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Authorizing Improper Payments … You Can’t Do That Either!

The FCPA’s anti-bribery provisions prohibit one from offering to pay, paying, or promising to pay “anything of value” to a “foreign official” to “obtain or retain business.”

As highlighted by the SEC’s recent settled enforcement action against Oscar Meza (the former Director of Asia-Pacific Sales for Faro Technologies, Inc.), the anti-bribery provisions also prohibit one from “authorizing” such payments or offer of payments as well.

According to an SEC complaint (see here), this is exactly what Meza did when the company’s new China Country Manager requested permission to “do business the Chinese way,” a term, the SEC alleges, Meza understood to mean that the Country Manager was requesting permission to pay kickbacks and other things of value to potential Chinese customers in order to obtain sales contracts.

The SEC’s complaint alleges that Meza’s authorizations resulted in Faro-China’s payment of approximately $450,000 in improper payments to … you guessed it …”employees of Chinese state-owned companies.” (see para. 12). According to the complaint, not only did Meza authorize these payments, but he also instructed Faro-China’s staff to alter account entries to conceal the true nature of the payments. (see paras 15-16). Further, in language sure to make any defense lawyer cringe, Meza allegedly sent an e-mail to the Country Manager lamenting that “someone will notice [the payments] one day and we may all be in trouble.” (para 14).

Based on the above conduct, the SEC charged Meza with violating the FCPA’s anti-bribery provisions and books and records and internal control provisions, and aiding and abetting Faro’s violations of these same provisions.

Without admitting or denying the SEC’s allegations, Meza consented to entry of a final judgment enjoining him from violating the FCPA and aiding and abetting such violations. According to the SEC release (see here) Meza was ordered to pay a $30,000 civil penalty as well as approximately $27,000 in disgorgement and pre-judgment interest (a figure no doubt attributed to the fact that Meza received, in addition to a base salary, a sales commission based on the value of sales contracts awarded to Faro-China – including contracts with Chinese government-owned companies).

This is not the first time FCPA followers have heard about Faro Technologies or the above factual scenario. In June 2008, the company (based on the same core set of facts as above) (i) agreed to a DOJ non-prosecution agreement and paid a $1.1 criminal penalty (see here); and (ii) consented to the entry of an SEC cease and desist order and agreed to pay $1.85 million in disgorgement and pre-judgment interest (see here).

What Will September Bring?

September is a great month. Evenings are crisp and cool, the leaves begin to change, college football returns to campus, and in-season honey crisp apples are widely available!

September is also the end of the government’s fiscal year and, because of this, it tends to be an active FCPA enforcement month. Although September 2008 was a bit slow, September 2007 saw the following enforcement actions: Immucor, Inc., Bristow Group, Inc., Electronic Data Systems Corp., and Paradigm B.V.

The Paradigm action (see here) is one of my favorite for FCPA training purposes in that the action covers a wide range of conduct (use of companies and agents without adequate due diligence, things of value such as sightseeing trips and cash payments for shopping, etc.) in several different countries (Kazakhstan, China, Mexico, Nigeria, and Indonesia).

So while you are cheering on your favorite team this September and enjoying Fall’s harvest, don’t forget about the FCPA as September could be a big month given reports of the numerous cases on enforcement officials’ desks.

More On Control Person (And Similar Theories of Liability) / The National Law Journal (see here) recently ran an interesting Q&A with the former Assistant Chief of the DOJ Fraud Section regarding the recent Nature’s Sunshine Products Inc. (“NSP”) enforcement action (see here for my prior post). While the NSP enforcement action may well be the first FCPA enforcement action in which the SEC charged a corporate executive with an FCPA violation under a Section 20(a) “control person” theory of liability, the SEC has previously charged corporate executives under other indirect theories including aiding and abetting a company’s FCPA violations by invoking Section 20(e).

For instance, in 2007, the SEC charged Monty Fu (the founder and, at various times, the Chief Executive Officer and Chairman of the Board of Syncor International Corporation) with aiding and abetting Syncor’s FCPA books and records and internal control violations.

The evidence against Fu?

As alleged in the SEC complaint (see here), “…Fu had the authority to maintain compliance with existing internal controls, and to implement additional internal controls designed to comply with the FCPA’s books and records and internal controls provisions, YET FAILED TO DO SO.” (see para. 2, emphasis added).

