Top Menu

U.K. Roundup

Is the U.K. Serious Fraud Office’s (“SFO”) active engagement policy a bit too active (and too private as well), is anyone left at the SFO to activley engage, the recent Mabey & Johnson individual sentences, and the U.K. anti-corruption champion calls out Bribery Act plc … its all here in a special U.K. Roundup.

Corporate Crime Reporter Questions SFO’s Active Engagement Policy

The SFO has a clear policy of active engagement when it comes to the Bribery Act and I have previously stated (here) that this policy ought to be modeled by other enforcement agencies.”

Corporate Crime Reporter (“CCR”), in a recent piece (here) titled “Behind Closed Doors, UK Anti-Corruption Chief Alderman Advises Corporations, Law Firms” questions whether this engagement approach has become too active and questions whether the engagement needs to take place behind closed doors.

Writes CCR – “You would never see a US federal prosecutor visit a private law firm to give private advice – behind closed doors – to the firm’s corporate defense lawyers and their clients. But the chief law anti-corruption law enforcement official of the UK says – no problem. Over the past couple of years, Alderman has been visiting American law firms regularly. Briefing the lawyers. Answering questions from corporate clients. All behind closed doors. All in secret. To the very same corporations that Alderman will prosecute if they engage in corruption overseas.”

Alderman is quoted as saying he is “an equal opportunity debriefer” and that he has met with, among others, U.K. anti-corruption public interest groups – like Corner House.

As I highlighted in this prior post, in September 2010, I was pleased to accept the invitation of the SFO to visit its offices and meet top-level personnel to discuss Bribery Act and other anti-corruption issues and topics.

Another SFO Departure

With all the recent SFO departures one might wonder whether there is anyone left at Elm House to actively engage.

Recent SFO departures have included Robert Amaee (former SFO Head of Anti-Corruption) who jointed Covington & Burling’s London office and Charlie Monteith (former SFO Head of Assurance) who jointed White & Case’s London office. (See here for the prior post).

Add Kathleen Harris (former head of the Fraud Business Group at the SFO) to the list. Arnold & Porter recently announced (here) that Harris will join the firm’s London office as a partner in June. Arnold & Porter Chair Thomas Milch said Harris “is especially well-positioned to help navigate the UK’s new Bribery Act and address the difficult investigatory, compliance, and defense challenges that companies face in a heightened global enforcement environment.”

As has been reported, Alderman is also looking to retire from the SFO in the next year.

Mabey & Johnson Individual Sentences

This prior post discussed the February 10th guilty verdicts of Charles Forsyth and David Mabey (two former directors of Mabey & Johnson Ltd.) for inflating the contract price for the supply of steel bridges in order to provide kickbacks to the Iraqi government of Saddam Hussein. Richard Gledhill, a Sales Manager for contracts in Iraq, previously pleaded guilty.

Recently, the SFO announced (here) the following sentences:

Forsyth – 21 months imprisonment, disqualified from acting as a company director for five years and ordered to pay prosecution costs of £75,000;

Mabey – eight months imprisonment, disqualified from acting as a company director for two years and ordered to pay prosecution costs of £125,000;

Gledhill – eight months imprisonment, suspended for two years.

As noted in the release:

“In passing sentence HHJ Rivlin QC said ‘The bare truth of this case is that Mr Forsyth bears the most culpability’. In relation to David Mabey, HHJ Rivlin QC said ‘When a director of a major company plays even a small part, he can expect to receive a custodial sentence. SFO Director Richard Alderman said ‘This shows that the SFO is determined to go after senior corporate executives who break the law. I am pleased with the result. It sends out a very strong message from the courts on this type of offending.'”

For additional analysis of the Mabey & Johnson individual sentences see this recent alert from Amaee and John Rupp of Covington & Burling. The authors note as follows. “It is clear that once the UK enacts its new Bribery Act, UK prosecutors will take a close look at the provisions contained in section 14 of the Bribery Act to deal with any Senior Officers of companies who can be said to have consented to or connived in the commission of bribery offences and that the courts will not shy away from imposing appropriate custodial sentences on those found guilty.”

