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Heating Up North of the Border

In its July 2010 Progress Report on the Enforcement of the OECD Convention (here), Transparency International (“TI”) called Canada one of its “most disappointing” findings given “little or no enforcement” of Canada’s FCPA like-statute, the Corruption of Foreign Public Officials Act (“CFPOA”)

Among other things, Canada was found to have an insufficient definition of a foreign bribery offense, jurisdictional limitations as to its statute, inadequacies in its enforcement system, and lack of awareness raising in the country as to foreign corruption issues.

The TI Report quoted Bruce Futterer (a TI Canada expert) as saying – “One is left with the impression that the enforcement of anti-bribery and foreign corruption legislation is not a high enough priority with the Canadian federal government and that more could be done both in terms of strengthening the existing legislation and allocating greater human and financial resources to the education and enforcement of the CFPOA.”

Against this backdrop, TI Canada’s January 31st press release (here) caught my eye. Without providing a source, the release states as follows: “The recent revelation from the RCMP Sensitive Investigations and International Anti- Corruption Unit that 23 CFPOA investigations are underway means that, ‘Canadian companies can no longer hide behind the world’s perception that business is done here in a completely ethical manner.'”

From little to no enforcement to 23 active investigations, that is big news north of the border.

For more see here.

Tyson Foods Settles FCPA Enforcement Action Involving Mexican Veterinarians And Their No-Show Wives

Yet another FCPA enforcement action raises the issue of whether the FCPA’s “obtain or retain business” element means anything anymore or whether the FCPA, contrary to Congressional intent, has morphed into an all-purpose corporate ethics statute and – in a game of chicken – companies opt to settle rather than mount a legal defense.

Yesterday, Tyson Foods, one of the world’s largest processors of chicken and other food items, agreed to resolve an FCPA enforcement action focused on payments to Mexican veterinarians (and their no-show wives) responsible for certifying product for export.

The enforcement action involved both a DOJ and SEC component. Total settlement amount was approximately $5.2 million ($4 million criminal fine via a DOJ deferred prosecution agreement; $1.2 million in disgorgement and prejudgment interest via a SEC settled complaint).


The DOJ enforcement action involved a criminal information (here) against Tyson resolved through a deferred prosecution agreement (here).

Criminal Information

The information contains a background section which describes the following.

“The Government of Mexico administers an inspection program, Tipo Inspeccion Federal (“TIF”), for meat-processing facilities. Any company that exports meat products from Mexico must participate in the inspection program, which is supervised by an office in the Mexican Department of Agriculture (“SAGARPA”). The inspection program at each facility is supervised by an on-site veterinarian who is a government employee (“TIF veterinarian”), paid by the state, who ensures that all exports are in conformity with Mexican health and safety laws.” “There are two categories of TIF veterinarians: ‘approved’ and ‘official.’ Although all TIF veterinarians are foreign officials under the FCPA, Mexican law permits approved veteriarians to charge the facility in which they work a fee for their services in addition to their offcial salary. Official veterinarians receive all of their salary from the Mexican government and may not be paid by the facility they supervise.”

The conduct at issue focuses on Tyson de Mexico (“TdM”), a wholly-owned subsidiary of Tyson that produces protein-based and prepared food products for sale in Mexico and foreign countries other than the U.S. TdM is headquartered in Mexico and maintains three meat-processing factories in Mexico.

The information charges that from July 2004 through November 2006, Tyson, TdM, and others were engaged in a conspiracy to “assist Tyson and TdM in the export of meat products from Mexico through the payment and promise of payment of things of value to Mexican government-employed TIF veterinarians, in order to obtain or retain business for TdM by influencing the decisions of veterinarians responsible for certifying TdM products for export under the TIF Program.”

The information does not give any detail as to how the payments sought to influence the veterinarians nor does it suggest that the product at issue was not qualified for export. In fact, as detailed below, Tyson’s press release (a release the DOJ had to approve per the deferred prosecution agreement) states that there were no issues with the safety of the exported products.

