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In Sentencing Naaman, Judge Huvelle Dismisses DOJ’s Rhetoric And Refuses To Make Naaman The “Poster Child” The DOJ Would Like

By on January 23, 2012 in FCPA Sentences, Ousama Naaman

FCPA sentencing transcripts are interesting and informative reads.  Although there have been several recent FCPA trials, sentencing remains one of the few areas of FCPA enforcement in which someone other than the DOJ passes judgment on a FCPA defendant.  Although the DOJ has secured a few long sentences recently (see here), general trends demonstrate that sentencing judges often do not see FCPA enforcement actions the same way the DOJ does.

Case in point, Judge Ellen Huvelle’s (D.D.C.) recent sentence of Ousama Naaman, the former agent of Innospec.  See here for the prior post regarding Naaman’s 2010 plea.  As noted in this prior post, the DOJ recommended a 90-month sentence for Naaman.  However, as noted in this DOJ release, Judge Huvelle gave Naaman a 30-month sentence.  That is a meaningful rejection of the DOJ’s position in-and-of-itself.

It is clear from reading the transcript that the DOJ wanted Judge Huvelle to follow its recommendation to establish a benchmark for future cases.  Indeed, the DOJ has frequently made this argument in prior sentencing hearings ( i.e. Judge you need to give a stiff sentence because what you do in this case will affect future individual sentences).

During the hearing Nathaniel Edmonds (DOJ) stated as follows.  “[W]hat this Court does with respect to Mr. Naaman will set a benchmark of what other courts will do, and that has an impact.”  […]  [W]e are bringing more of these enforcement efforts, other judges will look to what this court does with respect to Mr. Naaman and then sentence others below him if they believe their conduct is not as egregious.”

The DOJ then cited the usual statistics regarding corruption.   “[T]he World Bank estimates that corruption is three percent of the world economy; a trillion dollars of bribes every single year.  That is not something that the U.S. Government, even working with all of our foreign partners around the world, can scratch the surface in enforcing.  The only way to try to change the corrupt conduct, to try to change the behavior is to change businesses, to change individuals from conducting, from choosing to commit these crimes of choice.”

Judge Huvell then stated as follows.  “This analogy is not apt.  And I don’t mean to suggest it’s like drugs, but, you know, the American companies want to do the business, and they engage in these practices to get the business and hire people to help them get the business.  It’s like the demand in this country for drugs.  We are not willing to give up operating in these countries, to say the least; nor should we.  But you know, you are looking at a way to solve the problem that is somewhat limited in your vision, it seems to me.  I mean, I cannot take this position that I, in some way, am really solving a large, worldwide problem of corruption.  If you go to any other part of the world, the American companies want to participate, and they engage in practices that we have outlawed for good reason.  I understand that.  But just — I am not going to take on my shoulders what you are trying to put.  I just don’t see it that way.”

Edmonds then stated as follows.  “Let me just state very clearly that we have gone from a nascent fight against corruption where the Department of Justice was doing it essentially by itself, where we have now broadened that where Russia has passed new laws.  China has passed new laws.  I would not say that our vision, the U.S. Department of Justice’s vision, is short.  It would say it’s long-term.  This is not a project which is going to be five years.  It is not a project that’s ten years.  This is a project which is thirty years.  And that Your Honor, I think, is the most important thing to remember, that your sentence with Mr. Naaman will last beyond any period of incarceration that Mr. Naaman faces, that what you have here will serve as precedent for the U.K., because the U.K. will key off the decisions and the sentence that you have for Mr. Naaman …”.

Judge Huvell refused to bear the cross the DOJ wanted her to bear just because some other judges in the world might follow her lead.  Judge Huvell then stated as follows.  “It is a mixed, sort of complicated situation.  I, for one, have traveled a lot in this world, and it is very complicated to say that our morality is necessarily that of other peoples.  And I don’t suggest that we should not try.  But to say that in the early 2000’s, that I should ignore context, that because Iraq has contributed — or collaborated with us in order to clean it up — [Naaman] cannot be the poster child that Mr. Edmonds [DOJ] would like.”