As I noted in the prior post, in just its single Mabey & Johnson prosecution, the SFO would appear to have prosecuted (and now sentenced) more individuals than the U.S. has in its approximately 15 Iraqi Oil for Food corporate enforcement actions combined.

Kenneth Clarke’s Comments

It is not every day that a high-ranking government official lends credence to fear mongering (see here) and mass hysteria (see here) comments regarding a soon-to-be implemented law. But that is what Kenneth Clark, a U.K. Justice Secretary and the U.K’s international anti-corruption champion (see here), did in a recent appearance in the House of Commons. During a Q&A session (see here for the video – approximately the 1 minute 45 second mark) Clark stated as follows: “I hope to put out very clear guidance to save [businesses] from the fears that are sometimes aroused by the compliance industry, the consultants and lawyers who will, of course, try to persuade companies that millions of pounds must be spent on new systems that, in my opinion, no honest firm will require to comply with the Act.”


A good weekend to all.

Significant China Law Development

The June 2010 OECD Working Group on Bribery Annual Report (here) notes that China’s “Ministry of Supervision informed the [OECD] Secretariat that China had begun considering how it would establish an offence of bribing a foreign public official, but was not yet at the stage of drafting legislation.”

As this recent Covington & Burling alert highlights: “on February 25, 2011, the legislature of the People’s Republic of China (“PRC”), the National People’s Congress, passed a slate of 49 amendments to the Criminal Law, one of which is a provision that criminalizes paying bribes to non-PRC government officials and to officials of international public organizations (“the Amendment”).” The alert explain that “this Amendment represents the first instance in which PRC law has prohibited PRC nationals and PRC companies from paying bribes to non-PRC government officials.”

Eric Carlson (here), an attorney based in Covington’s Beijing office who specializes in anti-corruption compliance with a particular focus on China and other regions of Asia and one of the authors of the alert, answered the following questions.

Is this China’s version of the FCPA?

At one level, the Amendment’s aim appears to be similar to the FCPA’s — prevent citizens and companies based in the country from bribing government officials outside the country. This is China’s first foray into this area, however, and the provisions are not as detailed or developed as in certain other countries’ anti-bribery laws. The PRC Amendment is a rather high-level law, whereas the text of the FCPA includes considerably more detail, even if the interpretation of those details is being actively debated and litigated. The absence of clear definitions, exceptions, and affirmative defenses also would appear to require PRC prosecutors to exercise somewhat more discretion in interpreting and enforcing the law.

Is China really going to enforce this law against its own companies operating outside of China?

Unclear. China’s enforcement of its domestic bribery laws historically has been somewhat uneven and focused mainly on the demand side (i.e., prosecuting officials who take bribes). Recently, however, the government has shown an increasing willingness to target bribe-payers as well, as corruption remains a primary concern of the general population and thus a concern for the government and ruling Communist Party, which is at its core focused on social stability. It remains to be seen whether the Amendment will actually be enforced in a way that deters bribe-paying by PRC companies and citizens. (To be fair, a goodly number of countries have strict laws criminalizing bribery of foreign officials outside their countries but have done little to enforce these laws.)

How will this new law affect multinationals operating in China?

The impact will obviously depend on how a multinational structures its operations in China. The Amendment (like the underlying Criminal Law) applies to all PRC citizens, wherever located, all natural persons of any nationality within China, and all companies, enterprises, and institutions organized under PRC law, which generally includes, in addition to PRC domestic companies, Sino-foreign joint ventures, wholly foreign-owned enterprises (WFOEs), and representative offices. Under the Amendment, a joint venture between a PRC company and a non-PRC company organized under PRC law, or a WFOE, could be prosecuted for paying bribes to non-PRC government officials. (Paying bribes to Chinese government officials is of course already illegal under pre-existing law.)

For most multinationals whose China operations don’t do any business outside of China, the larger risk may be China’s existing criminal and commercial bribery laws. (Many multinationals operating in China are not aware of local commercial bribery laws, which prohibit both public- and private-sector bribery.)


As suggested above, having a law on the books and enforcing a law can sometimes be two different things. However, based on numerous media reports (see here for instance) there would seem to be plenty of enforcement opportunities when China’s law comes into force.