Among other things, the information alleges that part of the conspiracy was “to place the wives of the TIF veterinarians on TdM’s payroll, providing them with a salary and benefits, knowing that the wives did not actually perform any services for TdM …”. According to the information, upon “termination of the salaries to the wives of the TIF veterinarians” in November 2006 Tyson “agreed to increase the amount paid to the veterinarians based on false invoices by the same amount as the salaries previously paid to their wives.”

The information alleges that the above payments were falsely recorded on company books and records as “professional fees” and salaries in order to conceal the true nature of the improper payments in the consolidated books and records of Tyson.

In addition to the above described payments, the information also alleges that from the time Tyson acquired TdM in 1994 through 2006, “Tyson made occassional additional improper payments to the TIF veterinarians on an ad-hoc basis.”

Under the heading “Total Improper Payments” the information alleges as follows:

“Tyson, its executives, and its subsidiaries authorized the payment, directly or indirectly, of approximately $90,000 to Mexican government-employed veterinarians, in order to obtain or retain business for TdM by influencing the decisions of veterinarians responsible for certifying TdM products for export under the TIF program, resulting in profits of approximately $880,000.”

In addition, the information alleges that from the time of Tyson’s acquisition of TdM until May 2004, “an additional $260,000 in improper payments were made to the TIF veterinarians, both indirectly and directly, including through payments to wives of TIF veterinarians.”

Based on the above allegations, the information charges Tyson with conspiracy to violate the FCPA and substantive FCPA anti-bribery violations.


The DOJ’s charges against Tyson were resolved via a deferred prosecution agreement.

Pursuant to the DPA, Tyson admitted, accepted and acknowledged that it was responsible for the acts of its officers, employees, agents, and wholly-owned subsidiaries as set forth above.

The term of the DPA is two years and it states that the DOJ entered into the agreement “based on the following factors”:

(a) Tyson voluntarily disclosed the misconduct;

(b) Tyson conducted a thorough internal investigation of the misconduct;

(c) Tyson reported all of its findings to the Department;

(d) Tyson cooperated in the Department’s investigation of the matter;

(e) Tyson has undertaken certain remedial measures;

(f-g) Tyson has agreed to continue to cooperate with the Department and the SEC in any investigation of the conduct of Tyson and its directors, offcers, employees, agents, consultants, subsidiaries, contractors, and subcontractors relating to violations of the FCPA; and

(h) with respect to the corporate compliance reporting obligations, the Department considered the following facts and circumstances: (i) Tyson has already engaged in signficant remediation related to the misconduct and implemented an enhanced compliance program; (ii) approximately 85-90% of Tyson’s sales are domestic; (iii) Tyson operates only six wholly-owned production facilities overseas, three in Mexico and three in Brazil, all of which have been subjected to rigorous FCPA reviews; (iv) Tyson’s only direct government customers are domestic; and (v) the problematic operations in TdM comprised less than one percent of Tyson’s global net sales.

As stated in the DPA, the fine range for the above described conduct under the U.S. Sentencing Guidelines was $5.04 to $10.08 million. Pursuant to the DPA, Tyson agreed to pay a monetary penalty of $4 million (approximately 20% below the minimum amount suggested by the guidelines).

Pursuant to the DPA, Tyson agreed to self-report to the DOJ “periodically, at no less than six-month intervals” during the term of the DPA “regarding remediation and implementation of the compliance activities” described in the DPA. Given the factors the DOJ set forth in (h) above, this reporting obligation is a bit of a surprise.

As is standard in FCPA DPAs, Tyson agreed not to make any public statement “contradicting the acceptance of responsibility” as set forth in the DPA and Tyson further agreed to only issue a press release in connection with the DPA if the DOJ does not object to the release.

In the DOJ’s release (here) Assistant Attorney General Lanny Breuer stated as follows: “Tyson Foods used false books and sham jobs to hide bribe payments made to publicly-employed meat processing plant inspectors in Mexico – the penalty and resolution announced today reflect the company’s disclosure of this conduct, its cooperation with the government’s investigation and its commitment to implementing enhanced controls.”


The SEC’s civil complaint (here) is based on the same core conduct described above.

