PEPs and the FCPA. Presented to 10 th Puerto Rican Symposium of Anti Money Laundering. February 28 March 1, 2013

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1 PEPs and the FCPA Presented to 10 th Puerto Rican Symposium of Anti Money Laundering February 28 March 1, 2013 by Jay Perlman, Director Global Investigations & Compliance, Navigant

2 Table of Contents I. FCPA Overview 1 II. DOJ/SEC FCPA Resource Guide 4 III. FCPA s overlap with AML 6 IV. AML & FCPA: Key Differences 8 V. Red Flags 9 VI. Risk Mitigation Areas 10 VII. Enforcement Trends 11 i

3 I. FCPA Overview A. The FCPA is an act intended to criminalize and eliminate bribery as a business practice among U.S companies doing business overseas. The two key components of the FCPA are: 1. Anti-bribery Basic prohibition: Cannot make, offer or authorize payments to foreign officials to obtain an improper business advantage. 2. Accounting Requires every issuer to maintain books and records that reflect the company s transactions and assets and implement internal controls over company s transactions and assets 3. Who is subject to the FCPA? The anti-bribery provisions cast a wide net, covering issuers and domestic concerns and their officers, directors, employees, agents, and shareholders; and shareholders; and certain persons and entities, other than issuers and domestic concerns, acting while in the territory of the United States. Congress amended the law in 1998 to, among other things, extend the law to reach certain foreign persons who commit an act in furtherance of a foreign bribe while in the United States. 1 1 Pg. 4, 10: SEC/DOJ Resource Guide 1

4 I. FCPA Overview (cont d) A foreign national acting as an agent of a domestic concern may be liable under the FCPA regardless of whether any activity occurred in the US. This has important ramifications for Latin American businesses as they are not immune to this far-reaching law. 4. How are violators penalized? a. Corporations i. Anti-bribery violations may cost corporations up to a $2 million fine, restitution or twice gain or loss related to bribe ii. Books & Records violations may mean criminal penalties of up to a $25 million fine (per violation) and/or restitution and civil penalties of $10,000 fine per violation (for public companies) b. Individuals i. Anti-bribery violations can require a fine against individuals up to $250,000, 5 years in prison, restitution or twice gain or loss related to bribe ii. Books & records violations by individuals may mean criminal penalties of up to a $5 million fine (per violation), 20 years in prison, and/or restitution and civil fines of $10,000 per violation 2

5 I. FCPA Overview (cont d) 5. Latin American Corruption Risk While Haiti and Venezuela did improve on their rankings from 2011 to 2012, they still both ranked 165 of the 176 countries in Transparency International s Corruption Perceptions Index ( CPI ) for Paraguay and Honduras also both are perceived as some of the most risky nations in the world relative to corruption. (Source 3

6 II. DOJ/SEC FCPA Resource Guide A. The Resource Guide ( The Guide ) is a detailed joint publication by Department of Justice ( DOJ ) and Securities and Exchange Commission ( SEC ), that: 1. Provides information about the FCPA to help facilitate fairer business competition in foreign markets and allow businesses to effectively and efficiently maximize their ability to comply with the FCPA. 2. Compiles and analyzes information about the FCPA, including materials from prior enforcement actions, case law, and DOJ opinion releases. 3. Breaks no new ground, but should serve as helpful resource for compliance professionals. 4

7 II. DOJ/SEC FCPA Resource Guide (cont d) B. The Guide offers the following principles guiding the development and implementation of effective compliance programs: 1. Create a culture of compliance; 2. Set the right tone at the top ; 3. Use a risk-based approach in creating and evaluating compliance programs; 4. Devote adequate resources and ensure independence of compliance function; 5. Test, improve, and train; and 6. Incentivize compliance, investigate potential misconduct, and discipline violations; C. The Guide advises that compliance structures and procedures may mitigate FCPA risks as well as lessen any penalties received for violations, but are not an affirmative defense to prosecution. 5

8 III. FCPA s Overlap with AML A. Within a Bank s anti-money laundering ( AML ) compliance program, there may be areas that senior management can leverage in identifying and mitigating FCPA risk. Areas that are key to sound AML as well as FCPA compliance programs include: 1. Customer Due Diligence ( CDD ) and Enhanced Due Diligence ( EDD ) A Financial Institution must understand its customers and their line of business, anticipated activity and geographical location, among other customer data. 2. Screening for Politically Exposed Persons ( PEPs ) As part of EDD, a Financial Institution will identify if a customer performs public functions for a state and potentially exposure to FCPA related risks. Latin American countries have many state-owned entities in which executives may be considered politically exposed and pose a greater risk of illicit activities. 3. Higher Risk Products and Services Products and services that allow relatively anonymous transactions for large amounts of cash or cash equivalents may be higher risk for facilitating corrupt activities. 6

