Category: Trade Barriers and Distortions

Friday Roundup

Scrutiny alerts, quotable, and for the reading stack.  It’s all here in the Friday roundup.

Scrutiny Alerts

Nortek

Nortek Inc.  recently disclosed:

“As part of our routine internal audit activities, Nortek, Inc. (the “Company” or “we”) discovered certain questionable hospitality, gift and payment practices, and other expenses at the Company’s subsidiary, Linear Electronics (Shenzhen) Co. Ltd. (“Linear China”), which are inconsistent with the Company’s policies and raise concerns under the U.S. Foreign Corrupt Practices Act (“FCPA”) and perhaps under other applicable anti-corruption laws. The Company initiated an internal investigation into these practices and payments with the assistance of outside counsel. On January 7, 2015 and January 8, 2015, respectively, we voluntarily contacted the United States Securities and Exchange Commission (“SEC”) and the United States Department of Justice (“DOJ”) to advise both agencies of our internal investigation. The Company intends to cooperate with any SEC or DOJ investigation into these matters. The Company takes these matters very seriously and is committed to conducting its business in compliance with all applicable laws. Based on information known at this time, we currently believe that the amount of the questionable expenses and payments is not material with respect to the Company’s financial condition or results of operations. However, at this time, we are unable to predict, what, if any, action may be taken by the DOJ or SEC or any penalties or remedial measures these agencies may seek, but intend to cooperate with both agencies. Any determination that our operations or activities are not in compliance with existing laws or regulations could result in the imposition of fines, civil and criminal penalties, and equitable remedies, including disgorgement or injunctive relief. Nortek’s Linear China location manufactures products primarily for our Security and Control Solutions Segment and does not sell products to third parties.”

Sony

Last week’s Friday Roundup highlighted the FCPA scrutiny of Sony and other Hollywood film studies in China.

“Sony Corp.’s entertainment unit investigated its Indian operations for possible legal violations including bidding fraud and kickbacks, according to internal e-mails released by hackers, highlighting challenges the company has faced in the country. Sony enlisted Ernst & Young to look into its businesses in the country and uncovered potential evidence of wrongdoing, according to the e-mails. In one case, investigators found that a joint venture between Sony and Discovery Communications Inc. (DISCA) may have engaged in fraudulent bids, kickbacks and excessive handouts to government officials …”

According to the article, there are various “areas of concern” including: “potential gifts and entertainment of Indian government officials” such as providing tickets to IPL cricket matches to public servants, as well as laptop bags that were requested as gifts for government officials during the Diwali festival.”

“This really shows that Transparency International is not as pure as people think. Transparency International’s own policy forbids accepting money from corrupt companies. Period. Even though the Siemens bribery scandal broke in 2006, the company is still being investigated in more than 20 countries — in Europe, Asia, the Americas, Africa and the Middle East. All over the world, Siemens is still under suspicion.”

In this recent speech, Deputy Assistant Attorney General Sung-Hee Suh spoke “about the Criminal Division’s white-collar criminal enforcement priorities now and in the coming year.” Among other things, Suh stated:  