Naaman was represented by Abbe Lowell (Chaborune & Park – here), Peter Clark (Cadwalader, Wickersham & Taft – here), and James Common (McDermott, Will & Emery – here).

Picking and Choosing?

By on February 1, 2011 in BAE, Debarment, FCPA Sentences, Giffen, OECD, Ousama Naaman

The sentencing memos in the Ousama Naaman matter are interesting reads. Naaman’s memo (here), submitted by Abbe Lowell of McDermott Will & Emery (here), provides a glimpse into cooperation by an individual FCPA defendant.

The DOJ’s memo (here), while requesting a downward departure, details how Naaman’s cooperation was not great at all and how Naaman is seemingly contesting various facts and issues he agreed to in pleading guilty.

The DOJ seeks a recommended sentence of 90 months (7.5 years) which would result in 79 months of additional incarceration given that Naaman has already 11 months of time served.

As previously reported (here), Naaman’s sentencing has been delayed until April 18th.

One aspect of the DOJ’s sentencing memo I found interesting is where the DOJ warns the judge that a “minimal sentence could not only possible be construed as a violation of U.S. treaty obligations […] but could do much to undermine the efforts by the United States Departments of Commerce and State to educate U.S. businesses about the harm caused by and risk of engaging in transnational bribery.” (See pgs. 34-36).

The treaty reference is to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (see here) and the DOJ specifically cites Art. 3 Sec. 1 – “The bribery of a foreign public official shall be punishable by effective, proportionate and dissuasive criminal penalties. The range of penalties shall be comparable to that applicable to the bribery of the Party’s own public officials.”

Is the DOJ picking and choosing which articles of the OECD Convention it wants to abide by?

Article 5 of the same OECD Convention, under the heading “Enforcement,” states that investigation and prosecution of bribery offenses “shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

Are we to believe that the Giffen prosecution (see here for prior posts) was not influenced by considerations on the “potential effect upon relations with another state.”?

Are we to believe that the BAE prosecution and the lack of FCPA charges (see here for the prior post) was not influenced by “considerations of national economic interest” or the “identity of the natural or legal persons involved.”

It would seem that every time the DOJ specifically states in a sentencing memo (i.e. Siemens, BAE, Daimler, etc.) that, in deciding how to resolve a case, it considered the collateral consequences – including the risk of debarment and exclusion from government contracts – that prosecution of the offense is being “influenced by considerations of national economic interest” or the “identity of the natural or legal persons involved.”

In an effort to avoid yet another rejection of its FCPA sentencing recommendation, the DOJ is now warning a judge that a “minimal sentence” could be “construed as a violation of U.S. treaty obligations.”

In doing so, is the DOJ picking and choosing which articles of the OECD Convention it will abide by?

Innospec Related News

By on August 10, 2010 in 2010 Enforcement Actions, David Turner, Individual Enforcement Action, Indonesia, Innospec, Iraq, Oil for Food Enforcement Action, Ousama Naaman, Private Right of Action, Related Civil Litigation, Reputational Damage, SEC Enforcement Action

In March, Innospec (a global chemical company) settled bribery enforcement actions on both sides of the Atlantic (see here).

This post discusses recent Innospec news – the SEC enforcement action against an Innospec agent (an individual who previously plead guilty to a DOJ enforcement action – see here) and a former Business Director at the company; a civil suit filed by an Innospec competitor in U.S. District Court in Richmond, Virginia; and how Innospec continues to grow its cash coffers despite receiving a pass on $50 million in fines and penalties in the March enforcement action based on inability to pay.