The complaint alleges that Tyson “authorized” TdM’s illicit activities and that “in connection with these improper payments, Tyson Foods failed to keep accurate books and records and failed to have effective internal controls, as the true nature of the payments were concealed through salary payments to phantom employees and through service invoices submitted by one of the veterinarians.”

According to the SEC, “Tyson Foods realized net profits of more than $880,000 from export sales from [TdM] facilities in fiscal years 2004, 2005 and 2006.

Based on the above conduct, the SEC charged Tyson with FCPA’s anti-bribery violations and FCPA books and records and internal control violations.

Without admitting or denying the SEC’s allegations, Tyson agreed to an injunction prohibiting future FCPA violations and agreed to pay $1.2 million in disgorgement and pre-judgement interest.

In the SEC release (here), Robert Khuzami (Director of the SEC’s Division of Enforcement) stated: “Tyson and its subsidiary committed core FCPA violations by bribing government officials through no-show jobs and phony invoices, and by having a lax system of internal controls that failed to detect or prevent the misconduct.”

Laurence Urgenson (here) of Kirkland & Ellis represented Tyson.

Tyson’s press release (here) notes, among other things, that its voluntary disclosure occured in early 2007 and that “none of the products exported from Tyson de México during the time period involved were shipped to the U.S., nor were there any issues with the safety of the products.”

David Van Bebber, the company’s Executive Vice President and General Counsel stated as follows: “We’re committed to abiding by the law as well as our company’s Core Values, which call on all of our people to operate with integrity. While we’re disappointed mistakes were made, corrective action has been taken and the improper payments were discontinued. As our international operations have expanded, we continue to strengthen the compliance efforts of our international businesses including improved training and compliance programs, extensive retraining, and anti-corruption focused audits.”

Without Admitting or Denying

It’s not an FCPA specific issue, but it’s certainly an FCPA enforcement issue.

A company is the subject of a SEC FCPA enforcement inquiry.

A civil complaint is generally filed, and then, on the same day, the company “without admitting or denying” the SEC’s allegations agrees to resolve the case.

See here for the recent SEC FCPA enforcement action against Maxwell Technologies.

At PLI’s “SEC Speaks” event last week, SEC Commissioner Luis Aguilar shared (see here) his “wishes for 2011” including “the Enforcement Division must bring cases with obvious deterrent effect.”

Commissioner Aguilar stated as follows:

“As we work to build a pro-active regulator, my second wish is that the SEC Division of Enforcement brings cases that have obvious deterrence value. I know that this is a wish that is shared by our Enforcement staff. This means that when the Commission announces the resolution of a matter we would notice a reaction that we haven’t always witnessed.

I envision a world where when the SEC announces a settlement in a high profile case, its impact is clearly noted — and leaves little doubt that it will make people that are engaged in similar activities think twice. An enforcement action by the SEC should be serious business, and it should cause an organization to seriously review how it has been operating. Moreover, our enforcement actions should have market-wide impact, and there should be sanctions that are significant enough to stop similar conduct in its tracks. The possibility of being sanctioned by the Commission should not be considered part of the cost of doing business.

I envision a world where our remedies are calibrated to be meaningful, not merely routine – and where federal judges can clearly see that the SEC understands its mission and seeks to protect investors and deter wrongdoers by obtaining appropriate sanctions and meaningful deterrence.

An additional wish for 2011 is to see defendants take accountability for their violations and issue mea culpas to the public. I hope that 2011 brings an end to the press release issued by a defendant after a settlement explaining how the conduct was really not that bad or that the regulator over-reacted. I hope that this revisionist history in press releases will be a relic of the past. If not, it may be worth revisiting the Commission’s practice of routinely accepting settlements from defendants who agree to sanctions “without admitting or denying” the misconduct.” (emphasis added).

I agree. It is worth revisiting this central feature of SEC settlements.

The policy was first adopted in 1972 (see here) and states as follows.

