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Friday Roundup


Not something you see everyday, Yates Memo related, quotable, scrutiny alerts and updates, and for the reading stack. It’s all here in the Friday roundup.

Not Something You See Everyday

It’s not everyday that you see a director of a publicly-traded company publicly resign because the director thinks the company is engaged in improper conduct including FCPA violations.

But that is just what Michael Moss, until recently a director of Malvern Bancorp, did.

In this recent “Dear Board of Directors” letter, Moss stated:

“Malvern Federal is a community bank. As our mission statement says: “We will support the efforts of local businesses, organizations and people within the communities we serve.” Servicing the banking needs of a [*], carrying a [*] passport – a stranger to us – doing business in [*] and [*] is not consistent with that mission. Malvern Federal is not Bank of America and should not aspire to be.

But worse than that, doing business with Mr. [*] carries grave legal and reputational risks for Malvern Federal. He bears all the hallmarks of exactly the sort of individual the Bank Secrecy Act’s know-your-customer rules were designed to detect: a [*] national expelled from his own banking system who has been doing business in offshore havens known for money laundering. Worse yet, through an introduction of a Malvern Federal Savings Bank activist investor shareholder, he inexplicably comes to a small community bank instead of an international commercial bank to service his banking needs. Doing business with this man puts Malvern Federal at risk for violations of anti-money laundering requirements of the PATRIOT Act, the Bank Secrecy Act, Treasury Department OFAC sanctions, and the Foreign Corrupt Practices Act, among others.

Please be advised, that effective immediately, I, Michael D. Moss, resign as a member of the Board of Directors of both Malvern Bancorp, Inc. and Malvern Federal Savings Bank.”

Yates Memo Related

In this video at the recent ABA White Collar Crime Conference Sally Yates discusses the “Yates Memo.”


Further proof that you should not necessarily believe everything you read in mainstream media (including the Wall Street Journal). This February Wall Street Journal piece stated:

“The U.S. Justice Department’s fraud section will now require certification from companies that they fully disclosed all information about individuals involved in wrongdoing before finalizing a settlement agreement.”

Not true according to this writeup by lawyers attending the recent ABA White Collar Crime conference.

“On March 3, 2016, DOJ Criminal Division’s Assistant Attorney General Leslie Caldwell addressed recent media reports claiming that companies under investigation by DOJ will soon need to certify their full disclosure of certain documents as a prerequisite to obtaining a settlement agreement with the Department.  Caldwell addressed—and dismissed—the rumored certification requirement while speaking on a panel at the American Bar Association’s 30th Annual National Institute on White Collar Crime in San Diego.”


See here from Paul Monnin (a former DOJ enforcement attorney currently at Paul Hastings) titled “Everything Old is New Again: Why the Yates Memo is Constitutionally Suspect.” For an interview of Monnin regarding the same issues, see here.


The below statement regarding voluntary disclosure is not unique, versions of this statement are articulated on a frequent basis.

“The benefits of self-disclosure and cooperation are not always apparent. […] Despite these public announcements, companies still lack consistent and objective standards to measure the value of self-disclosure and cooperation.”

Yet it is notable when a former high-ranking DOJ FCPA enforcement attorney writes it as Hank Walther did recently in this article.

See this prior post titled “A Former Enforcement Official Is Likely to Say (Or Has Already Said) the Same Thing.”


In this recent speech, Assistant Attorney General Leslie Caldwell focused on:

“To address crime on a global scale, we are forging deep coalitions with our international enforcement and regulatory partners.  Our evolving approaches already have yielded significant successes, a couple of which I will highlight to illustrate my point.  And I would also like to discuss what this means for the global corporations and executives that you all represent when they are facing investigation by multiple enforcement agencies around the world.”

Regarding the DOJ’s “close collaboration with our enforcement partners from around the globe” she highlighted the VimpelCom and Alstom FCPA enforcement actions.

Caldwell further stated:

“The VimpelCom case also is an example of our efforts to marry our FCPA enforcement actions with our Kleptocracy Initiative.  In FCPA cases, the corrupt officials who receive bribes often are beyond the reach of U.S. law enforcement and may reside in countries where local anti-corruption efforts are weak, arbitrary or non-existent.   But just because we cannot get our hands on bribe recipients doesn’t mean we can’t try to get our hands on bribe proceeds if they enter the U.S. banking system.”