SEC Enforcement Action Against Turner and Naaman

Last week, the SEC added to Ousama Naaman’s legal woes charging him (see here) with civil FCPA anti-bribery violations, knowingly circumventing or knowingly falsifying books and records, and aiding and abetting Innospec’s FCPA books and records and internal control violations. According to the SEC release (see here) Naaman, Innospec’s agent in Iraq, agreed to disgorge $810,076 plus prejudgment interest of $67,030 and pay a penalty of $438,038 that will be deemed satisfied by his criminal fine. The disgorgement amount represents commissions Naaman received from Innospec “for his role in funneling bribe payments.” To my knowledge, the approximate $877,000 the SEC will recover from Naaman is the largest SEC recovery against an individual FCPA defendant.

In the same complaint, the SEC also charged David Turner, the Business Director of Innospec’s TEL Group, with the same substantive charges as Naaman. According to the complaint, Turner (a U.K. citizen who left Innospec in June 2009) “actively participated” in Innospec’s bribery and kickback schemes in Iraq and “actively participated” in Innospec’s bribery scheme in Indonesia.

According to the complaint:

“Turner was aware of the kickback scheme in connection with the Oil for Food Program. At some point in late 2002 or early 2003 Innospec’s internal auditors questioned Turner about the nature of the commission payments that were made to Naaman under the U.N. Oil for Food Program. Turner made false statements to the auditors and concealed the fact that the commission payments to Naaman included kickbacks to the Iraqi government in return for Oil for Food contracts. Turner also made false statements when he signed annual-certifications that were provided to auditors up until 2008 where Turner falsely stated that he had complied with Innospec’s Code of Ethics incorporating the company’s Foreign Corrupt Practices Act policy prohibiting kickbacks and bribery, and that he was unaware of any violations of the Code of Ethics by anyone at Innospec.”

Even after the Oil for Food Program was terminated in late 2003, the complaint alleges that “Turner, along with senior officials at Innospec, directed and approved” additional bribe payments to Iraqi officials. In addition, the complaint alleges that “Turner and other Innospec officials directed and authorized payments, through Naaman, to fund lavish trips for Iraqi officials.”

As to Indonesia, the complaint alleges that “Turner, along with senior officials at Innospec, authorized and directed the payment of bribes to Indonesian government officials from at least 2000 through 2005, in order to win contracts for Innospec for the sale of TEL to state owned oil and gas companies in Indonesia.” According to the complaint, Turner and other Innospec officials and employees used various “euphemisms” in e-mail communications and in discussions to refer to the bribery scheme.

According to the complaint, Turner “obtained $40,000 in bonuses that were tied to the success of the TEL sales, which were procured through bribery.”

According to the SEC release, Turner, without admitting or denying the SEC’s allegations, consented to entry of a final judgment requiring him to disgorge $40,000. The release states that no civil penalty will be imposed on Turner “based on, among other things, Turner’s extensive and ongoing cooperation in the investigation.”

Competitor Sues Innospec

The FCPA does not have a private right of action (although as I explored in this post it would be interesting if a court were faced with this issue today).

However, a company that settles an FCPA enforcement action increasingly faces collateral litigation, most often shareholder derivative claims. If a plaintiff does craft a direct cause of action against the company, it is usually a RICO claim.

As noted in this Richmond Times-Dispatch story, NewMarket Corp.’s civil case against Innospec does not fit the above mold, rather it alleges that Innospec’s conduct, as set forth in the DOJ and SEC enforcement actions, violated the Robinson-Patman Act and the Virginia Antitrust Act as well as the Virginia Business Conspiracy Act.

The article quotes NewMarket’s principal financial officer as saying that the company learned of Innospec’s actions after reading the documents released in connection with the March enforcement action. Among other things, the DOJ and SEC alleged that Innospec’s bribe payments in Iraq ensured that a field test of a competitor’s fuel additive failed. NewMarket claims that the competitor was a subsidiary company Ethyl Petroleum Additives Inc. which now goes by the name Afton Chemical Corp.