“The Commission has adopted the policy that in any civil lawsuit brought by it or in any administrative proceeding of an accusatory nature pending before it, it is important to avoid creating, or permitting to be created, an impression that a decree is being entered or a sanction imposed, when the conduct alleged did not, in fact, occur. Accordingly, it hereby announces its policy not to permit a defendant or respondent to consent to a judgment or order that imposes a sanction while denying the allegations in the complaint or order for proceedings. In this regard, the Commission believes that a refusal to admit the allegations is equivalent to a denial, unless the defendant or respondent states that he neither admits nor denies the allegations.”

The resolution policy can lead to absurd results (see here).

In the FCPA context, I submit this SEC resolution policy contributes to a “facade of enforcement” and results in companies resolving an SEC FCPA enforcement action notwithstanding dubious or untested legal theories and regardless of valid and legitimate defenses.


It is simply easier and more cost efficient to settle an enforcement action “without admitting or denying” the SEC’s allegations than to engage in long protracted litigation with a primary regulator.

My recent “Facade of FCPA Enforcement” piece (here) contains a discussion of the SEC v. Bank of America case. Although not an FCPA case, the party’s briefs provide valuable insight into the same SEC enforcement procedures used in FCPA enforcement actions and the motivations of settling parties in a government enforcement action. Even the SEC noted in that case that “the terms of a reasonable settlement do not necessarily reflect the triumph of one party’s position over the other.”

Thus, I agree with Commissioner Aguilar that it is worth revisiting the Commission’s practice of routinely accepting settlements from defendants who agree to sanctions “without admitting or denying” the misconduct.

This policy contributes to a “facade of enforcement,” including in the FCPA context, and the starting analysis should be – why did the Commission adopt this policy in the first place?

Is There A Difference?

In September 2010, during the sentencing of Nam Quoc Nguyen, one of the Nexus Technology defendants (see here for the post on the sentences), the DOJ called to the witness stand the former U.S. commercial attache from Vietnam who was asked to testify as to the “seriousness of the offense as it impacts Vietnam.” (See here for relevant portions of the sentencing transcript).

While in Vietnam, the commercial attache oversaw a staff of about ten in delivering services to American companies to help them grow their exports and he managed an advocacy portfolio in Vietnam to assist U.S. companies in selling directly to the Vietnam government. The individual testified that his group “constantly advise[d] companies on strategies to enter the market, to bid on government contract, to win business.”

The former commercial attache described Vietnam as a “corrupt country” and the DOJ presumably expected the individual to stay on message as to how corruption in Vietnam is not a victimless crime and to describe who suffers from corruption in Vietnam. He did that.

But the individual drifted it seemed in his testimony and said, “I make no bones about it. It’s very difficult to do business in Vietnam. It’s not very transparent but American companies are making money and there are a number of strategies that companies can follow.”

The individual was asked “is it possible to do business in Vietnam without paying bribes.” He answered “it is.”

One of the strategies he discussed was the following.

“Often it [obtaining Vietnamese government business] may require a personal visit by the Ambassador or another high-ranking official to a government official or an official of a state-run enterprise. It could take the form of a letter from a high-ranking U.S. government official to another official in the Vietnamese government or state-owned enterprise.” (See pg. 68).

The individual then specifically talked about a $180 million commercial satellite contract Lockheed Martin was awarded by Vietnam Post and Telematics Group (a “major state-owned enterprise”). See here for Lockheed’s press release.

According to the individual’s testimony, Lockheed (he described the company as “one of our clients”) “was in a competitive position to provide $180 million commercial satellite to one of the major state-owned enterprises, Vietnam Post and Telematics Group, VNPT.”

At this point, even the judge asked the DOJ attorney, “what does this have to do with what you said you were calling this witness to tell us about?”

After an exchange between the judge and the DOJ attorney, the individual finished by saying. “The bottom line is, we have been able to help companies work through. In this particular case, a European country was offering payment with regards to winning the bid but the intervention of the Ambassador with the Chairman of VNPT and the Minister of Information Communications, was a critical element to help the company win the business, and they have stated as such.”

According to this October 2010 article, Lockheed is among the “biggest corporate campaign contributors in U.S. politics.”