Scrutiny Alerts and Updates

Goldman Sachs

The Wall Street Journal reports:

“Goldman Sachs Group Inc. hired the daughter of a close ally to Malaysia’s prime minister around the time the firm’s bankers were pitching business to the country’s government investment fund, people familiar with the matter said. Goldman is looking into the hiring as part of its investigation into the firm’s actions related to the Malaysia fund and into the Wall Street firm’s former Southeast Asia chairman, Tim Leissner, said one of the people. The probe is also part of its broader investigation into the hiring of relatives of government officials or other well-connected people, the person said. Goldman is among several international banks under investigation by U.S. authorities to determine whether their hiring practices violated antibribery laws …”.


According to reports:

“When a Chinese clothing company swooped in and offered to sponsor Kenya’s famed runners, Nike panicked, Kenyan officials say. “Can we talk about the situation?” a Nike executive wrote to a Kenyan official after hearing the news that the Kenyans wanted to end their deal with the Beaverton-based company. “You and I go back a long way.” What followed — according to email exchanges, letters, bank records and invoices, provided by a former employee of Kenya’s athletics federation — has led to a major scandal in Kenya, a country in the midst of its biggest war against corruption in years. In a contract signed several years ago, Nike agreed to pay hundreds of thousands of dollars in honorariums and a one-time $500,000 “commitment bonus,” which the former employee called a bribe. The money was supposed to be used to help train and support poor Kenyan athletes who dream of running their way out of poverty. Instead, it was immediately sucked out of the federation’s bank account by a handful of Kenyan officials and kept off the books. Nike has denied any wrongdoing, saying in a statement that its payments were intended to help athletes, and it does not appear to be under investigation by U.S. authorities. But Kenyan authorities are suspicious. They have opened an extensive investigation, and all three Kenyan athletics officials accused of taking money from Nike have been suspended. Investigators with Kenya’s Directorate of Criminal Investigations said they had asked Nike repeatedly to provide more information. So far, they say, Nike has refused.”


In its recent annual report, the company stated:

“The DOJ and SEC are undertaking an investigation into whether the Group’s relationships with third parties who assist BPLC to win or retain business are compliant with the US Foreign Corrupt Practices Act. Certain regulators in other jurisdictions have also been briefed on the investigations. Separately, the Group is cooperating with the DOJ and SEC in relation to an investigation into certain of its hiring practices in Asia and is keeping certain regulators in other jurisdictions informed.”


The company has been under FCPA scrutiny since 2010 (no that is not a typo) and recently disclosed:

“The Company received in September, 2010 a subpoena from the SEC and associated inquiries from the U.S. Department of Justice, or DOJ, concerning possible non-compliance with the U.S. Foreign Corrupt Practices Act, or FCPA, in relation to certain aircraft sales outside of Brazil. In response, the Company retained outside counsel to conduct an internal investigation of sales in three countries.

In light of additional information, the Company voluntarily expanded the scope of the internal investigation to include sales in other countries, reported on these matters to the SEC and the DOJ and otherwise cooperated with them. The U.S. government inquiries, related inquiries and developments in other countries and the Company’s internal investigation are continuing and the Company will continue to cooperate with the governmental authorities, as circumstances may require. The Company has begun discussions with the DOJ for a possible resolution of the allegations of non-compliance with the FCPA. A resolution of the U.S. government inquiries, and related inquiries, proceedings and developments in other countries would result in fines, which may be substantial, and possibly other substantial sanctions and adverse consequences. Based upon the opinion of its outside counsel, the Company believes that there is no adequate basis at this time for estimating accruals or quantifying any contingency with respect to these matters.

In light of the above, we embarked on a comprehensive effort to improve and expand our compliance program worldwide. This multi-year task involved reexamining every aspect of our compliance systems, and where appropriate, redesigning or adding to them. Some of the key enhancements include the creation of a Compliance Department, the appointment of a Chief Compliance Officer reporting directly to the Risk and Audit Committee of the Board of Directors, the development of a program to monitor engagement of and payments to third parties, improvements to compliance policies, procedure and controls, the enhancement of anonymous and other reporting channels, and the development of a comprehensive training and education program designed to maintain and reinforce a strong compliance culture at all levels of Embraer globally. The Company will continue to promote enhancements and update its compliance program.”