The Shrinking U.K. Bribery Act

Recent developments reported by the U.K. Telegraph suggest that when Bribery Act guidance is finalized and released, the Bribery Act will look very much like the FCPA. In fact, because of the Bribery Act’s adequate procedures defense and other hinted at limitations, the Bribery Act may turn out to be more lenient than the FCPA.

The Telegraph reported (here) that eventual guidance to be released by the U.K. government “will make allowances for the use of so-called ‘facilitating payments'” and that the guidance “will clarify how the law will view corporate hospitality and will give companies some protection against illegal acts committed by joint venture partners.”

According to the Telegraph, “the new guidance will acknowledge [facilitating payments] payments are a global problem that cannot be eradicated overnight.” According to the Telegraph, the eventual guidance “will say that while facilitating payments remain illegal, payments not considered ‘serious’ may not attract prosecution.”

This eventual guidance seems to be similar to the conclusion Congress arrived at in 1977 when enacting the FCPA. For instance, House Report No. 95-640 (September 28, 1977) states as follows:

“The language of the bill is deliberately cast in terms which differentiate between [corrupt payments] and facilitating payments, sometimes called ‘grease payments.’ […] For example, a gratuity paid to a customs official to speed the processing of a customs document would not be reached by this bill. Nor would it reach payments made to secure permits, licenses, or the expeditious performance of similar duties of an essentially ministerial or clerical nature which must of necessity be performed in any event. While payments made to assure or to speed the proper performance of a foreign official’s duties may be reprehensible in the United States, the committee recognizes that they are not necessarily so viewed elsewhere in the world and that it is not feasible for the United States to attempt unilaterally to eradicate all such payments. As a result, the committee has not attempted to reach such payments.”

Even though the Bribery Act will still apparently prohibit facilitating payments – in contrast to the FCPA’s express facilitating payment exception – numerous prior posts (see here, here and here for example as well as all the CustomsGate enforcement actions) raise the issue of whether the enforcement agencies recognize such an exception and whether the FCPA’s facilitating payment exception has any real meaning.

The expected U.K. guidance on corporate hospitality would seem to be akin to the FCPA’s current affirmative defense for “reasonable and bona fide expenditures, such as travel and lodging expenses, incurred by or on behalf of a foreign official” ” directly related to (A) the promotion, demonstration, or explanation of products or services; or (B) the execution or performance of a contract with a foreign government or agency theorof.”

Without the benefit of an actual analysis of the expected guidance on joint ventures, it is a bit difficult to draw conclusions from the Telegraph article. But if, as reported, the eventual guidance “will give companies some protection against illegal acts committed by joint venture partners” this protection will make the Bribery Act even more lenient than the FCPA (or at least FCPA enforcement theories).

Several FCPA enforcement actions in recent years, including some of the most high profile (see e.g., Bonny Island, Nigeria enforcement actions), have been based on conduct of joint venture partners.

Of note, the reported U.K. guidance regarding joint ventures would seem to conflict with the justification underlining the recent SFO charges against MK Kellog Ltd. under the Proceeds of Crime Act. (See here).

The oft-cited statement that the Bribery Act is the “FCPA on steroids” was curious to begin with; the statement now appears to be completely off-base given expected guidance on the Bribery Act.

Another “Foreign Official” Challenge

In “The Facade of FCPA Enforcement” (here) I noted that “no enforcement agency interpretation contributes more to the facade of FCPA enforcement and no FCPA element is more urgently in need of judicial scrutiny than the FCPA’s ‘foreign official’ element.”

Last week, various defendants in the U.S. v. Stuart Carson et al. case filed a motion to dismiss challenging the DOJ’s interpretation that employees of alleged state-owned or state-controlled enterprises are “foreign officials” under the FCPA. See here for the prior post.

Yesterday, Lindsey Manufacturing Company, Keith Lindsey, and Steve Lee – defendants in U.S. v. Enrique Faustino Aguilar Noriega, et al. also filed a motion to dismiss challenging the same enforcement theory.

See here for the motion to dismiss.

Judge Blasts SEC’s Lack of Dilligence

Dig into the details of most FCPA enforcement actions and one quickly discovers that the conduct at issue is old – in some cases very old.