Is there a difference between (a) when a company (or its employees) gives something of value to a foreign official to obtain or retain business with a foreign government; and (b) when a company (or its employees) gives something of value to U.S. political parties or candidates, or spends millions lobbying the U.S. government, and then the U.S. government assists the company obtain or retain business with a foreign government?

What about those U.S. diplomats that act as “marketing agents” for U.S. companies such as Boeing as recently profiled by the New York Times (here).

Robert Amaee on the “The Elusive UK Bribery Act”

In this guest post, Robert Amaee (the former Head of Anti-Corruption and Proceeds of Crime Unit at the U.K. Serious Fraud Office and current counsel with Covington & Burling LLP in London – see here) addresses several issues regarding the U.K. Bribery Act, including its recently announced delay.


The Elusive UK Bribery Act

The UK Ministry of Justice (the “MoJ”) announced within the past few days that implementation of the UK Bribery Act 2010 (the “Bribery Act”) is to be postponed for a second time; leading to a barrage of criticism from respected sources such as the OECD and Transparency International. The Bribery Act will now not enter into force until three months after the MoJ publishes its guidance on certain provisions of the Bribery Act. The MoJ has not announced a date for the issuance of this guidance.

So, what’s going on?

Some business leaders and their representatives reportedly have complained about the impact the Bribery Act could have on the competitiveness of British business overseas; with the incoming head of the Confederation of British Industry claiming that the Bribery Act is “not fit for purpose”. The Bribery Act also stands accused of leaving too much discretion in the hands of officials at the UK Serious Fraud Office (the “SFO”) to resolve questions that have been posed concerning the Bribery Act’s jurisdictional reach as well as several of its substantive provisions. Others — even within the UK Government — are reported to have complained that the Bribery Act was rushed through Parliament without sufficient scrutiny of the impact on British business. So, what’s going on?

The Bribery Act has had an exceedingly long gestation period by any standard and, like many welcome but overdue arrivals, it is now causing a few birthing issues. You may not like this analogy much but the fact of the matter is that ever since the UK made a commitment in 1998 to fulfill its obligations under the OECD Anti-Bribery Convention and became a signatory to the UN Convention against Corruption, there has been an unremitting flow of effort aimed at transforming the UK’s complex Victorian laws on bribery and corruption into something more readily understandable and enforceable.

Since 1998, there has been, inter alia, in the UK a Law Commission Report, Draft Corruption Bill 2003, Draft Corruption Bill 2006, Law Commission Consultation 2007, a further Law Commission Report, a Draft Bribery Bill published in March 2009, the Joint Committee Report on the Draft Bribery Bill and the UK Government’s positive response to that report, which described the Joint Committee’s scrutiny of the Bill as “thorough.”

It is a fact that the Bribery Act did move through Parliament at breakneck speed in the final hours of the last UK Government in April 2010, receiving Royal Assent with little time to spare. What is also true, though, is that the Bribery Act was extensively debated in Parliament between November 2009 and April 2010 and made its way onto the statute books with resounding cross party support.

Will the Bribery Act ever enter into force?

There remains very strong support, across the UK Government and within the wider business community, for an effective and enforceable statute to combat bribery and other forms of corruption. The UK Attorney General Dominic Grieve QC has expressed publicly his support for the Bribery Act as has the Justice Minister and UK Anti-Corruption Champion, Ken Clarke. I believe that there is practically no prospect of the UK Government reneging on the commitments the UK has made to modernise the laws prohibiting bribery and other forms of corruption or indeed significantly disarming the Bribery Act, as enacted last April.

No one in the UK or elsewhere can assert a legitimate interest in permitting corrupt officials around the globe to continue to amass personal wealth at the expense of their fellow citizens, who often are left to endure abject poverty. Quite apart from the moral repugnance that one feels, it is important to ensure that corrupt officials do not act as an impediment to economic growth and job creation within their often resource rich countries by holding companies to ransom and pocketing their nation’s wealth.

