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Friday Roundup


Guilty plea, Petrobras civil settlement, Alstom is done reporting, scrutiny alert, SEC FCPA enforcement, from the docket, checking in up north, and for the reading stack. It’s all here in the Friday roundup.

Guilty Plea

As highlighted in this prior post, in January 2017 the DOJ announced an FCPA and related enforcement action against four individuals for their roles in a scheme to pay $2.5 million in bribes to facilitate the $800 million sale of a commercial building in Vietnam (the so-called Landmark 72) to a Middle Eastern sovereign wealth fund.

Today, the DOJ announced: “Joo Hyun Bahn, aka Dennis Bahn, 39, of Tenafly, New Jersey, pleaded guilty in federal court in Manhattan to one count of conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and one count of violating the FCPA.  U.S. District Judge Edgardo Ramos of the Southern District of New York accepted the guilty plea.  Sentencing is scheduled for June 29 …”.

In the release, Acting Assistant Attorney General John Cronan stated:

“Bribery and corruption undermine fair competition and the rule of law. The fact that Joo Hyun Bahn’s intended scheme was thwarted by the greed and deception of one of his codefendants does not change the fact that he sought to steer an $800 million real estate deal by paying hundreds of thousands of dollars in bribes.  The Department is committed to prosecuting those like Bahn who seek to corruptly tilt the playing field to their advantage.”

U.S. Attorney Geoffrey Berman (SDNY) stated:

“As he has now admitted, Joo Hyun Bahn schemed to bribe a foreign official to close an $800 million real estate deal for a skyscraper in Vietnam — a deal that would have earned him a multimillion-dollar commission and much needed capital for his client, Keangnam Enterprises. As Bahn’s conviction demonstrates, federal law enforcement stands ready to root out commercial bribery wherever it is found.”

Petrobras Civil Settlement

Like many companies under FCPA or related scrutiny, Petrobras was named as a defendant in several shareholder lawsuits alleging securities fraud when its share price dropped in the aftermath of its scrutiny.

Earlier this week, Petrobras announced “that it has signed an agreement in principle to settle the securities class action lawsuit filed in the United States District Court for the Southern District of New York (“SDNY”).”As stated in the release:

“The agreement, which is subject to approval by the court, is intended to resolve all pending and prospective claims by purchasers of Petrobras securities in the United States and by purchasers of Petrobras securities that are listed for trading in the United States. It eliminates the risk of an adverse judgment which, as Petrobras has previously reported, could have a material adverse effect on the company and its financial situation, and puts an end to the uncertainties, burdens and costs of protracted litigation.

Under the proposed settlement, Petrobras has agreed to pay US$ 2.95 billion to resolve claims in two installments of US$983 million and a last installment of US$984 million. The first installment will be paid within 10 days of preliminary approval of the settlement by the court. The second installment will be paid within 10 days of final approval of the settlement. The third installment will be paid by the later of (i) six months after final approval, or (ii) January 15, 2019.  The total settlement amount will be recognized in the fourth quarter of 2017.

The agreement does not constitute any admission of wrongdoing or misconduct by Petrobras. In the agreement, Petrobras expressly denies liability. This reflects its status as a victim of the acts uncovered by Operation Car Wash, as recognized by Brazilian authorities including the Brazilian Supreme Court.  As a victim of the scheme, Petrobras has already recovered R$1.475 billion in restitution in Brazil and will continue to pursue all available legal remedies from culpable companies and individuals.

The agreement is in the company’s best interest and that of its shareholders, given the risks of a verdict advised by a jury, particularities of US procedure and securities laws, as well its assessment of the status of the class action and the nature of such litigation in the United States, where only approximately 0.3% of securities-related class actions proceed to trial.

The agreement will now be submitted to the district court in the SDNY for review. If preliminary approval is granted, the court will notify the members of the class of the terms of the proposed settlement. After considering any objections and a hearing on the fairness of the proposed settlement, the court will decide whether to grant final approval.

As a result of the agreement, the parties will ask the United States Supreme Court to defer consideration of Petrobras’s petition for a writ of certiorari, which was scheduled for January 5, 2018, pending final approval of the proposed settlement.”

Alstom is Done Reporting

As highlighted in this previous post, in December 2014 Alstom and related entities resolved a $772 million DOJ FCPA enforcement action concerning alleged conduct in Indonesia, Saudi Arabia, Egypt, the Bahamas, and Taiwan. As part of the resolution, Alstom agreed to report to the DOJ (at no less than 12 month intervals for a three-year term) regarding remediation and implementation of the compliance program and internal controls, policies, and procedures.

Earlier this week Alsom announced:

“Alstom announces that the three year period of self-reporting obligations that the Group agreed to as part of the Plea Agreement of 22 December 2014 has come to a successful completion. This achievement is the result of the company’s efforts during the period and a close cooperation with the US Department of Justice. The company remains committed to the highest level of integrity in its activities and will continue the development of its compliance program.

“It is with great satisfaction that we announce that Alstom has successfully concluded its three year period of self-reporting to the DOJ. This result is just another step in the development of our ethics and compliance culture and we take this opportunity to renew our commitment to uphold our high standards of integrity in all of our activities”, declares Pierrick Le Goff, General Counsel at Alstom.