“The prosecution of individuals—including corporate executives—for criminal wrongdoing continues to be a high priority for the department.  That is not to say that we will be looking to charge individuals to the exclusion of corporations. However, corporations do not act criminally, but for the actions of individuals.  And, the Criminal Division intends to prosecute those individuals, whether they are sitting on a sales desk or in a corporate suite. It is within this framework that we are also seeking to reshape the conversation about corporate cooperation to some extent.  Corporations too often overlook a key consideration that the department has long expressed in our Principles of Federal Prosecution, which guide our prosecutorial decisions:  That is a corporation’s willingness to cooperate in the investigation of its culpable executives. Of course, corporations—like individuals—are not required to cooperate.  A corporation may make a business or strategic decision not to cooperate.  However, if a corporation does elect to cooperate with the department, it should be mindful of the fact that the department does not view voluntary disclosure as true cooperation, if the company avoids identifying the individuals who are criminally responsible for the corporate misconduct. Even the identification of culpable individuals is not true cooperation, if the company intentionally fails to locate and provide facts and evidence at their disposal that implicate those individuals.  The Criminal Division will be looking long and hard at corporations who purport to cooperate, but fail to provide timely and full information about the criminal misconduct of their executives. In the past year, the Criminal Division has demonstrated its continued commitment to the prosecution of individual wrongdoers in the corporate context.  I will highlight a few examples. On the FCPA front, since 2009, we have convicted 50 individuals in FCPA and FCPA-related cases, and resolved criminal cases against 59 companies with penalties and forfeiture of almost $4 billion.  Within the last two years alone, we have charged, resolved by plea, or unsealed cases against 26 individuals, and 14 corporations have resolved FCPA violations with combined penalties and forfeiture of more than $1.6 billion. As just one example, the department unsealed charges against the former co-CEOs and general counsel of PetroTiger Ltd., a BVI oil and gas company with offices in New Jersey, for allegedly paying bribes to an official in Colombia in exchange for assistance in securing approval for an oil services contract worth $39 million. The general counsel and one of the CEOs already pleaded guilty to bribery and fraud charges, and the other former CEO is headed for trial. This case was brought to the attention of the department through voluntary disclosure by PetroTiger, which cooperated with the department’s investigation.  Notably, no charges of any kind were filed against PetroTiger. An example on the flip side is the Alstom case, an FCPA investigation stemming from a widespread scheme involving tens of millions of dollars in bribes spanning the globe, including Indonesia, Saudi Arabia, Egypt, and the Bahamas. When the Criminal Division learned of the misconduct and launched an investigation, Alstom opted not to cooperate at the outset.  What ensued was an extensive multi-tool investigation involving recordings, interviews, subpoenas, MLAT requests, the use of cooperating witnesses, and more. As of today, four individual Alstom executives have been charged; three of them have pleaded guilty; Alstom’s consortium partner, Marubeni, was charged and pleaded guilty; and Alstom pleaded guilty and agreed to pay a record $772 million fine.  And that only accounts for the charges in the United States. As I have said, we want corporations to cooperate, and will provide appropriate incentives.  But, we will not rely exclusively upon corporate cooperation to make our cases against the individual wrongdoers.

[…]

To do these complex, international investigations, we are increasingly coordinating with domestic and foreign regulators and law enforcement counterparts, some of whom are on this panel today. In working with our foreign counterparts, we have developed growing sophistication and experience in a variety of areas, including analyzing foreign data privacy laws and corporations’ claims that overseas documents cannot be provided to investigators in the United States. We are also building and relying upon on our relationships with our foreign counterparts to gather evidence, locate individuals overseas, conduct parallel investigations of similar conduct, and, when appropriate, coordinate the timing and scope of resolutions. Yes, just as we are coordinating our investigations, we are likewise willing to coordinate our resolutions, including accounting for the corporate monetary penalties paid in other jurisdictions when appropriate. This is all to say that you should expect to see these meaningful, multinational investigations and prosecutions of corporations and individuals to continue.”

*****

These pages have frequently highlighted how the root cause of bribery and corruption is often foreign trade barriers and distortions.

Jeremy Douglas (who leads the United Nation’s regional Office on Drugs and Crime for Southeast Asia and the Pacific) was thus spot-on in this recent Q&A.

“Q: How do western companies get themselves into trouble in the region?

A: … What we see in the region is that bureaucracies and government structures tend to be highly personalized. People are ensconced in key positions i.e. government procurement positions, or people in the position to give government contracts, let’s say building a power plant. [These officials] are in powerful positions to ease up administrative procedures and accelerate red tape and issue licenses. So companies can be drawn into scenarios where they are paying facilitation fees or their intermediaries are paying facilitation fees. [Much of] Southeast Asia doesn’t have a lot of the regulatory structure–the checks and balances you have in the [U.S. or Canada] so companies come in and run into very powerful persons in those structures, and they know if they can influence these officials, they can get what they need to win business.”