The February 2011 enforcement action against Tyson Foods for instance related to conduct between 2004 and 2006. See here for the SEC’s complaint.

The January 2011 enforcement action against Maxwell Technologies alleged conduct going back to 2002. See here for the SEC’s complaint.

The December 2010 enforcement action against Alcatel-Lucent alleged conduct going back to 2001. See here for the SEC’s complaint.

The June/July 2010 Bonny Island bribery enforcement actions alleged conduct going back to 1995. See here for the SEC’s complaint against Technip for instance.

The FCPA does not have a specific statute of limitations, rather the “catch-all” provisions in 18 USC 3282 (for criminal actions) and 28 USC 2462 (for civil actions) apply.

Cooperation is often the name of the game in FCPA enforcement inquiries and, because of that, tolling agreements are frequently agreed to. Thus, discussing a fundamental black-letter law concept like statute of limitations in the FCPA context seems foolish.

But imagine a world (a world that perhaps is slowly developing – see here for instance) in which individuals and companies in FCPA enforcement actions do mount legal defenses based on black-letter legal principles such as statute of limitations.

In that world, it is likely one would see judicial opinions like the recent opinion from U.S. District Court Judge Jane Boyle (N.D. Tex.) in SEC v. Microtune, Inc. et al (see here for the opinion).

The relevant facts are as follows.

In June 2008, the SEC filed an enforcement action against Microtune and two of its former executives alleging a fraudulent stock-option backdating scheme between 2000 and mid-2003. As noted in the opinion, the “crux” of the limitations defense “was that most of the acts forming the basis of the SEC’s case occured between 2001 and mid-2003.”

The precise issue before the court was “whether the doctrine of fraudulent concealment, relied on by the SEC, operate[d] to toll the running of the five-year limitations period under the facts of the case.” The SEC argued that it was entitled to judgment as a matter of law on the limitations defense “because the ‘discovery rule’ and certain equitable tolling principles including ‘fraudulent concealment’ and the ‘continuing violations doctrine’ applied and salvaged claims that would otherwise be barred by the five-year statute of limitations.” The court had previously rejected the SEC’s “discovery rule” and “continuing violations doctrine” claims, and focused on the SEC’s “fraudulent concealment” theory for tolling the statute of limitations.

The court noted that in order for the SEC to prevail on its “fraudulent concealment” claim, it had to show that it “acted diligently once [the SEC] had inquiry notice, i.e., once [the SEC] knew of or should have known of the facts giving rise to [its] claim.” The court held that there was “no genuine issue of material fact as to whether the SEC acted diligently nor as to whether the SEC discovered the alleged wrongdoing within the limitations period.”

As noted in the opinion, “when asked about the SEC’s diligence” counsel for the SEC explained as follows: “we, often for resource reasons, wait until the company does its own investigation before we complete ours.” [In July 2006, Microtune announced it was commencing an internal review as to the alleged practices].

Judge Boyle was not persuaded and stated as follows. “While perhaps an understandable method of allocating Commission resources, such justification does not excuse the SEC’s apparent inactivity from mid-2004 to mid-2006, when further investigation would have uncovered the full extent of Microtune’s backdating and would have allowed the SEC to bring a complaint against Microtune much earlier than 2008.”

Accordingly, the judge dismissed all claims against the defendants falling outside of the five year limitations period – except those saved as a result of tolling agreements reached in 2007 and 2008.

See here for an article about the ruling from Shannon Green at Corporate Counsel.

Ask any FCPA practitioner and, in a candid moment, they will tell you that SEC FCPA inquiries often unnecessarily drag on for many years, including long stretches of complete inactivity, unreturned phone calls, and other delays due to SEC resource issues – including turnover of SEC attorneys assigned to the case.

Again, because cooperation tends to be the name of the game in FCPA inquiries and because tolling agreements are frequently agreed to, the SEC’s lack of diligence in an FCPA matter is generally not a relevant issue.

However, every once in a while it is interesting to think of what would happen if FCPA enforcement largely took place in the context of an adversarial system.

The recent Microtune decision would seem to provide a glimpse.

Powered by WordPress. Designed by WooThemes