As highlighted in this previous post, in 2013 Germany-based Bilfinger resolved a Foreign Corrupt Practices Act enforcement action concerning conduct in Nigeria by agreeing to pay approximately $32 million. The enforcement action was resolved via a three-year deferred prosecution agreement and the company was required to engage a monitor for an 18 month period.
In September 2016, the DPA was extended because, in the words of the DOJ, of “the monitor’s inability to certify compliance with the compliance obligations in the 2013 Agreement after 18 months of monitorship.” In pertinent part the extended DPA stated:
“The [DOJ] enters into this Agreement based on the individual facts and circumstances presented by this case and the Company. Among the factors considered were the following: (a) the monitor’s inability to certify compliance with the compliance obligations in the 2013 Agreement after 18 months of monitorship; specifically, the monitor was not able to conclude that the Company’s compliance program is reasonably designed and implemented to detect and prevent violations of the anti-corruption laws and is functioning effectively, which conclusion the [DOJ] adopts and supports; (b) the Company’s recognition and acknowledgment of its inability to satisfy the compliance obligations in the 2013 Agreement within the term of the 2013 Agreement, including its inability to implement (1) a system of internal controls designed to ensure the making and keeping of fair and accurate books, records and accounts, and (2) a rigorous anti-corruption compliance code, standards, and procedures designed to detect and deter violations of the FCPA and other applicable anti-corruption laws; (c) the Company’s recent efforts to redesign and enhance its compliance program and internal accounting controls to ensure that its compliance program satisfies the minimum elements set forth in Attachment C to this Agreement; (d) the Company’s recent dedication of substantially increased resources to its compliance, internal controls, and internal audit functions and its commitment to continue dedicating enhanced resources to these functions; (e) the Company’s cooperation with the Department during the term of the 2013 Agreement, including investigating potential misconduct it or the Monitor discovered during the term of the 2013 Agreement and disclosing all of the relevant facts regarding the misconduct to the Department, including all relevant information regarding the individuals involved in the misconduct; (f) the Company’s efforts to remediate the misconduct discovered during the term of the 2013 Agreement, including terminating the employment of certain employees responsible for the misconduct and disciplining others, and enhancing its compliance program and internal accounting controls; and (g) the Company’s agreement to continue to cooperate with the Department in any ongoing investigation of the conduct of the Company and its officers, directors, employees, agents, and consultants relating to violations of the FCPA.”
What exactly did the Monitor find resulting in his/her inability to certify compliance? What misconduct was discovered during the term of the original DPA?
Good luck finding the answers to these questions relevant to pending action placed on a federal judge’s docket as there is little to no transparency regarding the work of monitors. As highlighted in prior posts here and here the DOJ has resisted previous efforts to shine a light on monitor work in the aftermath of an FCPA enforcement action.
In fact, the last docket filing in the Bilfinger matter was the above referenced September 2016 filing extending the DPA.
In any event, and lack of transparency aside, Bilfinger has apparently emerged from the five year DPA as earlier this week the company announced:
“[Our] Deferred Prosecution Agreement (“DPA”), entered into in December 2013 with the US Department of Justice and extended in September 2016, has concluded as planned on December 9, 2018. Bilfinger fulfilled its commitments under the DPA, and consequently it is expected that the Department of Justice will file a motion with the US District Court for the Southern District of Texas seeking the dismissal of the charges deferred by the agreement.
Bilfinger is pleased that the Department of Justice has recognized Bilfinger’s progress in strengthening its compliance, especially its anti-bribery and corruption capabilities over the past five years. Under the DPA, an independent compliance monitor was appointed in 2014 to produce regular assessments of, and recommendations for, Bilfinger’s compliance program. The monitor has now certified that Bilfinger’s compliance program fulfills the requirements under the DPA. With the conclusion of the DPA, the monitorship also comes to an end.”
In the release, CEO Tom Blades stated:
“We are delighted that the Department of Justice has recognized our intensive efforts and measures put in place since late 2015. Bilfinger is a very different company today than it was when it entered into the DPA. Thanks to the unrelenting efforts of our employees, substantial investments in our compliance function and internal control systems, we are now able to manage our compliance responsibilities from a position of strength.”
Michael Bernhardt, CHRO and member of the Executive Board stated: “we have established a fundamental corporate culture making compliance an integral part of Bilfinger’s DNA” and Olaf Schneider, General Counsel & Chief Compliance Officer, stated: “we are committed to continuously enhancing our compliance system. Improving the effectiveness of our system further remains a top priority for Bilfinger.”
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