Anti-Corruption: An Overview for I.R. Professionals

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1 Anti-Corruption: An Overview for I.R. Professionals Presented by Stephen Double May 1, 2012 New York City

2 Pop Quiz 2

3 True or False? A publicly owned German company that has stock traded on a U.S. stock exchange is subject to the Foreign Corrupt Practices Act ( FCPA ) A payment by a private U.S. company to an employee of a state-controlled oil company in order to obtain business is prohibited by the FCPA Agreeing to make a donation to a Korean charity to please a non-u.s. government official who regulates a subsidiary of a U.S. company is prohibited by the FCPA 3

4 True or False? Turning a blind eye to corrupt payments made to a non- U.S. government official by third parties acting on one s behalf is prohibited under the FCPA Giving expensive jewelry to the wife of a non-u.s. government official to help get a zoning permit is prohibited under the FCPA 4

5 Foreign Corrupt Practices Act (FCPA) 5

6 Who Is Subject To The FCPA? Any U.S. Citizen or Resident Any U.S. Company Officers, directors, employees, agents and consultants U.S. parent companies may be liable for the acts of their foreign subsidiaries if they authorized, directed, or controlled the prohibited activity, failed to have adequate internal controls to detect improper payments, or violated books and records provisions by failing to detect improper entries Any Foreign Company Listed on a U.S. Exchange ( Issuer ) Companies with securities registered on a national securities exchange and those required to file annual reports with the SEC The officers, directors, employees, and agents of those companies Any Other Company or Person committing an act inside the U.S. in furtherance of a bribe 6

7 FCPA Provisions The FCPA consists of two provisions: Anti-Bribery Provision Books and Records Provision 7

8 FCPA: Anti-Bribery The FCPA makes it unlawful for a person or entity covered by the Act to make knowingly: 1. an offer, payment, promise to pay, or authorization of the payment or giving of 2. money or anything of value 3. corruptly 4. directly or indirectly, to any foreign official, to any foreign political party or official thereof, or to any candidate for foreign political office 5. In order to (a) influence any act or decision of such foreign official, (b) secure any improper advantage or (c) induce such foreign official to influence any act or decision of such government or instrumentality 6. To obtain or retain business for or with, or direct business to, any person 8

9 Knowledge Includes Actual knowledge Awareness or suspicion that an event is likely to occur Avoiding knowledge of corrupt acts through willful blindness FCPA: Anti-Bribery 9

10 FCPA: Anti-Bribery Money or Anything of Value Includes Cash In-kind gifts, services, and entertainment Travel, food, and lodging expenses Sponsorships or donations supported by the government official Promise of future employment Anything else of value 10

11 Foreign Official Includes FCPA: Anti-Bribery " any officer or employee of a foreign government or any department, agency or instrumentality thereof... or any person acting in an official capacity for or on behalf of any such government, department, agency, or instrumentality... Includes employees of state-owned entities and sovereign wealth funds 11

12 FCPA: Anti-Bribery Bribes paid indirectly through others are also unlawful under FCPA Payment of a bribe through a third-party is unlawful Payment of a bribe to a relative, spouse, or other person intending to benefit a non-u.s. government official is unlawful under the FCPA 12

13 Narrow Exceptions to Liability Facilitating payments (very narrow exception) Local law defense (affirmative defense) Reasonable business expense (affirmative defense) Connected to promotion, demonstration, or explanation of products or services or the execution or performance of a contract Expenses are reasonable and bona fide and directly related to business purpose 13

14 FCPA: Record-Keeping The FCPA record-keeping provisions apply to issuers, which include U.S. and foreign companies whose securities are traded on a U.S. exchange and companies required to file reports under the Securities Exchange Act Definition of issuers is sufficiently broad to cover corporations with bonds or American Depository Receipts traded on U.S. markets or stock exchanges Includes entries in the books of subsidiaries that are consolidated into parent s books 14