The Bribery Act aims to tackle business involvement in corruption by making the boardroom responsible for keeping a tight reign on the company’s employees as well as the actions of “associated parties,” thereby aspiring to stem the flow of corporate funds into corrupt hands. No one will argue against that laudable aim but at the same time it is important to ensure that the law is not so widely drafted that it leaves well meaning and ethical companies in the invidious position of sanctioning technical breaches of the Act in the hope of salvation through prosecutorial pragmatism.

What’s all the fuss about?

The Bribery Act runs to a mere 17 pages and contains only four substantive offences. But it is the scope of two offences in particular that has caused business leaders to reach for the nearest packet of aspirin.

The major criticism has focused on the offences in sections 6 and 7 of the Bribery Act, both of which stand accused of being too widely drawn and introducing novel concepts that the Bribery Act fails to define. In relation to both of those sections, implementing policies to deal with corporate hospitality, facilitation payments and the extent of a company’s exposure to third party folly are regularly cited as problematic by company representatives.

In essence, the section 6 offence of “bribery of a foreign public official” makes a person liable if he or she offers, promises or gives a financial or other advantage to a foreign public official with the dual intention of influencing the official and obtaining or retaining business or a business advantage. The concern that has been raised is that for an offence to be made out under this section there is no requirement to show that the person trying to win the business had a corrupt intent or an intent to induce “improper performance” on the part of the official (as is required for the section 1 offence) and that many routine innocent interactions with foreign public officials could, as a consequence, amount to technical breaches of the Bribery Act.

Section 7 of the Bribery Act creates a wholly unprecedented UK offence of “Failure of a commercial organisation to prevent bribery.” A UK registered company or a non-UK registered company that “carries on a business or part of a business” in the UK, with no “knowledge” of or involvement in bribery could find itself in the uncomfortable position of having to explain to a UK prosecutor how a rogue employee or “associated person” in a remote part of the world could have paid a particular bribe. If facing such a charge, the company would have to convince the prosecutor and, if it came to it, a court that the policy and procedures that it had developed and implemented amounted to the only defence available under section 7, namely the much talked about “adequate procedures”.

The Bribery Act stipulates that a person is associated with a company if that person “performs services” for or on the company’s behalf. The Bribery Act states that an employee, agent or subsidiary “may (for example)” be deemed to be an associated person but goes on to say that in determining the question of who performs a service on for you or on behalf of a company one would have to look at “all the relevant circumstances” and not just the ”nature of the relationship.”

The manner in which an “associated” person is treated in the Bribery Act certainly does give prosecutors wide discretion in deciding whether a company should be held to account for the conduct of those who are representing the company. In addition, whether a company is “carrying on a business or part of a business in the UK” is not defined or circumscribed in the Bribery Act itself. Rather, it has been left — according to the Bribery Act’s legislative history — to the judgment of prosecutors and the UK courts, grappling with the pertinent facts on a case by case basis and applying “common sense.”

In relation to the “adequate procedure” defence under section 7, the Bribery Act obliges the UK Government, through the Secretary of State, to publish guidance on procedures that companies “can put in place to prevent persons associated with them” from engaging in bribery. This will, in due course, be supplemented by prosecutorial guidance setting out the elements of each of the Bribery Act offences and the public interest considerations that prosecutors will take into account in deciding whether to prosecute.

The MoJ’s draft guidance on “adequate procedures” was published in September 2010 and was followed by a short consultation period, which ended in November 2010. The MoJ had been expected to publish in January 2011 its final guidance on “adequate procedures,” leaving thereafter a three month window for companies to digest the guidance and refine their anti-bribery procedures.

What’s next?

In postponing release of the final guidance and implementation of the Bribery Act, the UK Government appears to have taken note of the cumulative effect of the concerns outlined above, albeit rather late in the day, and put off implementation of the Act until the guidance can be shaped to address those concerns. The MoJ is reported to have explained the delay in issuing the statutory guidance by stating that it is assiduously working on the guidance to make it “practical and comprehensive for business.”

Practical and comprehensive guidance certainly would be a step in the right direction and would be welcome by all British businesses as well as by those non-UK registered companies carrying on a business, or part of a business, in the UK who are working hard to compete globally whilst staying on the right side of the law.

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