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An M&A Case Study

The Foreign Corrupt Practices Act is a niche practice area for sure.

At the same time, FCPA issues intersect with other business law issues such that the FCPA is a fundamental skill set for all business lawyers and advisers, including in the mergers and acquisitions context.

The FCPA enforcement and related actions in connection with the 2010 acquisition of Watts Valve Changsha Co. Ltd. by China Valves Technology, Inc. (“China Valves”) has turned into a full-fledged case study on this issue as a result of the September 29th SEC action against China Valves and various of it executives – an action that has generally flown under the radar screen in the FCPA space.

First, some background.

As highlighted in this post, in October 2011 the SEC issued (here) an administrative cease and desist order against Watts Water Technologies, Inc. (“Watts”) and Lessen Chang concerning violations of the FCPA’s books and records and internal control provisions.  The conduct at issue focused on Watts Valve Changsha Co. Ltd. (“CMV”), a wholly-owned Chinese subsidiary operated by Watts and sold in 2010.

Specifically and according to the SEC, “employees of CWV made improper payments to employees of certain [Chinese] design institutes … to influence the design institutes to recommend CWV valve products to [SOEs] and to create design specifications that favored CWV valve products.”   The SEC found that “CWV’s improper payments generated profits for Watts of more than $2.7 million.”

Based on the above conduct, Watts agreed to pay approximately $3.8 million ($2.8 million in disgorgement, $820,000 in prejudgment interest and a $200,000 civil monetary penalty).  Chang (a U.S. citizen and former interim general manager of CWV)  agreed to pay a $25,000 civil monetary penalty.

As indicated above, the FCPA enforcement action against Watts in 2011 was based on the conduct of CMV – an entity Watts had sold prior to the FCPA enforcement action.

The purchaser of CMV was China Valves.  More on that below including the recent enforcement action against China Valves and various executives.

Prior to this recent enforcement action however, and as highlighted in this prior post, Watts filed a civil lawsuit against its U.S.-based law firm for legal malpractice claiming that the law firm’s legal services in connection with Watt’s acquisition of CMV was inadequate based on insufficient due diligence.  As highlighted in this prior post, the U.S. law firm strenuously denied the allegations, yet the action was reportedly settled and little details disclosed.

The take-away point thus far in the story is that one acquired entity caused FCPA scrutiny for the acquiring company and civil scrutiny for the law firm advising the acquirer.  

Fast forward to the recent SEC action against China Valves and certain of its executives (see here for the SEC release and here for the complaint).  According to the SEC complaint, China Valves is a Nevada corporation with operations solely in China which became a U.S. issue in December 2007 through a reverse merger.

China Valves purchased CMV from Watts in January 2010 and according to the SEC did so with “full knowledge” of the FCPA issues facing CMV.  According to the SEC, when China Valves purchased CMV, China Valves paid “$2.2 million [in] outstanding sales commissions to CMV’s sales force – the very same commissions Watts declined to pay because of suspected FCPA violations.”

The above two allegations, along with several others that do not relate to the SEC, serve as the basis for the SEC’s claim that China Valves and various of its executives engaged in fraud.  For instance, the SEC alleged that the Form 8-K China Valves filed with the SEC announcing the acquisition “omitted any mention of the FCPA investigation of CMV, or that the payment of unrecorded liabilities included payment of $2.2 million in sales commissions that were not recorded on CMV’s books and that Watts had determined were not FCPA compliant.”

The SEC’s complaint also contains other similar allegations regarding China Valve’s other SEC filings over a two year period. Specifically , the SEC alleged that these filings contained material false statements and omissions “because a reasonable shareholder would want to know the true nature of the acquisition … about the FCPA Investigation at CMV, and that [China Valves] paid amounts that potentially violated the FCPA.”

In short, the alleged improper conduct at CMV created scrutiny not only for the first acquiring company (Watts) and Watt’s counsel in the form of a malpractice action, but also the second acquiring company (China Valves) and its executives.

This full-fledged M&A case study should put the FCPA on the radar screen for all business lawyers and advisors, including in the merger and acquisitions context.