Alstom remains fully committed to the principles of ethical business. Alstom has in place a strong compliance program, which ensures the strict respect of laws and regulations in force in all countries in which the Group operates, with prevention of corruption measures as a top priority. Alstom rules address and set clear guidelines for dealings with public authorities and customers and other areas of corruption risk.  Alstom constantly seeks to improve its compliance program and implement best in class compliance rules and processes. Alstom was among the first companies in the World to obtain the AFAQ ISO 37001 certification awarded by AFNOR Certification following an audit carried out between March and May 2017, confirming its commitment to fight corruption.”

Scrutiny Alert

Ciena Corp., Maryland-based technology company, recently disclosed:

“During fiscal 2017, one of Ciena’s third-party vendors raised allegations about certain questionable payments to one or more individuals employed by a customer in a country in the ASEAN region. Ciena promptly initiated an internal investigation into the matter, with the assistance of outside counsel, which investigation corroborated direct and indirect payments to one such individual and sought to determine whether the payments may have violated applicable laws and regulations, including the U.S. Foreign Corrupt Practices Act (“FCPA”). In September 2017, Ciena voluntarily contacted the Securities and Exchange Commission (“SEC”) and the U.S. Department of Justice (“DOJ”) to advise them of the relevant events and the findings of Ciena’s internal investigation. With the direct oversight of the Board, Ciena continues to cooperate fully with the SEC and DOJ in their review of the investigation.

Ciena’s operations in the relevant country have constituted less than 1.5% of consolidated revenues as reported by Ciena in each fiscal year since 2012. Ciena does not currently anticipate that this matter will have a material adverse effect on its business, financial condition or results of operations. However, as discussions with the SEC and DOJ are ongoing, the ultimate outcome of this matter cannot be predicted at this time. As of the filing of this Report, no provision with respect to this matter has been made in Ciena’s consolidated financial statements. Any determination that Ciena’s operations or activities are not in compliance with the FCPA or other applicable laws or regulations could result in the imposition of fines, civil and criminal penalties, and equitable remedies, including disgorgement or injunctive relief.”

SEC FCPA Enforcement

The SEC has rather limited jurisdiction when it comes to enforcing the FCPA. Generally speaking, the SEC only has jurisdiction against so-called issuers (publicly-traded companies and entities with reporting obligations to the SEC) and associated persons.

It is interesting to note that while SEC FCPA enforcement has generally trended upward over the last decade, the number of issuers subject to SEC jurisdiction has dramatically shrinked. As highlighted in this article: “In 1996, more than 7,400 companies were listed on U.S. stock exchanges. Today, that figure is less than half, according to the Center for Research in Security Prices at the University of Chicago’s Booth School of Business.”

From the Docket

Remember that individual FCPA enforcement action in which the DOJ used the Argentina prong of the 2008 Siemens enforcement action to criminally charge “eight former executives and agents of Siemens AG and its subsidiaries have been charged for allegedly engaging in a decade-long scheme to bribe senior Argentine government officials to secure, implement and enforce a $1 billion contract with the Argentine government to produce national identity cards”?

Perhaps not, it occurred in December 2011 after all (see here for the prior post).

In any event, as highlighted here (Eberhard Reichert, a 78-year-old German national) who was arrested in Croatia in September 2016 and agreed to be extradited to New York recently pleaded not guilty.

Checking in Up North

The Globe and Mail goes in depth on Bombardier:

“Bombardier Inc., one of Canada’s global champions of industry – and a major recipient of taxpayer assistance – won hundreds of millions of dollars worth of international contracts after making controversial side payments known as “success fees” to agents in foreign countries, a year-long, round-the-world investigation by The Globe and Mail has found.

The investigation was sparked by the allegations of a former employee of Bombardier‘s rail unit, who told The Globe that he personally took part in the preparation of bids for foreign contracts that involved success-fee payments in South Africa, South Korea and Malaysia while working as part of the company’s bid-preparation team in the early 2000s.”

As highlighted here,

“A Calgary man who was accused of conspiring to bribe officials in the Thai military no longer faces charges. The international corruption case made headlines last November when Canadian General Aircraft president Larry Kushniruk, 69, was charged with conspiracy to bribe foreign public officials.

“He’s relieved to have it behind him, he is happy to have his name back,” said Kushniruk’s lawyer, Gavin Wolch, after receiving a letter from federal prosecutor Kent Brown directing a stay of proceedings. “He was innocent.”

At the time the charge was laid, RCMP alleged Kushniruk conspired to bribe officials in the Thai military to secure the sale of a commercial passenger jet from Thai Airways, the country’s national airline. It is alleged Kushnirik brokered the proposed sale through his company, which deals in commercial airline sales and parts. Investigators were tipped off in 2013, when the FBI flagged irregularities in the sale, prompting an investigation by the RCMP’s federal serious and organized crime unit.”

For the Reading Stack

The most recent edition of the always informative FCPA Update from Debevoise & Plimpton is here.

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