15 FCPA: Record-Keeping To meet record-keeping requirements, companies must: Make and keep books, records, and accounts, which, in reasonable detail, accurately, and fairly reflect the transactions and dispositions of corporate assets Devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are properly authorized and all amounts are recorded accurately 15

16 Whistleblowers 16

17 Whistleblower Provisions Exchange Act Section 21F applies to all SEC FCPA actions, as well as DOJ FCPA actions based on the whistleblower information Tension: Encourage publication of useful information, while not discouraging employees from internal reporting Must be original information that leads to successful enforcement, provided voluntarily Whistleblower may receive 10%-30% of monetary sanctions for FCPA cases resulting in over $1 million in sanctions Whistleblower can be any member of an organization that is not a lawyer or outside auditor No requirement to report internally first; though employees are incentivized to do so 17

18 Implications of Whistleblower Provisions Extends whistleblower provisions to FCPA context Previous whistleblower provisions only allowed a percentage of false claims recovered from a company, not penalties Changes companies calculus of self-reporting potential FCPA violations 18

19 The UK Bribery Act 19

20 Key Provisions of the UK Bribery Act Came into force in July 1, 2011 The Bribery Act includes four offenses Bribing another person Accepting or requesting a bribe Bribing a foreign official Failure of commercial organizations to prevent bribery The Bribery Act makes it a criminal offense to bribe government officials or private persons 20

21 UK Bribery Act vs. the FCPA Bribery of private individuals Accepting or requesting a bribe Bribery of foreign officials Bribery Act Prohibited Prohibited Prohibited FCPA Not addressed Not addressed Prohibited Facilitation payments Prohibited Not prohibited Failing to keep accurate books and records and maintain internal accounting controls Not addressed Prohibited 21

22 Who Is Subject to the UK Bribery Act? Applies to individuals who are either UK nationals or ordinarily resident in the UK Not limited to nationality Applies to businesses that can be determined as carrying on a business in the UK Low threshold If an organization is incorporated or formed in the UK, or that the organization carries on a business or part of a business in the UK (wherever in the world it may be incorporated or formed) then UK courts will have jurisdiction 22

23 Impact of the UK Bribery Act May require reassessment of business to business interactions May require reassessment of hosting of government officials May require reassessment of compliance procedures to ensure that they are adequate to prevent bribes Supports elimination of facilitation payment exception in corporate policies 23

24 Key Enforcement Trends 24

25 Large criminal fines and civil penalties reaching hundreds of millions of dollars Trend 1: Large Financial Penalties Total FCPA Penalties by Year (in millions) $190 $900 $610 $1,800 $

26 Trend 2: Industry-Wide Investigations Coordinated enforcement activity over the past few years resulting in large fines against more companies Technology and telecommunications (IBM, HP, Alcatel-Lucent, Haiti Teleco, Comverse Technology, Inc., Latin Node, Inc., Veraz Networks, Inc., Magyar Telekom/Deutsche Telekom) Pharmaceutical and medical devices (J&J, Merck & Co. Inc, Eli Lilly and Co., Smith & Nephew) Oil and gas (Panalpina, Bonny Island, Hercules Offshore, Inc.) Sovereign Wealth Funds (Citigroup, Inc., Blackstone Group, Goldman Sachs) 26

27 Trend 3: Increased Prosecution of Non-U.S. Companies Top 10 FCPA Settlements (in millions) Siemens (2008) KBR/Halliburton (2009) BAE (2010) Snamprogetti (2010) Technip (2010) JGC Corporation (2011) Daimler AG (2010) Alcatel-Lucent (2010) Magyar Telekom (2011) Panalpina (2010) $400 $365 $338 $218,80 $185 $137 $95 $81,80 $800 $579 Non-US Companies US Companies 27

