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Alcatel-Lucent’s Woes Continue

First it was Lucent Technologies. It settled parallel DOJ and SEC enforcement actions principally based on providing excessive travel and entertainment benefits to Chinese “foreign officials” (see here and here).

Then it was Alcatel-Lucent. It settled Costa Rican charges that it paid “kickbacks to former Costa Rican President Miguel Angel Rodriguez and other government officials in return for a 2001 contract worth $149 million to supply cellular telephone equipment.” (See here).

Then it was Alcatel-Lucent that disclosed it had reached agreements with the DOJ and SEC to resolve bribery and corruption allegations in several countries, including Costa Rica, Taiwan, and Kenya. These agreements have not yet been announced. Here is what the company most recently said in its March 23rd Form 20-F:

“FCPA investigations: In December 2009 we reached agreements in principle with the SEC and the U.S. Department of Justice with regard to the settlement of their ongoing investigations involving our alleged violations of the Foreign Corrupt Practices Act (FCPA) in several countries, including Costa Rica, Taiwan, and Kenya. Under the agreement in principle with the SEC, we would enter into a consent decree under which we would neither admit nor deny violations of the antibribery, internal controls and books and records provisions of the FCPA and would be enjoined from future violations of U.S. securities laws, pay U.S. $ 45.4 million in disgorgement of profits and prejudgment interest and agree to a three-year French anticorruption compliance monitor. Under the agreement in principle with the DOJ, we would enter into a three-year deferred prosecution agreement (DPA), charging us with violations of the internal controls and books and records provisions of the FCPA, and we would pay a total criminal fine of U.S. $ 92 million, payable in four installments over the course of three years. In addition, three of our subsidiaries – Alcatel-Lucent France, Alcatel-Lucent Trade International AG and Alcatel Centroamerica – would each plead guilty to violations of the FCPA’s antibribery, books and records and internal accounting controls provisions. If we fully comply with the terms of the DPA, the DOJ would dismiss the charges upon conclusion of the three-year term. Final agreements must still be reached with the agencies and accepted in court.”

[For those of you “scoring at home” this would appear to be yet another DOJ “bribery, yet no bribery” enforcement action against the parent company. The DOJ’s eventual sentencing memorandum is likely to mention the European Union debarment provisions which would be applicable to Paris-based Alcatel-Lucent should it have been charged with FCPA anti-bribery violations.]

As if all of the above were not enough, it was recently reported (here) that “El Instituto Costarricense de Electricidad (ICE), Costa Rica’s telecommunications and electricity provider, filed a complaint in the Miami-Dade County Circuit Court, Miami, Florida, against Alcatel Lucent S.A. and other related parties.” According to the article, “the complaint asserts claims for violations of civil racketeering and other laws of Florida in connection with Alcatel Lucent’s bribery and corruption of Costa Rican officials to secure telecommunications contracts with ICE” and that “if successful, the lawsuit will allow ICE to recover three times the amount of its damages.”

Focus on Pharma

Yesterday, Acting Deputy Attorney General Gary Grindler spoke at the National Institute on Health Care Fraud in Miami. Part of his remarks (see here) included the following:

“… in the months ahead, you can expect to see the department increasingly using the Foreign Corrupt Practices Act to prosecute kickbacks and bribes paid to foreign government officials by pharmaceutical companies. As the drug companies do more and more of their business overseas where so much of the health care business is government run, we unfortunately see the opportunities for FCPA violations proliferating. In some foreign countries, nearly every aspect of the approval, manufacture, import, export, pricing, sale and marketing of a drug product may involve a “foreign official” within the meaning of the FCPA. The department will not hesitate to charge pharmaceutical companies and their senior executives under the FCPA if warranted to root out foreign bribery in the industry.”

If the above “nearly every aspect” snippet sounds familiar, you have a good memory.

It is nearly verbatim what Assistant Attorney General Lanny Breuer said during a keynote address to the 10th Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices Forum last November. (See here).

Innospec’s Positive Financial Results

In March, Innospec got hit on both sides of the Atlantic (see here) and agreed to pay $40.2 million in combined DOJ/SEC/SFO fines and penalties for violating the Foreign Corrupt Practices Act and other laws.

However, it could have been worse.

The SEC release (see here) notes that Innospec, without admitting or denying the SEC’s allegations, was ordered to pay $60,071,613 in disgorgement, but because of Innospec’s “sworn Statement of Financial Condition” all but $11,200,000 of that disgorgement was waived.

The release states that “[b]ased on its financial condition, Innospec offered to pay a reduced criminal fine of $14.1 million to the DOJ and a criminal fine of $12.7 million to the SFO. Innospec will pay $2.2 million to OFAC for unrelated conduct concerning allegations of violations of the Cuban Assets Control Regulations.”

In other words, Innospec got a pass on approximately $50 million.

This occured on March 18th.

Last week, Innospec announced (see here) it financial results for the first quarter ended March 31th (i.e. approximately two weeks from March 18th).

