The United Kingdom Bribery Act is a more comprehensive statute than the Foreign Corrupt Practices Act. Unlike the FCPA’s anti-bribery provisions which has a required “foreign official” element, the U.K. Bribery Act – including its so-called Section 7 “failure to prevent bribery” offense – is capable of capturing commercial bribery as well.
Last week the United Kingdom Serious Fraud Office announced a Deferred Prosecution Agreement with Airline Services Limited (ASL) “for three counts of failing to prevent bribery arising from the company’s use of an agent to win three contracts … to refit commercial airliners for Lufthansa.”
According to the DPA, “at the time [between 2011 and 2013], notwithstanding the recent passing of the Bribery Act, ASL had made negligible efforts to educate its staff or to introduce processes to identify and counteract occasions of bribery.”
Under the heading “ASL’s anti-bribery procedures,” the Approved Judgment in connection with the DPA states:
“ASL’s compliance procedures during the relevant period from 2011 to 2013 were woefully inadequate. In December 2010 ASL had engaged external legal advisors to assess its compliance with the pending implementation of the Bribery Act 2010. This review identified that the use of a relatively small number of overseas agents represented a high bribery risk to ASL. The advisors made a number of recommendations to address this risk.
In order to assist ASL with implementing such recommendations the advisors provided ASL with a number of checklists and other documents, including in particular a draft “Anti-corruption Policy and Guidelines” document for use internally within ASL.
On 27 June 2011 a single event of training in relation to the Bribery Act 2010 was held for some of ASL’s senior managers and regional sales managers. The training included reference to the draft “Anti-corruption Policy and Guidelines”. However in September 2011 a senior executive of ASL informed the external advisors that ASL would beadopting “a different approach”. That saw the end of the external advisors’ work with ASL on compliance with the Bribery Act provisions.
Save for that one training session in June 2011, ASL did not seek to communicate its “Anti-corruption Policy and Guidelines” to staff at any time prior to January 2014. Nor did ASL seek to implement any of the remaining recommendations made by the external legal advisors. It is agreed that from the implementation of the Bribery Act 2010 on 1 July 2011 to the beginning of 2015, ASL did not have in place any adequate procedures in order to prevent bribery.”
Pursuant to the DPA, ASL agreed to pay £2,979,685.76 (consisting of a financial penalty of £1,238,714.31, disgorgement of profits representing the gain of the criminal conduct of £990,971.45, and a contribution to the SFO’s costs of £750,000.)
Of note, at the time of resolution ASL was effectively dormant “remaining only as a shell supported by its major investor for the purposes of permitting the SFO to conduct this investigation and to conclude the DPA.”
As highlighted in this prior post, in November 2019 Mark Lambert (a former co-president of Transport Logistics International) was convicted after a three week jury trial “for his role in a scheme to bribe an official at a subsidiary of Russia’s State Atomic Energy Corporation and on related fraud and conspiracy charges.”
Numerous prior posts (see here) have highlighted the FCPA case against Ng Lap Seng (as well as his conviction and subsequent appeals) “for his role in a scheme to bribe United Nations ambassadors to obtain support to build a conference center in Macau that would host, among other events, the annual United Nations Global South-South Development Expo.”
As discussed in this article: “a law firm that defended … Seng in his criminal bribery case is accusing the Macau businessman of not paying more than $1.9 million in legal fees.”
For the Reading Stack
A useful summary here from Jones Day attorneys regarding new guidance from Dutch law enforcement regarding the investigation and prosecution of foreign corruption.
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