Innospec Continues to Be In the Money

In this prior post I highlighted how Innospec was ordered to pay $60,071,613 in disgorgement in the SEC’s enforcement action, but because of Innospec’s “sworn Statement of Financial Condition” all but $11,200,000 of that disgorgement was waived.

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

I then noted that Innospec’s first quarter financial results were positive and that
“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 recently reported its second quarter financial results and it continues to be in the money. As noted in this company release:

“As of June 30, 2010, Innospec had $77.0 million in cash and cash equivalents, $30.0 million more than its total debt of $47.0 million.”

The company’s President and Chief Executive Officer stated that “Innospec’s second quarter operating results were very strong, with impressive double-digit increases in sales and operating income across all three business segments.”

Innospec Agent Pleads Guilty

By on June 28, 2010 in Foreign Nationals, Innospec, Iraq, Jurisdiction, Oil for Food Enforcement Action, Ousama Naaman

Approximately one year ago, a criminal indictment against Ousama Naaman was unsealed (see here). The indictment charged Naaman, a dual Canadian and Lebanese national, with violating the FCPA and conspiring to violate the FCPA and commit wire fraud, while acting on behalf of a U.S. public chemical company and its subsidiary in connection with kickback payments to the Iraqi government under the United Nations Oil for Food Program. The indictment also charged Naaman with making payments on behalf of the company to Iraqi Ministry of Oil officials.

Since then, Naaman was extradited to the U.S. and the chemical company was identified as Innospec – which resolved its own FCPA enforcement action in March (see here).

As noted in this DOJ release, last Friday Naaman “pleaded guilty … to a two-count superseding information filed June 24, 2010, charging him with one count of conspiracy to commit wire fraud, violate the Foreign Corrupt Practices Act (FCPA), and falsify the books and records of a U.S. issuer; and one count of violating the FCPA.”

According to the release:

“From 2001 to 2003, acting on behalf of Innospec, Naaman offered and paid 10 percent kickbacks to the then Iraqi government in exchange for five contracts under the OFFP. Naaman negotiated the contracts, including a 10 percent increase in the price to cover the kickback, and routed the funds to Iraqi government accounts in the Middle East. Innospec inflated its prices in contracts approved by the OFFP to cover the cost of the kickbacks. Naaman also admitted that from 2004 to 2008, he paid and promised to pay more than $3 million in bribes, in the form of cash, as well as travel, gifts and entertainment, to officials of the Iraqi Ministry of Oil and the Trade Bank of Iraq to secure sales of tetraethyl lead in Iraq, as well as to secure more favorable exchange rates on the contracts. Naaman provided Innospec with false invoices to support the payments, and those invoices were incorporated into the books and records of Innospec.”

For additional coverage of the Naaman plea, see here from Christopher Matthews at Main Justice.

In 1998, the FCPA’s antibribery provisions were amended to, among other things, broaden the jurisdictional reach of the statute to prohibit “any person” “while in the territory of the U.S.” from making improper payments through “use of the mails or any means or instrumentality of interstate commerce” or from doing “any other act in furtherance” of an improper payment. (see 15 USC 78dd-3(a)). “Any person” is generally defined to include any person other than a U.S. national or any business organization organized under the laws of a foreign nation. (see 15 USC 78dd-3(f)).

In other words … the FCPA … it isn’t just for Americans.

Ousama Naaman found out the hard way.

Other foreign nationals that have been the focus of FCPA enforcement actions include Jeffrey Tesler and Wojciech Chodan (both U.K. citizens criminally indicted for their roles in the KBR / Halliburton bribery scheme)(see here) and Chrisitan Sapsizian (a French citizen who pleaded guilty to violating the FCPA for his role in a scheme to bribe Costa Rican foreign officials) (see here).

