United States: Disclosing Bribery Conduct Not An Easy Decision For US Companies

While the US Securities and Exchange Commission's (SEC's ) recent announcement of two non-prosecution agreements (NPAs) with Akamai Technologies, Inc. (Akamai) and Nortek, Inc. (Nortek) in matters involving books and records violations relating to conduct that occurred in China may give some limited insight into how to secure similar resolutions of future investigations, the questions that remain regarding the benefits of voluntary disclosure of an organization's misconduct leave things clear as mud.

First, the good news. The announcements of the NPAs, coupled with the DOJ's letters recording public declinations in these two matters, identify "some" of the factors that can be used to secure a declination under the Department of Justice's (DOJ's) FCPA self-reporting pilot program (Pilot Program). We use the term "some" in describing useful factors because it is not entirely clear from the announcements whether the DOJ's and SEC's lists are exhaustive or simply identify the factors that each was willing to recognize in finalizing these two particular NPAs. These factors, if present in future enforcement actions, may be used by organizations and their counsel to successfully argue that their penalties should be limited, as they were in Akamai and Nortek, to the financial benefit they received from the misconduct.

Still, fundamental questions that could help determine whether a self-disclosure is in the organization's best interests remain. First and foremost among these unanswered questions is whether the DOJ would have gone forward with an action for bribery against the parent companies if there had been evidence of their direct participation in or knowledge of improper payments made to Chinese government officials and related inaccurate accounting records as there allegedly was in the PTC Inc. (PTC) matter from earlier this year. Of nearly equal concern to potential disclosers is how the DOJ determined, in a third recent enforcement action stemming from a self-disclosure, that it would give a subsidiary of Analogic Corporation (Analogic) a much smaller credit for its disclosure of improper payments in Russia based on the DOJ's conclusion that the company had not disclosed all of the relevant facts discovered during an internal investigation. Given these as well as other open issues described below, the decision to voluntarily disclose misconduct remains a very complicated one.

Second, a much easier takeaway. Anti-bribery enforcement activities focusing on China-based conduct, whether initiated in the U.S. or elsewhere, should continue to be top of mind for compliance officers and in-house counsel of companies that do business there. 

Akamai and Nortek follow Pilot Program and Yates Memorandum

The DOJ in April 2016 announced the Pilot Program offering companies a way to mitigate the legal consequences of their voluntary disclosure of bribery conduct through their "fulsome" cooperation with the ensuing government investigation and remediation efforts. The launch of the Pilot Program followed earlier criticism among many in the internal investigations bar and in-house counsel regarding the effects and purposes of the DOJ's September 9, 2015, "Memorandum focusing on Individual Accountability for Corporate Wrongdoing" (the Yates Memorandum). The critics focused on language in the Yates Memorandum obligating the disclosing company to identify the individuals responsible for the misconduct in order to qualify for cooperation credit. The credit can be significant, resulting in a substantial (as much as 50 percent) reduction in the penalty and avoidance of a requirement that the company retain an independent corporate monitor; both of which can be extremely costly to a company. Subsequent guidance in the US Attorney's Manual encouraged DOJ lawyers to use this as leverage to obtain evidence of individual culpability before resolving the corporate case. Perhaps most troubling about this renewed push for disclosure of wrongful conduct by individuals, and the legal and ethical challenges it creates for counsel advising the organization, was the fact that it came at a time when it was still unclear exactly how the cooperation credit would be calculated, much less whether it would even be awarded in all instances of disclosure.

To broadcast their rationales behind the Akamai and Nortek declinations, the DOJ released  letters to the public through media outlets. In Akamai, the DOJ cited the company's (i) disclosure of the misconduct, (ii) thorough investigation and fulsome cooperation, (iii) suspension of the key participant, (iv) termination of the channel partner involved in the misconduct, (v) disciplining of five other employees who could have prevented other violations of the company's policies, and (vi) disgorgement to the SEC of the full amount sought. As for Nortek, the DOJ declination letter cited the company's (i) initial discovery of the misconduct through an internal audit, (ii) prompt voluntary self-disclosure, (iii) thorough investigation of the misconduct, (iv) fulsome cooperation, including identifying all individuals involved in or responsible for the misconduct and providing the DOJ with all facts relating to that misconduct, (v) agreement to cooperate with respect to any ongoing investigations of the individuals, (vi) enhancement of its compliance program and internal accounting controls, (vii) full remediation, including terminating the employment of all five individuals, including two high level executives of the China subsidiary, involved in the misconduct, and (viii) disgorgement to the SEC of the full amount sought.

