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Former Executive Director Of Goldman Sachs International Resolves SEC FCPA Enforcement Action


In April 2020, the SEC announced the filing of a civil complaint charging Asante Berko (pictured – a former Executive Director of Goldman Sachs International).

The SEC charged Berko with Foreign Corrupt Practices Act violations and other charges for “orchestrating a bribery scheme to help a client [a Turkish energy company] win a government contract to build and operate an electrical power plant” in Ghana. (See here for the prior post).

In summary fashion, the complaint alleged:

“Berko, a United States citizen, is a former executive of a United Kingdom-based financial services company (the “Subsidiary”) that is a wholly-owned subsidiary of a publicly traded bank holding company based in the United States (the “Holding Company”).

Berko’s role at the Subsidiary was to develop investment banking business for the Subsidiary and the Holding Company, which included identifying and arranging financing, restructuring or merger transactions for clients, and assisting with the work necessary to complete those transactions.

From approximately 2015 through at least 2016 (the “relevant period”), while employed at the Subsidiary, Berko schemed to bribe various government officials in the Republic of Ghana (“Ghana”) so that a client of the Subsidiary, a Turkish Energy Company (the “Energy Company”), would win a contract (the “Power Purchase Agreement”) to build and operate an electrical power plant in Ghana and sell the power to the Ghanaian government (the “Power Plant Project” or “Project”). To effect the corrupt scheme, Berko arranged for the Energy Company to funnel between $3 million to $4.5 million to a Ghana-based company (the “Intermediary Company”) to bribe various government officials responsible for approving the Power Plant Project. The Energy Company transferred at least $2.5 million of the planned $3 million to $4.5 million to the Intermediary Company, all or most of which was used to bribe Ghanaian government officials.

Berko crafted, developed and carried out the bribery scheme with the knowledge, or under circumstances that made it substantially certain, that all or a portion of the money paid to the Intermediary Company would be paid as bribes to Ghanaian government officials to secure support for the Power Plant Project. Berko and the Energy Company timed the largest transfers of funds to coincide with key milestones in the approval process of the Power Plant Project so that funds would be available to bribe the corrupt officials who were in positions to help accomplish those milestones. For example:

a. On or about April 13, 2015, Berko learned that the Energy Company and the Ministry of Power of Ghana (“Ministry of Power”) had reached an agreement in principle on the terms of the Power Purchase Agreement. By April 20, 2015, at the request of the Intermediary Company, Berko and the Energy Company had arranged for the Energy Company to transfer $500,000 to the Intermediary Company, which the Intermediary Company then used to bribe a senior Ghanaian government official (“Government Official 1”) who represented the Ministry of Power during its negotiations with the Energy Company.

b. On May 11, 2015, the Energy Company and the Ministry of Power signed the Power Purchase Agreement. On May 19, 2015, the Intermediary Company sent an invoice to the Energy Company for an additional $1.5 million in funds for the bribe scheme. On May 22, 2015, the Energy Company transferred $1.5 million to the Intermediary Company, all or part of which was to be used to bribe Ghanaian government officials. Berko knew of this transfer at, or soon after, the time of this transfer.

c. On July 17, 2015, the Ghanaian parliament ratified the Power Purchase Agreement. On July 20, 2015, the Intermediary Company requested, through Berko, that the Energy Company send it another $1.5 million for its “next crucial steps.” Those funds were to be used to bribe Ghanaian government officials and to advance the bribery scheme.

d. On August 4, 2015, the Intermediary Company emailed another invoice to the Energy Company, copying Berko, for $250,000 for the bribery scheme. On October 19, 2015, the Energy Company transferred $250,000 to the bank account of an employee of the Intermediary Company (“Intermediary Employee 1”) who was also part of the bribery scheme.

Berko also helped the Intermediary Company pay smaller bribes, totaling approximately $210,000, to various other government officials involved in the Power Plant Project. These included bribes to a Ghanaian government official (“Government Official 2”) who assisted Government Official 1 on the Project, employees at the Ministry of Power who provided confidential information to the Intermediary Company concerning the Project, government engineers who assessed the Energy Company’s technology, and officials at other government agencies who reviewed the Project.

In addition to the bribes paid through the Intermediary Company, Berko personally paid bribes to advance the corrupt scheme. By August 2015, Berko had paid bribes of at least $66,000 to members of the Ghanaian parliament and other government officials in his effort to obtain approval for the Power Plant Project.

Berko sought to profit from the bribery scheme in two ways. First, he knew the Subsidiary would earn over $10 million in fees if the Energy Company secured the Power Plant Project and the Subsidiary organized financing for it, which in turn would enhance Berko’s performance and stature within the Subsidiary. Second, by at least July 2015, Berko understood that the Energy Company would secretly compensate him for arranging the bribe scheme. Unbeknownst to the Subsidiary – and in violation of Berko’s employment agreement with the Subsidiary – between September 2016 and February 2017, the Energy Company paid Berko $2 million for successfully coordinating the bribery scheme.

Berko took deliberate measures to prevent the Holding Company’s and the Subsidiary’s compliance personnel from discovering his corrupt scheme. First, Berko used his personal email rather than his work email to arrange the bribery scheme in order to evade detection. Berko knew that Subsidiary and/or Holding Company compliance personnel could review his work email as part of their periodic and/or project-related due diligence. Second, Berko intentionally failed to correct a critical document – directed to the Holding Company – that falsely stated that the Energy Company had not compensated any intermediaries or politically exposed persons in connection with the Power Plant Project.

Despite Berko’s efforts to conceal his misconduct, the Holding Company required additional due diligence to further assess the potential reputational risks associated with the Project and to address other concerns. As part of this diligence, during March 2016, compliance personnel at the Subsidiary reviewed Berko’s emails and discovered the involvement of the Intermediary Company. After interviewing Berko about the Intermediary Company, they began to investigate the matter further.

During approximately May through June 2016, and as part of their further investigation, Subsidiary personnel questioned the Energy Company’s executives about the Intermediary Company’s role in the Power Plant Project. The Energy Company’s executives provided incomplete and inaccurate information to the Subsidiary personnel’s questions and failed to disclose that the Intermediary Company’s true purpose was to facilitate the bribery scheme. When Subsidiary personnel continued to probe the role of the Intermediary Company in the transaction, the Energy Company’s executives refused to answer any more questions on the topic. As a result of information obtained during this further investigation, by August 2016, the Subsidiary terminated its involvement in the Project.

Between September 2016 and February 2017, the Energy Company paid Berko $2 million for his effort in facilitating the bribery scheme. On or about December 7, 2016, Berko tendered his resignation to the Subsidiary, which became final on or about March 6, 2017. Following his departure from the Subsidiary, Berko began providing consulting services for the Energy Company.”

Based on the above, the SEC charged Berko with violating the FCPA’s anti-bribery provisions and aiding and abetting FCPA anti-bribery violations.

This guest post discussed the apparent pleading deficiencies in the SEC’s complaint.

As highlighted in this prior post, Berko publicly denied the SEC’s allegations and the SEC sought court approval to serve the summons on complaint via e-mail and through his U.S. counsel. Moreover, the September 2020 filing states that “in May [2020], counsel commenced representing Berko for the purpose of settlement and since May [2020], the Commission’s counsel and Berko’s counsel have had several conversations about the terms of a potential settlement.”

Earlier this week, without admitting or denying the SEC’s allegations, Berko agreed to resolve the matter by paying $329,163.92 (disgorgement of $275,000 along with prejudgment interest of $54,163.92). The final judgment also permanently restrains and enjoins Berko from violating, directly or indirectly, the FCPA’s anti-bribery provisions.

See here for more.

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