Sidley Responds To Malpractice Claims – “It Is Frankly Amazing That Watts Comes To This Court Seeking A Recovery From Sidley”

This previous post discussed Watts Water Technologies complaint filed in Superior Court for the District of Columbia against Sidley Austin LLP in connection with merger due diligence in China that Watts claims was deficient and gave rise to its FCPA scrutiny.

Recently Sidley filed this answer and this motion for summary judgment.

The answer contains a preliminary statement which states as follows.

“In this case, an admitted corporate wrongdoer that was required to disgorge illegal profits and pay penalties to the federal government for violating a federal anti-bribery law seeks to recoup the fruits of its wrongdoing and penalties from its former counsel, based on erroneous allegations that counsel were negligent. Watts cannot shift the consequences of its Foreign Corrupt Practices Act (FCPA) violations to Sidley for multiple reasons, including the following: Sidley  was engaged to perform certain, specified due diligence tasks—not to include FCPA review—in connection with Watts’ purchase of specified assets from Changsha Valve Works; Sidley’s legal work on the agreed-upon due diligence was of the highest quality and exceeded professional standards; Watts mistranslates and mischaracterizes Chinese-language documents to support its erroneous claim; Watts ignores that its Assistant General Counsel was provided written notice of the so-called “kickback policy” in advance of Watts’ decision to proceed with buying Changsha Valve Works’ assets; and Watts, as a matter of law, is solely responsible for Watts’ own illegal conduct in China in the years following Sidley’s limited engagement. Under these circumstances, no basis exists for Watts to come to this Court seeking a recovery from Sidley.”

The summary judgment motion states, among other things, as follows.

“Watts’ negligence theory against Sidley stems from the fact that Watts had hired Sidley back in 2004 to conduct specified due diligence tasks—none of which included FCPA compliance—at the old Changsha Valve, the company that sold its assets to Watts in 2006.  Watts alleges that Sidley negligently failed to detect and report that Changsha Valve had bribed  government officials. According to Watts, if Sidley had only reported Changsha Valve’s bribery to Watts in 2004 or 2005, then Watts would not have engaged in bribery at Watts’ own subsidiary from 2006 to 2009, and would have maintained adequate books and records. The argument is preposterous. For one, Deloitte & Touche Corporate Finance Ltd., which conducted financial due diligence for Watts at Changsha Valve, specifically identified and reported Changsha Valve’s so-called “kickback policy” to Watts in writing on November 19, 2004. Watts’ then-Assistant General Counsel wrote in a memorandum, long before the Changsha Valve deal was concluded, ‘I have reviewed the . . . draft Financial Due Diligence report . . . by Deloitte.’  Yet Watts went ahead with the conduct described in the Complaint despite Deloitte’s written report. Under these circumstances, it is frankly amazing that Watts comes to this Court seeking a recovery from Sidley.”

Watts Water Technologies Files Malpractice Claim Against Sidley Austin In Connection With Merger Due Diligence

When contemplating an international acquisition, particularly one in China, the prudent thing for an acquiring company to do is conduct due diligence, including specifically as to any Foreign Corrupt Practices Act issues.  As to FCPA due diligence, the prudent thing to do is to hire skilled and experienced FCPA counsel.  Given the fees counsel charges for such services, it is reasonable for the company to expect that counsel will conduct complete and thorough due diligence and bring any and all adverse information to the company’s attention so that it can assess the risk of completing the transaction.

That in a nutshell is the substance of Watts Water Technologies recent complaint (here) filed in Superior Court for the District of Columbia against Sidley Austin LLP.  See here for the original reporting by Reuters.

In summary fashion, the complaint alleges as follows.