Reading Stack

“Transparency International pioneered the corruption index in the early 1990s. They rank countries from most corrupt to the least corrupt. And they are based on public perception – perception of business people and experts from outside the country. They come up with these numbers that are attractive to the press. And it has put Transparency International on the map. They are simple minded surveys. But they don’t really mean a lot. The idea of corruption in these surveys is simple bribery — cash changing hands. It’s the proverbial cash in the piano or the freezer. Corruption is reduced to bribery. In fact, today’s most savvy power brokers are engaged in a kind of corruption that is much more subtle and more difficult to detect. Today’s most corrupt players, at least in the West, don’t need this quid pro quo corruption. They are far beyond that. That’s for the little players. That’s for the small fry. That’s a key point of Unaccountable.”

*****

This Op-Ed about Chinese law enforcement (in the corruption space and otherwise) states: “China’s leaders must realize that even the perception that they are targeting foreign businesses disproportionately can create great harm.”  Against this backdrop, is the following fact.  8 of the top 10 FCPA enforcement actions (in terms of settlement amounts) have been against foreign companies and are often based on sparse jurisdictional allegations.

*****

From the Singapore Corrupt Practices Investigation Bureau

“Public Officers Rejecting Bribe Offers

Issues To Consider From The Avon Enforcement Action

This recent post dived deep into the Avon FCPA enforcement action.

This post continues the analysis by highlighting various issues to consider associated with the enforcement action.

The Gray Cloud of FCPA Scrutiny Lasted A Long Time And Was Very Expensive

Avon disclosed its FCPA scrutiny in China in October 2008.  In other words, it was 6 years and 2 months from the time of disclosure to the actual enforcement action.  While FCPA scrutiny typically lasts between 2-4 years, Avon’s FCPA scrutiny was extraordinarily long.  (For additional reading see this prior post “The Gray Cloud of FCPA Scrutiny Simply Lasts Too Long”).

Avon’s FCPA scrutiny was also very expensive.  For years, the whisper in the FCPA community was how expensive  – and dragged out – FCPA’s internal investigation and pre-enforcement professional fees and expenses were.  Not all companies disclose pre-enforcement action professional fees and expenses, but Avon did and those figures were approximately $500 million (see here).

Avon’s FCPA scrutiny thus supported the claim in my article “Foreign Corrupt Practices Act Ripples” that settlement amounts in an actual FCPA enforcement action are often only a relatively minor component of the overall financial consequences that can result from FCPA scrutiny or enforcement in this new era.  Indeed, the broader effects of Avon’s FCPA scrutiny (including pre-enforcement action professional fees and expenses and an impact on bond ratings) is discussed in the article.

Given the above-mentioned whispers, one of the most interesting portions of the DOJ’s DPA was the following.

“The Department also considered that the Company, taking into account its own business interests, expended considerable resources on a company wide review of and enhancements to its compliance program and internal controls.  While the Company’s efforts in this regard were taken without Department request or guidance, and at times caused unintended delays in the progress of the Department’s narrower investigations, the Department recognizes that the Company’s efforts resulted in important compliance and internal controls improvements.”

Root Cause

It has been highlighted numerous times on these pages (see here for instance).

The root cause of many FCPA enforcement actions are foreign trade barriers and distortions.  The narrative is rather simple.

• Trade barriers and distortions create bureaucracy.
• Bureaucracy creates points of contact with foreign officials.
• Points of contact with foreign officials create discretion.
• Discretion creates the opportunity for a foreign official to misuse their position by making bribe demands.

The following is not meant to excuse Avon’s conduct, only to put it in the proper perspective.

The root cause of Avon’s FCPA scrutiny was that China had significant trade barriers and distortions applicable to direct selling of products.  As highlighted in the resolution documents, “under China’s newly promulgated direct selling regulations, to conduct direct sales, a company was required to obtain a national direct selling license and approvals from each province and municipality in which it sought to conduct direct sales.”

As I have long argued, the way to reduce bribery is not just to bring more corporate enforcement actions.  It is to address the root causes of bribery by seeking a reduction in trade barriers and distortions.

Two Enforcement Actions In One

The Avon enforcement action was really two distinct enforcement actions in terms of conduct.

On one level, Avon’s indirect China subsidiary intentionally disguised certain payments of things of value (individually small, but in the aggregate large) from Avon during the general time period in which they were occurring.

Yet, the second prong of the enforcement action, more problematic from a corporate governance standpoint, is that once Avon learned of the improper conduct in 2005/2006, Avon failed to take steps to stop and remedy the situation.