9 III. FCPA s Overlap with AML 4. Transaction Monitoring A robust FCPA program will involve monitoring a customer s transaction activity, especially those identified as higher risk. Transactions such as large cash deposits or large, round dollar payments may indicate unusual or suspicious activity. 5. SAR Filing A Suspicious Activity Report may be filed on activity relating to FCPA violations just as it will on money laundering ( ML ) or terrorist financing ( TF ) activity. Often, the activity identified will be high risk for FCPA violations as well as being a potential ML/TF red flag. 7

10 IV. AML & FCPA: Key Differences Internal and External Exposure While a Bank must act to mitigate the AML and FCPA exposure its external clients may cause, those responsible for FCPA compliance must also maintain internal controls to ensure that the Bank s payments are within the guidelines set out in the regulatory framework. A Bank s own violations of the FCPA presents its biggest area of exposure to penalties and enforcement actions by the regulators. Typically, in the anti-money laundering context, Financial Institutions monitor client transactions. For FCPA purposes, a Financial Institution must monitor its own transactions. 8

11 V. Red Flags A. PEPs Due diligence relative to both customers and transaction data is a requirement of the FCPA and particular care must be taken with Politically Exposed Persons ( PEPs ). By nature, these individuals tend to be in positions of power and are vulnerable to bribery or corruption related activity. B. Countries known for corrupt business practices Certain countries, such as Venezuela and Haiti, are known for relatively corrupt business practices. An institution must consider the risk in doing business in these jurisdictions. C. Third Party Payments Bribe payments by agents, consultants, and other third parties represent one of the highest risk areas under the FCPA. Latin American companies might be liable for the improper payments of their third parties. They might also be liable when they act as the third parties themselves. 9

12 VI. Risk Mitigation Areas A. Monitor suspense or concentration accounts activity An institution must be aware of all sundry or suspense accounts. These accounts are often used for grease payments and may be utilized in bribery or corrupt activity when left uncontrolled. Strict oversight should be implemented over these types of accounts. B. Risk rank PEPs and monitor transaction activity A Financial Institution, in particular, may incorporate a broad PEP definition, and any customer identified as one should be treated as potentially high risk. C. Use the Corruption Index as part of geographic risk ranking When considering geographic risk throughout an institution, management should consider Transparency International s most recent CPI. This will allow for a risk based approach so that institution can effectively decide on where to focus their business or customer base. D. Internal Training A Financial Institution should provide robust internal FCPA training as well as training for compliance staff to identify any red flags. 10

13 VII. Enforcement Trends A. United States v. Garth Peterson (E.D.N.Y. 2012) Peterson was employed by financial institution in Shanghai and pled guilty to directing corrupt payments to a local government official, violating the books and records provision of the FCPA. The SEC and DOJ did not, however, bring an action against the financial institution due in part to its comprehensive compliance program, which included: 1. Compliance Certification and Training a. Extensive training sessions provided to Peterson and other Asia-based personnel b. Requiring FCPA compliance certification, including by Peterson c. Requiring Peterson and other employees to disclose outside business interests 2. Policies and Procedures a. Regularly-updated internal compliance policies b. Maintaining approval process and strong controls for payments at issue 3. Due Diligence and Transaction Monitoring a. Regular monitoring and auditing to identify illicit payments b. Extensive due diligence on all new business partners The case highlights the clear benefits of having an effective FCPA compliance program. 11

14 VII. Enforcement Trends B. Wal-Mart FCPA Case 1. Overview The New York Times exposed what they claim is Wal-Mart s history of bribing Mexican government officials to dominate that market. The newspaper indicated that top executives repeatedly turned a blind eye to the corruption and ignored the advice of Wal-Mart s general counsel and internal investigator. Wal-Mart's actions violated Mexican anti-bribery laws and the FCPA. 2. Consequences a. The SEC and DOJ opened investigations into the Mexico matter. b. Wal-Mart stock dropped 5% after release of NY Times story on the investigations. c. Wal-Mart spent $99 million in the first three quarters of 2012 on addressing the investigations (complying with subpoenas, defending against shareholder lawsuits, and conducting a review). d. In November, the company disclosed in an SEC filing that it had expanded the internal investigation into potential violations of the FCPA in Mexico to Brazil, China, and India. This case illustrates the need for a robust and transparent FCPA compliance program with a Chief Investigations Officer in place who has complete autonomy and accountability over the program. 12

15 Thank You

16 Questions & Contact Information Jay Perlman, Director Global Investigations & Compliance, Navigant (202)

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