“When Watts was considering the acquisition of a Chinese company, Watts hired Sidley as its attorneys to perform legal due diligence with respect to the potential acquisition so that Watts could evaluate the legal risks associated with the acquisition and decide whether to proceed.  Sidley’s legal representation required its attorneys to thoroughly investigate the target company and identify all potential legal risks and liabilities that Watts might be exposed to or acquire if it purchased the target company.  Sidley was aware that these potential liabilities and legal risks could include possible violations of the FCPA.  In the course of its legal due diligence, Sidley uncovered a document demonstrating that the target company had a written ‘kickback’ policy, by which the company paid Chinese government officials or officials of state-owned entities (such as Chinese ‘design institutes’) in order to secure government contracts for the company.  This policy violates the FCPA, and the Sidely partner responsible for the due diligence has subsequently admitted that this document was a ‘red flag.’  Undoubtedly, Sidley should have disclosed the kickback policy and the document to Watts.  Nonetheless, despite obviously discovering this written policy in its legal due diligence, Sidley never disclosed its existence to Watts in any of Sidley’s legal due diligence reports or in any other communication.  As a result of Sidley’s failure, Watts was unaware of the kickback policy.  Watts paid millions of dollars to purchase the target company, and Watts operated it for several years.  The undisclosed FCPA violations ultimately required an expensive internal investigation and audit by outside attorneys.  After Watts self-reported the violations to the SEC and DOJ, both agencies initiated investigations.  Watts paid millions of dollars in disgorged profits, fines and other penalties to the SEC, millions of dollars in attorneys’ fees and related costs, and Watts was also forced to sell the company for a substantial loss.  Sidley is liable to Watts for these injuries and damages.”

Based on the above allegations, Watts alleges professional negligence, breach of contract, and negligent misrepresentation.

Certain of the allegations in the complaint would seem to be corroborated by an October 2011 SEC FCPA enforcement action against Watts – see here for the prior post.  In that action, Watts agreed to an administrative cease and desist order requiring it to  pay approximately $3.8 million ($2.8 million in disgorgement, $820,000 in prejudgment interest and a $200,000 civil monetary penalty).

The allegations in the Watts complaint against Sidley also cast the SEC action in a different light.  Surely, FCPA counsel for Watts shared the substance of the allegations in its complaint with the SEC and DOJ and query whether this is what caused the DOJ to decline prosecution and for the SEC to resolve the matter via an administrative cease and desist order finding violations only of the FCPA’s books and records and internal control provisions.

Another Enforcement Action Involving Chinese Design Institutes

Yesterday, the SEC issued (here) an administrative cease and desist order as to Watts Water Technologies, Inc. (“Watts”) and Lessen Chang concerning violations of the FCPA’s books and records and internal control provisions.  Watts designs, manufactures, and sells water valves and related products and Chang, a U.S. citizen, was the former interim general manager of Watts Valve Changsha Co. Ltd. (“CWV”), a wholly-owned Chinese subsidiary operated by Watts and sold in 2010. According to the SEC, Watts consolidated CMV’s books and records into its financial statements and CWV’s revenues accounted for approximately 1% of Watts’ gross revenues.

According to the SEC, “CWV produced and supplied large valve products for infrastructure projects in China” – projects “mostly developed, constructed, and owned by state-owned entities” that routinely retained “state-0wned design institutes to assist in the design and construction” of projects.   According to the SEC, “employees of CWV made improper payments to employees of certain design institutes … to influence the design institutes to recommend CWV valve products to [SOEs] and to create design specifications that favored CWV valve products.”  According to the SEC, “the payments were disguised as sales commissions in CWV’s books and records, thereby causing Watts’ books and records to be inaccurate,” and that “Watts failed to devise and maintain a system of internal accounting controls sufficient to prevent and detect the payments.”  According to the SEC, Chang “approved many of the payments to the design institutes and knew or should have known that the payments were improperly recorded on Watts’ books as commissions.”  The SEC found that “CWV’s improper payments generated profits for Watts of more than $2.7 million.”

The Watts enforcement action is yet another example of an FCPA enforcement action focused on Chinese Design Institutes.  Previous enforcement actions include Rockwell Automation (here), ITT (here), and Avery Dennison (here).

In the order, the SEC found that “Watts failed to implement adequate internal controls to address the potential FCPA problems posed by its ownership of CWV – a subsidiary that sold its products almost exclusively to SOEs.”  The SEC noted that “although Watts implemented an FCPA policy in October 2006, Watts failed to conduct adequate FCPA training for its employees in China until July 2009.”  As to Chang’s role, the SEC stated that “Chang approved commission payments to CWV sales personnel that he knew included payments to design institutes.”  According to the SEC, “Chang also knew that Watts’ management in the U.S. was unaware of the CWV [sales policy that generated the commission payments] that facilitated the improper payments and he resisted at least one attempt by several of his colleagues at Watts China to have the policy translated and submitted to Watts’ senior management for approval.”  The SEC stated that “Chang’s resistance to efforts to have the Sales Policy translated and submitted to Watts’ management in the U.S. was a cause of Watts’ internal control violations, since it prevented the parent company from discovering the improper payments.”

