegedly involved in that far-reaching bribery scheme. According to the indictment, Petro Contoguris—who was charged in 2017 as part of the Rolls-Royce bribery scheme—and an international engineering consulting firm (referred to as the "Technical Advisor" in the Rolls-Royce papers) devised and executed a scheme with Rolls-Royce executives and employees, whereby Rolls-Royce would pay kickbacks to the Technical Advisor employees and bribes to at least one foreign official in Kazakhstan, and disguise these payments as commissions to Contoguris's company, Gravitas, in exchange for helping Rolls-Royce win contracts with a company constructing a gas pipeline from Kazakhstan to China. Martirossian, a citizen of Armenia, and Vitaly Leshkov, a citizen of Russia, were charged with one count of conspiracy to launder money and ten counts of money laundering.
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