Much like the developing story around Wal-Mart’s FCPA scrutiny, Avon appears to be more of a corporate governance sandwich with the FCPA as a mere condiment.  Based on the conduct alleged by the DOJ and SEC, Avon (the parent company) appeared to fail to take ownership of the issues at its indirect China subsidiary on a real-time basis.  (For additional details on this aspect of the enforcement action see this prior post).

If “only” the alleged improper payments by Avon China had taken place, it stands to reason that the settlement amount would have been much lower.

Surprisingly Limited

Based on Avon’s pre-enforcement action disclosures, many were expecting that the Avon FCPA enforcement would be broader than just China.  After all, Avon disclosed that it was conducting an internal review in a “number of countries selected to represent each of the Company’s international geographic segments” and according to its website the company does business in over 100 countries.

That the Avon enforcement action was limited to China highlights an issue that can be highlighted in most FCPA enforcement actions.  While it is easy in hindsight to fault a company for internal control failures as to the specific payments alleged, that the company conducted an internal review in many other countries and found nothing (at least nothing serious enough to be alleged in an FCPA enforcement action) does suggests that the company’s overall internal controls were reasonable and adequate.

Trade Barriers And Distortions As A Root Cause Of Bribery – A Focus On China

I do not normally cite Chinese criminal defendants; in fact, I never have.

Yet, individuals from all circumstances in life are capable of recognizing the big picture and when such individuals with actual experience with the root causes of bribery make a valid point, we should at least take notice.

As highlighted in this recent Wall Street Journal article, Liu Tienan (the former head of China’s National Energy Administration and Senior Director in the National Development Reform Commission) admitted to accepting bribes in connection with various projects.  As noted in the article, “in his three decades at NDRC, Mr. Liu became one of the most powerful party officials running an agency that is rooted in China’s Communist past and that still decides which companies can expand and how banks should allocate loans.”

As noted in the article, at a hearing Mr. Liu reportedly testified that reducing official power is key to curbing corruption and stated “the major point, which is based on my own experience, is to give the market a great deal of power to make decisions.”

As Tom Fox observed on his FCPA Compliance and Ethics Blog, “it is almost if Lui is channeling his inner FCPA Professor when he speaks against artificial barriers to market entry.”

Indeed, I have long maintained that trade barriers and distortions are often the root causes of bribery and a reduction in bribery will not be achieved without a reduction in trade barriers and distortions.

These barriers and distortions – whether complex customs procedures, import documentation and inspection requirements, local sponsor or other third-party requirements, arcane licensing and certification requirements, quality standards that require product testing and inspection visits, or other foreign government procurement practices – all serve as breeding grounds for bribery.

The formula is not complex.

• Trade barriers and distortions create bureaucracy.
• Bureaucracy creates points of contact with foreign officials.
• Points of contact with foreign officials create discretion.
• Discretion creates the opportunity for a foreign official to misuse their position by making bribe demands.

Several FCPA enforcement actions demonstrate this point (see my article “Revisiting a Foreign Corrupt Practices Act Compliance Defense” pgs. 619-625).  In addition, as highlighted in this prior post, there is a positive correlation between regulatory burdens when doing business in a foreign country and corruption in that foreign country.

In short, removal of trade barriers and distortions can help reduce bribe demands and the focus of the anti-corruption community should be less narrowly focused on pounding the pavement for more enforcement of FCPA-like laws (see prior posts here and here).  Among other things, enforcement of FCPA-like laws only addresses the supply of bribes, not the demand of bribes, or the root causes of many bribes.  More energy and attention should be spent on encouraging nations to eliminate trade barriers and distortions.

Back to Liu’s comments and how various trade barriers and distortions in China can serve as the root cause of bribery and corruption.

For instance, why is the Hollywood film industry under FCPA scrutiny for its practices in China?  It probably has something to do with the fact that “Hollywood studios have spent more than a decade working their way into China past government quotas, censors, and ever-changing regulations.”  (See here).