In charging Fu both with direct violations of the FCPA’s books and records and internal control provisions (albeit by alleging in the alternative that Fu knew or was reckless in not knowing that the problematic payments were improperly recorded on the company’s books and records) and with aiding and abetting Syncor’s violations, the SEC alleged that Fu “knowingly failed to implement a system of internal accounting controls sufficient to provide reasonable assurance that transactions were recorded in Syncor’s books and records” in accordance with the FCPA (see para 22). As a result, the SEC charged that Fu “knowingly provided substantial assistance to Syncor” in connection with its violations (see para’s 28 and 33).

Whether the SEC invokes section 20(a) or 20(e), the FCPA enforcement trend is clearly greater scrutiny of corporate executives and a greater SEC expectation that corporate executives play a meaningful role in ensuring enterprise-wide FCPA compliance.

In other words, if you are an executive of an issuer and you don’t know what the acronym FCPA stands for, you better get educated.

FCPA Enforcement … It’s More Than Just Suitcases Full of Cash to Government Officials

When conducting FCPA training, one of the first things I like to do is immediately dispel the notion that the FCPA only applies to suitcase full of cash to a government official types of situations. While the FCPA does indeed apply to such egregious situations, the FCPA (and certainly DOJ/SEC’s interpretation of the statute) applies to a wide range of other – seemingly less culpable – conduct as well.

My future FCPA training slides will certainly include the recent Control Components Inc. (“CCI”) FCPA enforcement action as it clearly demonstrates the broadness of FCPA enforcement.

First, the big picture.

As described in a recent DOJ release (see here), CCI pleaded guilty to a three-count criminal information charging two counts of violating the FCPA and one count of violating the Travel Act in connection with a “decade-long scheme to secure contracts in approximately 36 countries by paying bribes to officials and employees of various foreign state-owned companies as well as foreign and domestic private companies.”

Pursuant to the plea agreement, CCI agreed to pay a criminal fine of $18.2 million, serve a three-year term of organizational probation and adopt a host of other measures common in FCPA settlements such as create, implement and maintain an anti-bribery compliance program and retain an independent compliance monitor.

The CCI enforcement action demonstrates the broadness of FCPA enforcement in at least two respects: (i) the “foreign official” element; and (ii) the “anything of value” element.

“Foreign Official”

As to the “foreign official” element, para 5 of the Indictment is the key paragraph. It states as follows:

“Defendant CCI’s state-owned customers included, but were not limited to, Jiangsu Nuclear Power Corporation (China), Guohua Electric Power (China), China Petroleum Materials and Equipment Corporation, PetroChina, Dongfang Electric Corporation (China), China National Offshore Oil Company, Korea Hydro and Nuclear Power, Petronas (Malaysia), and National Petroleum Construction Company (United Arab Emirates). Each of these state-owned entities was a department, agency, or instrumentality of a foreign government, within the meaning of the FCPA, Title 15, United States Code, Section 78dd-2(h)(2)(A). The officers and employees of these entities, including but not limited to the Vice-Presidents, Engineering Managers, General Managers, Procurement Managers, and Purchasing Officers, were “foreign officials” within the meaning of the FCPA, Title 15, United States Code, Section 78dd-2(h)(2)(A).

As I’ve stated before in this forum (see here) and likely will in the future until this legal issue is decided by a court, DOJ’s position that employees of state-owned companies, regardless of position, are “foreign officials” under the FCPA is an unchallenged and untested legal theory – and one I believe is ripe for challenge.

Even if DOJ’s position were to be upheld by a court, those subject to the FCPA could certainly benefit from some clarity as to what DOJ considers to be a state-owned entity. Instead, in the CCI Information (and countless others) all that is there is a mere conclusory statement that each of the relevant companies are “state-owned entities” (see para 5).

What attributes of, for instance, Guohua Electric Power, make it a state-owned entity? I’ve long been curious as to what extent of investigation or discovery DOJ undertakes before it concludes that a company is a state-owned entity? If anyone has insight into this issue, please do share.