Based on the above conduct, Watts agreed to pay approximately $3.8 million (2.8 million in disgorgement, $820,000 in prejudgment interest and a $200,000 civil monetary penalty).  Chang agreed to pay a $25,000 civil monetary penalty.

How did Watts’ general counsel learn that Chinese Design Institutes could present FCPA risk?  According to the SEC, by reading its prior enforcement action against ITT.  The SEC states as follows.  “In March 2009, Watts’ General Counsel learned of a Commission enforcement action against another company that involved unlawful payments to employees of Chinese design institutes. Because Watts’ senior management in the U.S. knew that CWV’s customers included [SOEs], Watts implemented anti-corruption and FCPA training for its Chinese subsidiaries. This training took place starting in the Spring of 2009. In July 2009, following FCPA training sessions for certain management of Watts China, Watts China’s in-house corporate counsel became aware of potential FCPA violations at CWV through conversations with CWV sales personnel who were participating in the training. Shortly thereafter, the in-house lawyer notified Watts’ management in the U.S. of the potential violations.  On July 21, 2009, Watts retained outside counsel to conduct an internal investigation of CWV’s sales practices. Watts’ outside counsel subsequently retained forensic accountants to assist with the investigation.  On August 6, 2009, Watts self-reported its internal investigation to the staff. As the internal investigation progressed, Watts shared the results of the investigation with its outside auditors and the staff through periodic reports, and undertook” remedial measures.

Under the heading “Watts’ Remedial Measures” the SEC stated as follows.  “Since July 2009 when the conduct was discovered, Watts has taken the following remedial steps. At the start of its internal investigation, Watts directed all of its sales and finance employees at CWV and Watts China to stop all payments of any kind to SOEs. While the internal investigation was ongoing, Watts eliminated commission-based compensation at CWV to ensure that no further improper payments were made by CWV sales personnel and disclosed the internal investigation in its August 7, 2009 Form 10-Q. In addition, Watts retained additional outside counsel to draft and implement enhanced anti-corruption policies and procedures, including an enhanced Anti-Bribery Policy, a Business Courtesy Policy designed to ensure that any payments made to customers comply with the FCPA, an enhanced Travel and Entertainment Expense Reimbursement Policy for its Chinese subsidiaries, and enhanced intermediary due diligence procedures.  In conjunction with its internal investigation, Watts conducted a worldwide anti-corruption audit. As part of its anti-corruption audit, Watts conducted additional FCPA and anti-corruption training for Watts China and the company’s locations in Europe, conducted a risk assessment and anti-corruption compliance review of Watts’ international operations in Europe, China, and any U.S. location with international sales, and conducted anti-corruption testing at seven international Watts sites, including each of the manufacturing and sales locations in China. In an effort to ensure FCPA compliance and training going forward, Watts contracted with an online global training organization to provide regular anti-corruption training and hired a Director of Legal Compliance, a new position that reports to Watts’ General Counsel regarding issues under the Code of Conduct and Anti-Bribery Policy.”

Question of the day – should payments made without U.S. management knowledge at a Chinese subsidiary constituting less than 1% of overall revenue  result in a company conducting a worldwide review of its operations?

Recent Disclosures Raise Many Questions

Deere & Co., Goldman, Pfizer, News Corp, Parametric Technology, Bruker, Diebold, Watts Water Technologies, 3M Corp. The flurry of public company disclosures of FCPA inquiries (some new, some merely updates) in recent days raise many questions.

Has the increase in FCPA enforcement done anything to deter future FCPA violations?

Why in this era of increased FCPA compliance does there seem to be more, not less, FCPA inquiries?  Does effective compliance reduce FCPA scrutiny or does effective compliance uncover more FCPA issues?  If the latter, does that argue in favor of a compliance defense?