More comprehensively, consider a recent report by Covington & Burling detailing “market access restrictions and other restraints on foreign investment” in China.  As noted in the firm’s release:

“[Covington] developed an unparalleled database of publicly recorded laws, regulations, and other measures containing provisions that frame or limit foreign investment in China. The Covington team searched hundreds of thousands of measures issued by 80 central government agencies and five representative provincial-level governments, and in the process identified hundreds of provisions restraining foreign investment in China.

Beyond published measures, we reviewed key trade publications and conducted interviews with industry groups to identify and catalogue administrative practices that also may have a restraining effect on foreign investment. As foreign business leaders in China are well aware, many of the biggest obstacles to foreign participation in the Chinese economy are imposed unofficially by government officials exercising legal or extralegal discretion.

[…]

To facilitate our ability to identify restraining measures, we defined the following three categories of restraints:

Category 1: Restraints that favor domestic investors or investments over foreign investors or investments;

Category 2: Restraints that favor state-owned investors or investments over privately-owned (including foreign-owned) investors or investments; and

Category 3: Restraints that possibly favor domestic investors or investments over foreign investors or investments, depending on whether foreign-invested enterprises (FIEs) established in China would be regarded as “Chinese” entities and therefore deemed eligible to receive, on an equal basis, benefits made available to such entities.

[…]

[Covington’s] manual review process identified over 800 restraints, which could be divided into three broad groups:

Pre-establishment restraints that impede market access for foreign investment;

Post-establishment restraints that treat foreign-invested entities less favorably; and

Broad policy statements that potentially result in less favorable treatment for foreign investors and investments during both the pre-establishment and post-establishment stages.

We found that within these three groups, restraining measures in China could be further subdivided into (i) four types of pre-establishment restraints – discriminatory local partner/equity requirements, market entry restrictions, approval process restraints, and technology transfer-related measures –and (ii) three types of post-establishment restraints – differentiated treatment through targeted enforcement, government financial support, and government procurement. In addition, we determined that the large number of broad policy statements we identified also constitute an important group of restraints, even though they do not mandate specific discriminatory treatment in and of themselves, because they often lead central government agencies or local governments to promulgate discriminatory measures or to exercise their administrative discretion in ways that disadvantage foreign investors and investments.

Investment activities by foreign businesses are also subject to restraining administrative practices, which reflect the following three characteristics of China’s administrative system:

Industrial policies explicitly designed to support the development of domestic industries and champions;

Relatively opaque approval processes led by officials explicitly mandated to help China achieve its industrial policy goals; and

The absence of effective recourse if approval authorities have not complied with international commitments or China’s own regulations.”

For a complete copy of the Covington report see here.  (See also this prior post which highlights a similar publication from Covington on “China’s Approval Process for Inbound Foreign Direct Investment”).

In short, Liu is right.

Key to achieving a reduction in bribery and corruption is eliminating trade barriers and distortions.

This problem of course is not China specific.

As noted in this recent op-ed in the Wall Street Journal by India’s Prime Minister Narendra Modi, his new administration is committed to “eliminating unnecessary laws and regulations, making bureaucratic processes easier and shorter, and ensuring that our government is more transparent, responsive and accountable.”  (See also here as relevant to India).

Although trade barriers and distortions are often a root cause of bribery, I am not confident that there will be a broad consensus to eliminate such trade barriers and distortions.  After all, as highlighted in this recent post, trade barriers and distortions are used by all governments as “carrots” and “sticks” to accomplish selfish domestic goals whether political, economic or national security.

That is fine on one level, but so long as this dynamic persists, a reduction in bribery will not be fully achieved because trade barriers and distortions are often the root causes of bribery.

The B20 Is Focused On The Right Topic, But It Is Unlikely That There Will Be Meaningful Action

Earlier this summer, the B20 Anti-Corruption Working Group released this report detailing various policy recommendations to combating corruption.

As highlighted on its website, the Business 20 (B20) is a forum through which the private sector produces policy recommendations for the annual meeting of the Group of 20 (G20) leaders.   The G20 is a forum for international economic cooperation and decision-making, with members from 19 countries plus the European Union.

Unlike certain other groups active in the anti-bribery space who seemingly take the singular position that bribery and corruption would be eliminated if only those evil corporations would stop victimizing and exploiting marginalized actors, the recent B20 report contains a refreshing and holistic view of the issue – not surprising given that it members have real-world experience with the issue.