Also interesting to note is that even though para 6 of the Information states that CCI, through its former officers and employees, made corrupt payments to officers and employees of “numerous state-owned” customers around the world for the purpose of assisting in obtaining or retaining business for CCI, the Information charges only two FCPA violations.

Count two concerns payments to secure a contract with China National Offshore Oil Company and Count three concerns payments to secure a contract with Korean Hydro and Nuclear Power.

Presumably DOJ did not have sufficient evidence to support other FCPA counts as to CCI’s alleged payments to the other “numerous state-owned” customers, including the others specifically listed in para. 5 of the Information.

So why would a company such as CCI plead guilty to violating the FCPA when the “foreign officials” it allegedly bribed are “foreign officials” only under DOJ’s untested and unchallenged legal theory?

That is a good question, but I suspect it has to do with the fact that companies are in the business of making money and not in the business of setting legal precedent. With a settlement comes certainty, whereas with litigation comes uncertainty.

“Anything of Value”

As to the “anything of value” element, the Information lists the following “things of value” given by CCI, directly or indirectly to “foreign officials” – “overseas holidays to places such as Disneyland and Las Vegas” (para 19); “extravagant vacations” with the following expenses “first-class airfare to destinations such as Hawaii, five-star hotel accommodations, charter boat trips, and similar luxuries” (para 20); “college tuition” [for] the children of at least two executives” at CCI’s state-owned customers (para 20); “lavish sales events” including CCI payment of “hotel costs, meals, green fees for golf, and travel expenses” (para 21); and “expensive gifts” (para 21).

What do all these things have in common? They are not “suitcases full of cash” yet still “things of value” under the FCPA.

This is not the first time FCPA followers have heard of CCI and it is likely not the last time either. As described in the DOJ release, two former CCI executives (Mario Covino and Richard Morlok) have already pleaded guilty to conspiracy to violate the FCPA (see here and here). In addition, six former CCI executives (Stuart Carson, Hong (Rose) Carson, Paul Cosgrove, David Edmonds, Flavio Ricotti, and Han Yong Kim) were criminally indicted in April 2009 on charges of, among other things, violating the FCPA (see here).

SEC To Launch “Specialized Unit” Devoted to FCPA

Robert Khuzami, the SEC’s Director of the Division of Enforcement, spoke this week to the New York City Bar Association (see here for text of his speech).

During his speech, Khuzami announced that the SEC will be creating five “national specialized units dedicated to particular highly specialized and complex areas of securities law.”

One of the units will be an FCPA unit. Here is what Khuzami had to say:

“The Foreign Corrupt Practices Act unit will focus on new and proactive approaches to identifying violations of the Foreign Corrupt Practice Act, which prohibits U.S. companies from bribing foreign officials for government contracts and other business. While we have been active in this area, more needs to be done, including being more proactive in investigations, working more closely with our foreign counterparts, and taking a more global approach to these violations.”

Unlike the DOJ which has historically centralized all FCPA prosecutions at “main Justice” in DC, the SEC has traditionally given its regional offices the authority to independently prosecute FCPA cases. With Khuzami’s announcement, change appears to be in the works and it will be interesting to see whether this new approach will yield any noticeable differences in SEC prosecution of FCPA offenses.

During the speech, Khuzami also announced that the SEC is working on other “initiatives” – two of which I highlight as being of particular interest to FCPA followers.

First, the SEC is seeking to create a “Seaboard” for individuals, “a public policy statement that will set forth standards to evaluate cooperation by individuals in enforcement actions” as Khuzami explained. All SEC enforcement lawyers have committed to memory the original “Seaboard Report” (see here) – the factors the SEC will consider when deciding whether to pursue a corporate enforcement action – and it appears that additional required reading may soon be available.

Second, and seemingly taking a page from the DOJ’s FCPA playbook, Khuzami announced that the Division of Enforcement “will be prepared to recommend to the Commission that the SEC enter into Deferred Prosecution Agreements, in which [Division of Enforcement] agree[s] in the appropriate case to forego an enforcement action against an individual or entity subject to certain terms, including full cooperation, a waiver of statutes of limitations, and compliance with certain undertakings.”

“New and proactive” enforcement … “more needs to be done” … future SEC deferred prosecution agreements … these are sure interesting times to be following the FCPA!

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