Any company considering a potential voluntary disclosure should, at the very least, ask whether similar factors will be present in their own situation. The conduct described by the government, as well as the companies' failure to prevent it through appropriate internal controls and accurate accounting, are also useful red flags for companies seeking to prevent and deter such conduct within their organization to look out for.

Akamai factual background:

On June 7, 2016, Massachusetts-based Akamai, an Internet services provider, agreed to disgorge about $72,000 in principal and interest as part of its NPA with the SEC. According to the Statement of Facts attached to the NPA, Akamai's wholly-owned subsidiary, Akamai Beijing Technologies Co., Ltd. (Akamai-China), provided its local Chinese channel partners technical and sales support for content delivery services, which were then resold by the channel partners in China. The Statement explained how Akamai-China was required under China's regulatory system to contract with third-party channel partners to deliver services to end customers. The Statement described one of the critical allegations in the enforcement action this way:

From at least 2013 through 2015, an Akamai-China Regional Sales Manager schemed with an Akamai-China channel partner to bribe employees of three customers, two of which were state-owned, to contract to purchase up to 100 times more network capacity from the channel partner than each Company needed. Ultimately the channel would purchase this capacity from Akamai-China, add a mark-up and sell the capacity to end customers.

The Statement went on to allege that employees of end customers were paid $155,500, including approximately $38,500 in cash to Chinese government officials. Supplementing the cash payments were gifts and entertainment totaling $32,000 that was paid to encourage customers to obtain or retain Akamai-China. The subsidiary did not, according the allegations, record these gifts and entertainment properly, instead listing them as legitimate expenses.

The Statement outlined a series of alleged failed internal accounting controls that included: (i) a lack of due diligence regarding the China-based partners, (ii) failure to proactively exercise audit rights to ensure compliance with anti-bribery policies, (iii) failure to translate anti-bribery and anti-corruption policies into Mandarin, (iv) inadequate employee training on compliance and anti-bribery policies, and (v) lack of effective procedures for reviewing and approving business entertainment.

According to the Statement, Akamai first learned of the conduct in December 2014 when an Akamai-China sales representative complained that a regional sales manager had received improper payments from end customer employees and had made improper payments to end customer employees to secure business. According to the Statement, a few weeks after receiving the complaint, Akamai voluntarily disclosed its investigation to the SEC and the DOJ.

SEC recognizes Akamai's significant remedial activities

The SEC recognized the significant and immediate remedial activities by the company including its placement of the regional sales manager on administrative leave after his interview, terminating the company's relationship with a channel partner, and comprehensive review and enhancement of its compliance program, including ensuring that employees around the globe were receiving adequate training.

Specifically, Akamai (i) implemented comprehensive due diligence processes for channel partners, including engaging an outside consultant to conduct channel partner risk assessments, (ii) strengthened its anticorruption policies, (iii) implemented enhanced compliance monitoring functions and structures, such as establishing a chief compliance officer position supported by a global team of dedicated compliance professionals in Europe, US, and Asia, (iv) provided to its employees around the globe extensive mandatory and language appropriate in-person and on-line training on FCPA and anti-corruption, and (v) enhanced its travel and expense control requirements in China to include requiring more detailed expense descriptions and supporting documentation and appointing an independent reviewer with Chinese-language proficiency to review and approve expense claims.

Nortek factual background

On the same day that the Akamai NPA was announced, the SEC also announced the resolution of its Nortek investigation. According to the Statement attached to the Nortek NPA, the Rhode Island-based company manufactures and sells products for commercial and residential construction, remodeling and enterprise computer markets, including heaters, range hoods, heating, ventilation and air conditioning systems, garage doors and security systems. The Statement outlined the alleged misconduct of Nortek's wholly-owned subsidiary, Linear China, as follows: "From at least 2009 to 2014, Linear China's managing director, accounting manager, customs liaison officer and other employees made or approved improper gifts to local Chinese officials in order to receive preferential treatment, relaxed regulatory oversight, and/or reduced customs duties, taxes and fees." According to the Statement, the payments were widespread, extending into the local government bureaucracy, including the customs, fire, police, labor, health inspection, environmental protection, and telecommunications departments. According to the Statement, "Linear China's improper payments were systematic and went undetected for several years"; they were made every month over a 5-year period and totaled $290,000.