The results?

“Total net sales for the quarter were $163.5 million, up 10% from $148.1 million in the corresponding period last year. Net income was $7.4 million, or $0.30 per diluted share, a 16% increase from $6.4 million, or $0.26 per diluted share, a year ago. EBITDA (earnings before interest, taxes, depreciation, amortization and impairment) for the quarter was $15.4 million, compared with $16.0 million a year ago.”

“As of March 31, 2010, Innospec had $67.5 million in cash and cash equivalents, $22.5million more than its total debt of $45.0 million.”

Innospec’s President and Chief Executive Officer stated, “we are very pleased with our first quarter operating results …”.

I am a lawyer by training, not a finance professional.

So forgive me, but I am scratching my head over this one.

March 18th – Innospec gets a pass on $50 million in an FCPA case because of its financial condition.

March 31st – Innospec reports positive financial results, including $67.5 in cash and cash equivalents.

Potpourri

Some items of interest to pass along.

The Business Case for Fighting Bribery and Corruption

Principles for Responsible Investment, a coalition of investor groups that collectively manage over $1.7 trillion in assets, recently wrote to “21 major companies in 14 countries asking them to improve their disclosure of bribery and corruption risks and avoidance measures.” For more information see here.

Upcoming Events

Hungry for more information on the FCPA and related topics? Mark your calendar for these upcoming events.

“Foreign Corrupt Practices Act (FCPA) Overview 2010: Enforcement and Compliance Strategies” – May 18th – Winston & Strawn (see here).

“The Role of HR in FCPA Compliance and Ethics” – May 18th – Thomas Fox (see here).

“The Implications of the UK Bribery Bill: Preparing for a New Era of Enforcement” – May 18th – Steptoe & Johnson (see here).

“A Focus on FCPA Investigations” – May 25th – Morgan Lewis (see here).

“Corruption: The New Global Landscape” – June 10th, June 25th – Venable and Field Fisher Waterhouse (see here).

“The Bribery Racket” – Additional Commentary

A previous post (see here) covers Nathan Vardi’s “The Bribery Racket” piece in the current issue of Forbes. For additional commentary see here from Mary Jacoby at Main Justice.

SEC Seeking “Corporate Intelligence Specialist”

Have what it takes to join the SEC’s new FCPA unit? See here to find out.

Africa Sting – Will Economic Realities Result in Additional Pleas?

The Africa Sting case (see here for numerous prior posts) is best known as the largest undercover sting operation in FCPA history.

The sting operation resulted in lots of video recordings, telephone recordings, documents and search warrant material.

According to a recent DOJ discovery filing (see here) the following, among other things, have been turned over to defense counsel:

“615 audio and video recordings of more than 150 meetings;”

“5,287 recorded telephone calls between the defendants and the cooperating witness, identified as Individual 1 in the indictments, and between the defendants and undercover FBI agents;”

“recordings of telephone calls between Individual 1 and FBI agents;”

“certain calls, approximately a minute or less in length, recorded in connection with the undercover investigation;”

“in excess of 5,000 pages of documents relating to Individual 1, including reports, expense paperwork, bank statements, quotes, emails, notes, drug tests results, payment receipts, and Skype text messages, among others;”

“emails from the accounts of Individual 1 and the undercover FBI agents;”

“nearly 3,000 pages of text messages from the telephone Individual 1 used in connection with the undercover operation;”

“documents related to the undercover investigation that are not directly related to Individual 1, including case administration documents, FBI reports, bank records, product information, and search warrant materials;” and

“materials seized during the 13 search warrants executed in connection with the undercover investigation relating to the defendants” including a total of “approximately 242,000 pages of documents,” “electronic media, including desktop computers, laptop computers, USB drives, zip discs, memory cards and DVDs, among other items, seized during the searches,” and “photographs taken in connection with the search warrants and logs of those photographs, as well as search diagrams and seizure inventories.”

The government had vast resources at its disposal in conducting the sting and continues to have vast resources at its disposal in prosecuting the case.

The defendants do not.

Another distinguishing feature of the Africa Sting case is that it involves many small-business owners.

The lawyers for the Africa Sting defendants have a duty to competently represent their clients.

That means the lawyers will have to review all of the above-referenced material (as well as other material) to better understand the facts of the case and their client’s exposure.

That is going to be very expensive. And all this is required before “active” lawyering (i.e. motions to dismiss, etc.) even begins.

Some will say, well, the Africa Sting defendants should have thought about this before (allegedly) violating the law.

Others will say, this case points out the difficulties of litigating against a DOJ with vast resources.

Will the economic realities of this situation lead to more plea deals over the summer?

Will the cost of testing an innocence claim simply be too high such that additional defendants may raise the “white flag” of surrender? If so, is it because the defendants are guilty of the crimes charged, or because of the economic realities of the situation?

*****

For the latest Main Justice update on the Africa Sting case (see here).

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