The overall recommendation from the B20 is stated as follows.  “The business community is united in its view that combating corruption, both supply and demand, requires a coordinated effort across governments to harmonize regulation, incentivize corporate responsibility, and enable consistent enforcement.”

I’ve long maintained that trade barriers and distortions are often the root causes of bribery and a reduction in bribery will not be achieved without a reduction in trade barriers and distortions.

On this score, the B20 report is spot-on as it states:

“Corruption remains a significant barrier to trade, particularly where border and customs facilities are hindered by red tape, pervasive corruption, inadequate infrastructure and low levels of security.  Business calls on G20 leaders to remove supply chain barriers through targeted infrastructure build, streamlined border administration, including reduction of corruption in customs clearance, and domestic regulatory reform.”

As rightly noted in the B20 report, “trade negotiations can provide an opportunity to support” harmonization of anti-corruption approaches.

Although the B20 report is focused on the right things, I am pessimistic that actual, substantive action will be taken by the G20 as to its recommendations.

The reason is simple.

Trade agreements and trade policy are used by all governments as “carrots” and “sticks” to accomplish selfish domestic goals whether political, economic or national security.

That is fine on one level, but so long as this dynamic persists, a reduction in bribery will not be fully achieved because trade barriers and distortions are often the root causes of bribery.

Hercules Offshore: A Case Study In Risk Aversion

In passing the Foreign Corrupt Practices Act, Congress (and the Executive branch) accepted the fact that U.S. companies would lose out on certain business by complying with the FCPA’s provisions.  For instance, as highlighted in “The Story of the Foreign Corrupt Practices Act,” Treasury Secretary Michael Blumenthal stated during Congressional hearings:

“To the very, very small extent a particular company may lose a particular contract because it refuses to engage in [improper payments], I would be willing to say, all right, we will be at a slight competitive disadvantage and we will all sleep the better for it.”

Losing business because of a refusal to make improper payments is one thing, losing business because of risk aversion is quite another.

This post concerns Hercules Offshore and how its FCPA risk aversion resulted in the company abandoning a $92 million contract in Angola, which when disclosed, resulted in the company’s stock falling approximately 11% (see here).

In this recent SEC filing, Hercules disclosed:

“Due to the failure of Sonangol [an entity the DOJ/SEC have alleged in past FCPA enforcement actions is the state-owned and controlled oil and gas company of Angola] officials to accept a local representative that meets the Company’s international legal compliance standards, the Company has experienced delays in obtaining Angolan visas for required crewmembers and delays in importing required parts and equipment into Angola to support operations under the drilling contract for the Hercules 267 (the “Contract”). As a result of these delays, the Contract will be terminated. Pursuant to an agreement with the customer, the Company will not have any contractual exposure to the customer as a result of the Contract termination.Sonangol has failed to accept any of three different local representatives proposed by the Company who meet our legal compliance standards, notwithstanding the legal and technical sufficiency of our proposals. The Company understands that working with a local representative is required under the Contract, and the transition to a representative meeting our compliance standards is a necessary condition for the Company to continue to perform its obligations under the Contract in Angola.

As previously disclosed in our fleet status report on May 20, 2014, the Company recently moved the Hercules 267 to Gabon from Angola. The Hercules 267 has been on zero dayrate since late April 2014, and final cessation of the rig’s operations under the Contract will reduce our current estimated future backlog by an estimated $91.8 million, until we are able to obtain a contract for the rig in another location.

Also as a result of these circumstances, the Company will voluntarily forgo a three-year contract award it previously received in Angola for the Hercules Triumph.”

“And I guess compliance — if you have followed us, you know what — we pulled out of Angola last Friday. Tough decision for us. We could not get comfortable, and then the agents that we sent to Sonangol that had gone through our vetting process they would not accept. So we walked away from 2 1/2 years at $110,000 a day and three years at north of $200,000 a day on two assets, but it’s the right thing to do.We’re not going to get embroiled in an FCPA investigation. So it was a tough decision, but it was the right decision, and a decision we will make every time around the world every day.”