The Statement alleges the following deficiencies in parent company Nortek's internal accounting controls and inaccuracies in its books and records:

As evidenced by Linear China's illicit payments made directly to Chinese officials in the ordinary course of business over many years, Nortek failed to devise and maintain a system of internal controls at Linear China . . . made improper payments from multiple accounts, which Nortek failed to review or test. Nortek failed to notice obvious red flags in Linear China's financial records, including the number and size of Linear China's meals and entertainment expenses. 

The SEC's Statement also notes that Nortek failed to establish procedures to ensure its Linear China employees were trained in anti-corruption compliance. However, the Statement also noted Nortek's audit of Linear China's books and records, which revealed questionable payments to local Chinese officials, and Nortek's internal investigation of the conduct and forensic analysis of Linear China's financial records.

SEC recognizes Nortek's significant remedial activities

The Statement alleges that Nortek took several steps immediately after discovering the misconduct including (i) ending the payments to officials, (ii) terminating participants in the scheme after they were interviewed, (iii) reviewing and revising its compliance program, (iv) initiating mandatory in-person training programs and (v) revising its internal audit schedules to prioritize facilities located in geographic areas associated with a higher incidences of corruption.

What did the SEC mean by "fulsome" cooperation?

If an organization decides to voluntarily disclose misconduct, DOJ and SEC policies condition the granting of cooperation credit on the organization sharing the fruits of its internal investigation with the government. This broadly undefined obligation raises the issue of "how much one has to disclose to get the credit?" The SEC, presumably with the DOJ's sign-off, provides some insight on this issue by enumerating the following actions by Nortek that led the SEC to conclude that Nortek's cooperation was sufficiently "fulsome":  

  1. Sharing the detailed findings of its internal investigation including identifying all improper payments and potential payments made to foreign officials;
  2. Providing summaries of witness interviews;
  3. Effectively segregating, organizing, and presenting the most salient documents to the SEC staff;
  4. Voluntarily translating documents from Chinese into English;
  5. Voluntarily making witnesses, including those in China, available for interviews; and
  6. Conducting a risk assessment to determine whether the improper conduct at Linear China occurred at Nortek's other manufacturing locations in China.

The investigative activities outlined in the Statement should be considered by organizations attempting to convince DOJ and the SEC that a sufficient follow-up investigation was conducted.  But not the sooner had the ink dried on the two NPAs than the DOJ provided further clarification—albeit this time in a negative context—on the issue of how much one has to do to get cooperation credit. 

DOJ's partial credit treatment in Analogic case merits caution

A few weeks after Akamai and Nortek, the DOJ announced an NPA and related $3.4 million penalty resolving an investigation into improper payments made in Russia and elsewhere by MA-based Analogic Corp's Denmark-based subsidiary, BK Medical ApS, a manufacturer of ultrasound equipment. The NPA is noteworthy in part because of the DOJ's decision to discount the subsidiary's cooperation credit, awarding only a 30 percent discount off the bottom of the US Sentencing Guidelines fine range. In the NPA letter to BK Medical, the DOJ explained its rationale:

[T]he Company did not receive full cooperation credit because, in the view of the Offices, the Company's cooperation subsequent to its self-disclosure did not include disclosure of all relevant facts that it learned during the course of its internal investigation; specifically, the Company did not disclose information that was known to the Company and Analogic about the identities of a number of the state-owned entity end-users of the Company's products, and about certain statements given by employees in the course of the internal investigation

Although it is not entirely clear what actually took place, the DOJ's discount of the cooperation credit for BK Medical's failure to disclose all of the relevant facts could be a critical setback in any organization's voluntary disclosure. It should not be lost on anyone that this obligation can be difficult to meet, as nearly every internal investigation that follows an initial disclosure uncovers conduct that was not part of the initial legal risk assessment. The ability to successfully avoid a similar outcome therefore requires serious consideration of your initial decision to disclose, administration of the internal investigation, and the timing of the disclosure. In other words, you need to ask yourself at every point in the process whether the DOJ or the SEC will characterize the disclosure in any way that is not in the best interests of your organization.