Innospec Gets Hit on Both Sides of the Atlantic

By on March 19, 2010 in 2010 Enforcement Actions, Chemical Industry, Cuba, DOJ Enforcement Action, FCPA Related Charges, Indonesia, Innospec, Iraq, Oil for Food Enforcement Action, Ousama Naaman, SEC Enforcement Action

Last month (see here) Innospec, Inc. disclosed that it accured $40.2 million for potential settlement of corruption investigations on both sides of the Atlantic. Yesterday, on both sides of the Atlantic, it was announced that Innospec agreed to resolve these enforcement actions by, among other things, paying $40.2 million in combined fines and penalties. How’s that for an accurate corporate disclosure!

See here for the DOJ release and criminal information, here for the SEC release and complaint, and here for the SFO release and supporting documents.

If you are looking for additional evidence / validation that the DOJ and SFO cooperate in enforcement actions, this would be it!

As explained more fully below, the Innospec enforcement action is part Iraqi Oil for Food, part payment of excessive travel and entertainmet expenses, part Cuba, part Indonesia and it involves U.S. companies, U.K. entities, Swiss entities, U.S. citizens, British citizens, German citizens, South African citizens, and Iraqi citizens.

Innospec manufacturers and sells speciality chemicals and is apparently the “world’s only manufacturer of the anti-knock compound tetraethyl lead, used in leaded gasoline.”

DOJ

According to the DOJ criminal information (here), Innospec, Innospec Limited (a wholly-owned U.K. subsidiary), Alcor Chemie Vertriebs GmbH (a wholly-owned Swiss subsidiary), Ousama Naaman (an agent for Innospec and Alcor in Iraq and elsewhere), and others, knowingly conspired: (i) to defraud the U.N. Oil for Food Program; (ii) to violate the FCPA’s antibribery provisions; and (iii) to violate the FCPA’s books and records provisions.

According to the information, the primary purpose of the conspiracy was to “obtain and retain lucrative business with the government of Iraq through payment and promise of payment of kickbacks and bribes to the Iraqi government and its officials.

In addition to the “standard” Oil for Food allegations found in previous enforcement actions (i.e. inflated commission payments to an agent which were then used to pay kickbacks to the government of Iraq), the information further alleges that “Naaman, on behalf of Innospec, paid approximately $150,000 in bribes to officials of the [Ministry of Oil (“MoO”)] to ensure” that a competitor’s product “failed a field trial test and therefore would not be used by the [MoO]…”

In addition, the information alleges that “Innospec and Naaman agreed to pay and promise to pay bribes, including but not limited to money, travel, gifts, and entertainment, to officials of the MoO to obtain and retain contracts.”

Among other overt acts, the information details an e-mail Naaman sent to, among others, Executive B (a U.S. citizen and former senior Innospec executive) that indicates “with [Director’s (a U.K. citizen and former Innospec Division Managing Director)] instructions, we proceeded, as we don’t want to discuss this issue in writing any further because it is so delicate, and as per [Director’s] instructions that we don’t elaborate in writing, for which I agree.”

According to the information, Innospec paid Naaman over $700,000 to reimburse him for payments to Iraqi officials.

The information also contains “travel” allegations including: that Innospec paid approximately $35,000 for eight Iraqi officials to travel to Switzerland for a morning meeting and “four days of sightseeing” complete with “9,000 in pocket money” for the officials;” that Naaman arranged for cash filled envelopes to be given to Iraqi officials visiting the U.K.; that Innospec paid for an Iraqi official’s “vacation with his wife in Thailand” a trip with cost approximately $13,000 including “pocket money” for the official; and that Alcor reimbursed Naaman $35,000 “to cover the cost of the travel of the three Iraqi MoO officials to Lebanon for the half-day meeting to finalize the 2008 Long Term Purchase Agreement, including hotel accomodations for six days, $1,800 for ‘entertainment, lunches, & dinners in Lebanon,’ $1,650 for ‘mobile phone cards for international calling + 3 cameras’ and $15,000 in ‘pocket money.'”

According to the information, all of these payments were improperly recorded on Alcor’s books and records (which were consolidatd with Innospec’s for purposes of financial reporting) as “commissions” or “sales promotion expenditures.”