Nortek disclosed FCPA scrutiny in January 2015 and recently disclosed.

“As previously reported, as part of our routine internal audit activities, we discovered certain questionable hospitality, gift and payment practices, and other expenses at our subsidiary, Linear Electronics (Shenzhen) Co. Ltd. (“Linear China”), which are inconsistent with our policies and raise concerns under the U.S. Foreign Corrupt Practices Act and perhaps under other applicable anti-corruption laws. We conducted 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 SEC and the DOJ to advise both agencies of our internal investigation. We are cooperating with the SEC and DOJ investigations into these matters. We take these matters very seriously and are committed to conducting 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 our consolidated financial condition or results of operations for the periods presented. 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. We cannot reasonably estimate the potential liability, if any, related to these matters resulting from any proceedings that may be commenced by the SEC, the DOJ or any other governmental authorities. In the fiscal year ended December 31, 2015 and 2014, approximately $2.3 million and $0.8 million, respectively, was recorded for legal and other professional services incurred related to the internal investigation of this matter. We expect to incur additional costs relating to the investigation of this matter in 2016.”


As highlighted in this prior post, the company has been under FCPA scrutiny since 2011 (no that is not a typo) and recently disclosed:

“As initially disclosed in our Annual Report on Form 10-K for the fiscal year ended July 31, 2011, we identified certain transactions involving our Danish subsidiary BK Medical ApS, or BK Medical, and certain of its foreign distributors, with respect to which we have raised questions concerning compliance with law, including Danish law and the U.S. Foreign Corrupt Practices Act, and our business policies. These have included transactions in which the distributors paid BK Medical amounts in excess of amounts owed and BK Medical transferred the excess amounts, at the direction of the distributors, to third parties identified by the distributors. We have terminated the employment of certain BK Medical employees and also terminated our relationships with the BK Medical distributors that were involved in the transactions. We have concluded that the transactions identified to date have been properly accounted for in our reported financial statements in all material respects. However, we have been unable to ascertain with certainty the ultimate beneficiaries or the purpose of these transfers. We have voluntarily disclosed this matter to the Danish Government, the U.S. Department of Justice, or DOJ, and the SEC, and are cooperating with inquiries by the Danish Government, the DOJ and the SEC. We believe that the SEC, DOJ, and Danish Government have substantially completed their investigation into the transactions at issue. We are engaged in discussions with the SEC, the DOJ and the Danish Government concerning a final resolution of these matters. In the second quarter of fiscal 2016, we accrued a charge of $13.3 million, of which $10.1 million was classified as general and administrative expense and $3.2 million was classified as other expense, net in our Consolidated Statements of Operations, in connection with these matters. This is in addition to a $1.6 million charge that we accrued in the fourth quarter of fiscal 2015, of which $1.0 million was classified as general and administrative expense and $0.6 million was classified as other expense, net in our Consolidated Statements of Operations. Any resolution of these matters, and the terms of and amounts payable in connection with any such resolution is subject to negotiation and approval of agreements with each of the SEC, the DOJ, and the Danish government.

During the three and six months ended January 31, 2016, we incurred inquiry-related costs of approximately $0.2 million and $0.2 million, respectively, in connection with this matter. During the three and six months ended January 31, 2015, we incurred inquiry-related costs of approximately $0.4 million and $1.1 million, respectively, in connection with this matter.”

Reading Stack

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. In this regard, this recent article titled “Red Tape In Latin America Makes It the Most Complex Region for Compliance in the World” caught my eye.

The Global Enforcement Report 2015 from Trace International is here. Kudos to Trace for adopting the core approach to tracking enforcement statistics.

“When a company and its employees or representatives face multiple enforcement actions involving substantially the same conduct, only one enforcement action is counted in the 2015 GER. If a company does not face an enforcement action but its employees or representatives do, the enforcement action is counted as one enforcement action. Finally, while multiple different authorities in one country may be responsible for enforcement actions, only one enforcement action is counted against a company or individual.”

Kudos also to Trace for omitting any analysis of so-called “declinations” given the inherent definitional issues as well as transparency issues surrounding so-called “declinations.”


A good weekend to all, and to the “most interesting man in the world,” all the best in retirement.


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