Prior enforcement actions may provide a key distinction when compared to the recent NPAs

Given that the DOJ's declination rationales in the letters to Akamai and Nortek took up all of a paragraph, comparing those circumstances to those in another self-disclosed matter that the DOJ resolved earlier this year via an NPA with a criminal penalty, is instructive.

On Feb. 16, 2016, the DOJ and SEC announced the resolutions of parallel FCPA investigations involving Massachusetts-based computer software company PTC and its wholly owned Chinese subsidiaries, Parametric Technology (Shanghai) Software Co. Ltd. and Parametric Technology (Hong Kong) Ltd. (together, PTC China). The resolutions follow PTC China's self-disclosure regarding the payment of Chinese government officials' entertainment and leisure travel. PTC China agreed to pay a $14.5 million criminal penalty to the DOJ and to disgorge $13.6 million (plus pre-judgment interest) to the SEC action (for failing to devise and maintain a system of internal accounting controls).

One notable difference between the PTC outcome and the Akamai and Nortek outcomes was that the PTC entities, despite self-disclosure, received only partial cooperation credit for failing to disclose all relevant facts known to them at the time of the initial disclosure (more about this risk below). A second and more useful distinction between the PTC case and the more recent NPAs was the SEC's finding that PTC, despite being "structured as two entities, . . . conducted business as a single unit."

The SEC explained that PTC exercised direct control over its China-based subsidiary, including global functional reporting to the parent company (senior sales staff reported to employees of the parent, as did other subsidiary employees). Additionally, the SEC noted, parent company employees approved the subsidiary's pricing discounts above certain thresholds, reviewed its contract documents, set business and financial goals for the subsidiary, and set regional sales targets at the subsidiary.

The takeaway from the comparison of PTC, Akamai and Nortek is that a parent's direct involvement in the conduct of its subsidiary could be the tipping point in bribery charges being assessed against the parent. If there is a similar level of involvement between your company and a subsidiary that is suspected of paying bribes, you should, at a minimum, be ready with an answer if the government asks why the parent should not be part of the enforcement action. 

China continues to be an active venue for FCPA enforcement actions

Akamai, Nortek and PTC are part of a continuing trend of U.S. bribery enforcement actions centered on conduct in China; a country with a relatively high number of ongoing internal investigations related to the FCPA. According to the FCPA Blog, approximately 24 companies out of a total of 84 on its Corporate Investigations List identified China in connection with a reported pending investigation as of March 31, 2016. 

In addition to Akamai, Nortek and PTC, there have been four other U.S. enforcement actions in 2016 concerning conduct in China that have focused on accounting records that allegedly inaccurately captured payments to consults, pay-to play schemes, improper gifts and free travel and improper controls that failed to prevent the conduct. These enforcement actions, and the pending internal investigations referenced in the FCPA Blog, evidence that organizations doing business in China are operating in a geography where US law enforcement is experienced and comfortable in policing bribery. Given this strong presence, coupled with China's own extraordinarily high levels of reported domestic investigations and prosecutions since 2013, there are ample reasons for those assigned to deal with this legal risk, particularly in China, to examine Akamai, Nortek, PTC and Analogic as they address their operational exposure. 

Conclusion: Uncertainty about benefits of disclosure should not preclude mitigation of bribery-related risks

The temptation to wait and see whether the DOJ and SEC will clarify some of the open issues associated with voluntary disclosures before taking actions in the best interests of your organization should be avoided, as there is never a good reason not to mitigate the clear legal risks generated by corrupt conduct. Instead, organizations and their counsel should take what guidance they can from Akamai, Nortek, PTC and Analogic regarding how the US enforcement community will evaluate their internal anti-bribery controls and credit their internal investigations, level of disclosure, post-disclosure cooperation and remedial activities, with the understanding that the ultimate decision whether to disclose misconduct is presently not an easy one.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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