In addition to the above described conspiracy charge, the information also charges five counts of wire fraud, five counts of FCPA antibribery violations and an FCPA books and records violation.

The DOJ release notes that, pursuant to a yet to be released plea agreement, “Innospec also admitted to selling chemicals to Cuban power plants in violation of the U.S. embargo against Cuba.” The DOJ release further notes that Innospec acknowledged paying “approximately $2.9 million in bribes to officials of the Indonesian government to secure sales.”

According to the DOJ release, as part of the plea agreement, “Innospec agreed to pay a $14.1 million criminal fine and to retain an independent compliance monitor for a minimum of three years to oversee the implementation of a robust anti-corruption and export control compliance program and report periodically to the DOJ.” According to the release, “Innospec also agreed to fully cooperate with the DOJ and other U.S. and foreign authorities in ongoing investigations of corrupt payments by Innospec employees and agents.”

In other words, stayed tuned for more. Previously, Naaman (the agent) was indicted (see here).

In annoucing the charges, Assistant Attorney General Lanny Breuer noted that “[t]oday’s case is a win for law-abiding companies trying to compete fairly in the marketplace” and that “fraud and corruption cannot be viewed simply as a cost of doing business.”

For more on the Innospec plea hearing, including Judge Ellen Segal Huvelle’s concern about the compliance monitor, see here for Christopher Matthew’s piece from Main Justice. For more on compliance monitors, and the controversy often associated with them, see here.

SEC

In its complaint (here), the SEC alleges that “[f]rom 2000 to 2007, Innospec violated the anti-bribery, books and records and internal control provisions of the FCPA when it routinely paid bribes in order to sell Tetra Ethyl Lead (“TEL”) … to government owned refineries and oil companies in Iraq and Indonesia.”

According to the SEC, “Innospec’s former management did nothing to stop the bribery activity, and in fact authorized and encouraged it.” The SEC alleges that “Innospec’s internal controls failed to detect the illicit conduct, which continued for nearly a decade.”

According to the SEC, “[i]n all, Innospec made illicit payments of approximately $6,347,588 and promised an additional $2,870,377 in illicit payments to Iraqi ministries, Iraqi government officials, and Indonesian government officials in exchange for contracts worth $176,717,341 in revenues and profits of $60,071,613.”

The SEC’s charges relating to Iraqi are substantively similar to the DOJ’s allegations in the criminal information and include both Iraqi Oil for Food conduct as well as additional improper conduct after the Oil for Food Program was terminated in late 2003.

The SEC’s complaint has more detail than the DOJ’s criminal information concerning Indonesia and alleges: (i) that “[f]rom 2000 until approximately 2005, Innospec used [a] Indonesian Agent [an Indonesian citizen] and his company to pay bribes of approximately $1,323,507 to Official X [a senior official at BP Migas, an Indonesian state owned oil and gas company … who previously was a senior official at the Ministry of Energy and Mineral Resources]”; (ii) that “in 2000 and 2001, Innospec also made payments [totaling $700,000] to government officials at Pertamina, another state owned oil compay related to BP Migas” through a “privately owned bank in Geneva, Switzerland;” and (iii) that Innospec “also bribed other officials at Pertamina in order to influence their decisions regarding TEL purchases.”

The SEC charged that “at least one U.S. person and officer was complicit in the scheme” and that “[m]any of the bribes were mischaracterized as legitimate commissions, travel and legal fees in Innospec’s books and records.”

According to the SEC, “as evidenced by the extent and duration of the improper payments to foreign officials made by Innospec, the improper recording of these payments in Innospec’s books and records, and the significant involvement of certain members of management at the highest levels of the company, Innospec failed to devise and maintain an effective system of internal controls to prevent or detect these anti-bribery and books and records violations.

The SEC release (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 will be 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.

***

Stay tuned for additional analysis of the SFO – U.K. prong of this enforcement action.

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