28 Trend 4: Increased Prosecution of Individuals Enforcement actions against individuals by the DOJ and SEC:

29 Trend 5: Interpretation of Foreign Official In four recent cases, the courts agreed with the DOJ s expansive interpretation that employees of state-owned entities can qualify as foreign government officials under the FCPA. 29

30 Trend 6: Aggressive Enforcement Tactics African Sting case (2010) 22 defendants in military products industry arrested in massive sting operation, using 150 FBI agents, wiretaps, a cooperating witness, and undercover agents posing as agents of foreign government officials DOJ seeks prison sentences for persons convicted of FCPA offenses Joel Esquenazi, former president of Terra Telecommunications Corporation, sentenced to the longest prison term in an FCPA case: 15 years imprisonment (2011) Lindsey Manufacturing, Inc., executives, and agent, Angela Aguilar, found guilty after jury trial in California (2011) Lindsey was the first company to be tried and convicted on FCPA violations 30

31 Trend 7: Expansive Legal Theories Tenaris S.A. (2011) SEC and DOJ alleged jurisdiction under the FCPA based on a single wire transfer through an intermediary bank in the US Panalpina Word Transport (Holding) Ltd. (2010) Panalpina was charged as an agent of its US-listed customers, Shell Nigeria Exploration and Production Co. Ltd., Tidewater Marine International, Inc., Transocean, Inc., Pride International, Inc., Global SanteFe Corp., and Noble Corp 31

32 Trend 8: Increased International Cooperation Anti-corruption enforcement is increasingly global in nature, as prosecutors advance a global effort to combat corruption Johnson & Johnson (2011) Entered into a US$77 million global settlement with US and UK enforcement agencies J&J cooperated with the US government s investigation and provided information about other companies in the pharmaceutical industry Innospec Inc. (2010) Settled corruption charges with US and UK enforcement agencies, committing to retain a compliance monitor jointly approved by US and UK authorities DOJ, the SEC, the US Treasury Department s Office of Foreign Assets Control ( OFAC ), and the UK Serious Fraud Office ( SFO ) worked together to reach a US$40.2 million global settlement 32

33 Trend 8: Increased International Cooperation (Continued) Corruption investigations can begin in non-us jurisdictions or expand beyond the US Siemens AG (2008) The blockbuster Siemens investigation began in Germany, with Siemens eventually entering into large settlements with the US and German governments BAE Systems (2010) The BAE investigation began in the UK, with BAE ultimately agreeing to settle with DOJ and the SFO 33

34 Trend 9: Continuing Scrutiny of Business Combinations Recent settlements continue to emphasize the importance of due diligence in joint ventures, mergers, and other business combinations Ball Corporation (2011) Settled allegations with SEC that it failed to discover and prevent bribes paid by its recently acquired subsidiary in Argentina to employees of the Argentine government Kraft Foods (2010) Kraft had noted that its preliminary due diligence had found Cadbury s overall state of compliance to be sound However, in certain jurisdictions, there appeared to be facts and circumstances warranting further investigation 34

35 Trend 10: Voluntary Self-Disclosure and Cooperation Disclosures about possible FCPA violations are voluntary but may foster positive relations with enforcement agencies Prosecutors in FCPA cases may take into account positively a company's disclosure of wrongdoing, willingness to cooperate, and pre-existing compliance program DOJ and SEC encourage voluntary disclosure, including through published guidelines 35

36 Key Takeaways For I.R. Professionals 36

37 Key Takeaways For public companies, strong internal compliance goes hand in hand with appropriate disclosure Greater emphasis on self-reporting and timely disclosure of possible FCPA violations Greater whistleblower risks for companies SEC tends to look favorably on companies with strong internal controls and forthright public disclosure Increased focus on non-u.s. companies Don t forget about foreign consolidated subsidiaries Be alert for potential disclosures arising from M&A transactions If you work in the financial services industry, keep in mind the SEC s increasing focus on this sector 37

38 Questions? Thank you Stephen Double Counsel New York, NY 399 Park Avenue New York, New York (fax) 38

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