If every company hired FCPA counsel to do a thorough review of its world-wide operations would – given the enforcement agencies theories of interpretation – 50% of companies find technical FCPA violations?  75%?  95%?  If the answer is any one of these numbers is that evidence of how corrupt business has become or is that evidence of how unhinged FCPA enforcement theories have become?

Other than plaintiffs’ firms representing certain investors in (some would say opportunistic) securities class actions or derivative claims, do investors even care about these disclosures?

What do these recent disclosures – involving companies in diverse industries operating in diverse countries – say about the FCPA itself?  Is it working?  Does it need reform?

Ponder these questions while browsing the latest disclosures.


From the company’s August 9th 10-Q:

“[The company] and certain of its affiliates are subject to a number of investigations and reviews, certain of which are industry-wide, by various governmental and regulatory bodies and self-regulatory organizations relating to the sales, trading and clearance of corporate and government securities and other financial products, including compliance with the SEC’s short sale rule, algorithmic and quantitative trading, futures trading, securities lending practices, trading and clearance of credit derivative instruments, commodities trading, private placement practices, compliance with the U.S. Foreign Corrupt Practices Act and the effectiveness of insider trading controls and internal information barriers.”

As noted in this prior post, Goldman’s FCPA scrutiny relates to its relationship with Libya’s sovereign wealth fund.


The company stated as follows in its August 11th 1o-Q:

“The Company has voluntarily provided the DOJ and the U.S. Securities and Exchange Commission (SEC) with information concerning potentially improper payments made by Pfizer and by Wyeth in connection with certain sales activities outside the U.S. We are in discussions with the DOJ and SEC regarding a resolution of these matters. In addition, certain potentially improper payments and other matters are the subject of investigations by government authorities in certain foreign countries, including a civil and criminal investigation in Germany with respect to certain tax matters relating to a wholly owned subsidiary of Pfizer.”

News Corp.

News Corp.’s  FCPA exposure has been detailed in several prior posts (see here for instance) and in the company’s August 10th  8-K it stated as follows.

“In July 2011, the Company announced that it would close its publication, News of the World, after allegations of phone hacking and payments to police. As a result of these allegations, the Company is subject to several ongoing investigations by U.K. and U.S. regulators and governmental authorities, including investigations into whether similar conduct may have occurred at the Company’s subsidiaries outside of the U.K. The Company is fully cooperating with these investigations. In addition, the Company has admitted liability in a number of civil cases related to the phone hacking allegations and has settled a number of cases. The Company has taken steps to solve the problems relating to News of the World including the creation and establishment of an independent Management & Standards Committee, which will have oversight of, and take responsibility for, all matters in relation to the News of the World phone hacking case, police payments and all other connected issues at News International Group Limited (“News International”), including as they may relate to other News International publications.”

Parametric Technology Corp.

In a new disclosure, the company stated as follows in its August 10th 10-Q:

“In the third quarter of 2011, we identified certain payments by certain business partners in China that raised questions of compliance with laws, including the Foreign Corrupt Practices Act, and/or compliance with our business policies. We are conducting an internal investigation and have voluntarily disclosed this matter to the United States Department of Justice and the Securities and Exchange Commission. We are unable to estimate the potential penalties and/or sanctions, if any, that might be assessed in connection with this matter. If we determine that the replacement of certain employees and/or business partners is necessary, it could have an impact on our level of sales in China until such replacements are in place and productive. Revenue from China has historically represented 6% to 7% of our total revenue.”

Bruker Corp.

In a new disclosure, the company stated as follows in its August 9th 10-Q:

“The Company has received certain anonymous communications alleging improper conduct in connection with the China operations of its Bruker Optics subsidiary. In response, the Audit Committee of the Company’s Board of Directors initiated an investigation of those allegations, with the assistance of independent outside counsel and an independent forensic consulting firm. The investigation is ongoing and includes a review of compliance by Bruker Optics and its employees in China with the requirements of the Foreign Corrupt Practices Act (“FCPA”) and other applicable laws and regulations. To date, the investigation has found evidence indicating that payments were made that improperly benefit employees or agents of government-owned enterprises in China. The Company voluntarily contacted the United States Securities and Exchange Commission and the United States Department of Justice to advise both agencies that an internal investigation is underway. It is the intent of the Audit Committee and the Company to cooperate with both agencies in connection with any investigation that may be conducted in this matter. In 2010, the China operations of Bruker Optics accounted for less than 2.5 percent of the Company’s consolidated net sales and less than 1.0 percent of its consolidated total assets. The internal investigation being conducted by the Audit Committee is ongoing and no conclusions can be drawn at this time as to its outcome; however, the FCPA and related statutes and regulations do provide for potential monetary penalties as well as criminal and civil sanctions in connection with FCPA violations. It is possible that monetary penalties and other sanctions could be assessed by the Federal government in connection with this matter. The nature and amount of any monetary penalty or other sanctions cannot reasonably be estimated. We have not recorded any provision for monetary penalties related to criminal and civil sanctions at this time.”

Diebold Inc.

In its August 8th 10-Q the company stated as follows.

“The Company’s global Foreign Corrupt Practices Act (FCPA) review remains on schedule with no material developments during the three months ended June 30, 2011:  During the second quarter of 2010, while conducting due diligence in connection with a potential acquisition in Russia, the Company identified certain transactions and payments by its subsidiary in Russia (primarily during 2005 to 2008) that potentially implicate the FCPA, particularly the books and records provisions of the FCPA. As a result, the Company is conducting an internal review and collecting information related to its global FCPA compliance. In the fourth quarter of 2010, the Company identified certain transactions within its Asia Pacific operation over the past several years which may also potentially implicate the FCPA. The Company’s current assessment indicates that the transactions and payments in question to date do not materially impact or alter the Company’s consolidated financial statements in any year or in the aggregate. The Company’s internal review is ongoing, and accordingly, there can be no assurance that this review will not find evidence of additional transactions that potentially implicate the FCPA. The Company has voluntarily self-reported its findings to the SEC and the DOJ and is cooperating with these agencies in their review. The Company was previously informed that the SEC’s inquiry has been converted to a formal, non-public investigation. The Company also received a subpoena for documents from the SEC and a voluntary request for documents from the DOJ in connection with the investigation. The Company expects to complete its internal review of these matters by the end of 2011. Once the Company completes its internal review, it will begin discussions with the SEC and the DOJ to resolve this matter. At this time, the Company cannot predict the results of the government investigations and therefore cannot estimate the potential loss or range of loss it may incur with respect to these investigations or their potential impact on the consolidated financial statements. Future resolution of these matters with the DOJ and SEC could result in a material impact to the Company’s consolidated financial statements.”

Watts Water Technologies Inc.

In an August 3rd 8-K filing, the company provided this update:

“In the second quarter of 2011, the Company recorded income of $0.05 per share in discontinued operations related to a reserve adjustment for the previously disclosed FCPA investigation. The adjustment reflects management’s best estimate of a possible charge in connection with this matter based on ongoing discussions with SEC staff. There is no definitive agreement for resolution of this matter at this time.”

3M Company

In an August 4th 10-Q filing, the company provided this update:

“On November 12, 2009, the Company contacted the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) to voluntarily disclose that the Company was conducting an internal investigation as a result of reports it received about its subsidiary in Turkey, alleging bid rigging and bribery and other inappropriate conduct in connection with the supply of certain reflective and other materials and related services to Turkish government entities. The Company also contacted certain affected government agencies in Turkey. The Company retained outside counsel to conduct an assessment of its policies, practices, and controls and to evaluate its overall compliance with the Foreign Corrupt Practices Act, including an ongoing review of our practices in certain other countries and acquired entities. The Company continues to cooperate with the DOJ and SEC and government agencies in Turkey in the Company’s ongoing investigation of this matter. The Company cannot predict at this time the outcome of its investigation or what regulatory actions may be taken or what other consequences may result.”

Deere & Co.

In addition to the above disclosures, the Wall Street Journal Corruption Currents, among others, reported this week that Deere & Co.  “received an inquiry from regulators last month regarding payments made in Russia and nearby countries.”  In a statement, Deere stated as follows.  “On July 25, 2011, Deere received a request from the SEC that it voluntarily produce documents relating to Deere’s activities, and those of third parties, in certain foreign countries. Deere is cooperating with the SEC’s requests.”

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