Archive for the ‘Internal Controls’ Category

Ipse Dixit

Tuesday, April 8th, 2014

This post last week highlighted the recent activity in SEC v. Mark Jackson & James Ruehlen (a Foreign Corrupt Practices Act enforcement action scheduled for trial this summer).  As noted in the post, among other things, the SEC is seeking to exclude various defense expert witnesses on a variety of issues including internal controls issues.

If you read the SEC’s motions (see here – condensed into one document) you will see that a primary basis for exclusion is the SEC’s argument that the experts are merely offering their own naked ipse dixit.

I must confess – arcane latin phrases not being in my strike zone – I had to look up the meaning of ipse dixit.

Ipse Dixit – Latin for He himself said it – an unsupported statement that rests solely on the authority of the individual who makes it.

The term ipse dixit appears approximately 30 times in the SEC’s motions – and related to it – is the SEC’s argument that the experts’ internal controls opinions should be excluded because the experts fail to define certain terms and/or there is no discernible methodology underlying their opinions.

For instance, in seeking to exclude Alan Bell (CPA – regarding, among other things, internal controls) the SEC states:

“Bell could not define what constitutes a “circumvention” of an internal control.”

“Bell concedes that there are no written standards to evaluate what constitutes, in his view, a “circumvention” of an internal control.”

“Bell’s opinions are not the product of a reliable methodology applied to the facts of this case. In fact, Bell employed no methodology at all; instead, his opinions are “based on [his] 40 years of experience.”

In seeking to exclude Gary Goolsby (CPA – regarding, among other things, internal controls issues) the SEC states:

“There is also no discernible methodology underlying his opinion on Jackson’s purported reliance [on Noble's internal controls], other than Goolsby’s own naked ipse dixit. Goolsby’s methodology reduces to the proposition that “I know what I’m looking at.” Yet, in deposition, he could not explain what his opinion means, as a practical matter, with reference to the conduct at issue in this case. Goolsby’s testimony thus confirms what is apparent from his report – his factual findings are based on nothing more than his subjective say-so.”

In seeking to exclude Lowell Brown (regarding various FCPA compliance issues) the SEC states:

“There is no discernible analysis or methodology underlying Brown’s opinion as to Jackson’s purported reliance, other than Brown’s own naked ipse dixit – a manifestly improper basis for expert testimony.”

In seeking to exclude Professor Ronald Gilson (regarding, among other things, internal controls issues) the SEC states:

“There is no genuine methodology here, other than Gilson’s own ipse dixit based on his subjective interpretation of the evidence

In the final analysis, Gilson is an advocate for the defense who proffers nothing but his ipse dixit in the place of rigorous analytical connection between his deficient methodology (reading deposition transcripts and exhibits) and his expert conclusion (the inference that if Ruehlen told others at Noble what he was doing, he lacked the corrupt intent to violate the FCPA, as opposed to simply colluding to bribe foreign officials).”

The irony of course is that while attacking the defendants’ experts for their own ipse dixit, many of the SEC’s FCPA internal controls enforcement theories are nothing more than ipse dixit.

For instance, as noted in this prior post, the SEC alleged that Oracle violated the FCPA’s internal control provisions. The only allegations against Oracle itself is that it failed to audit distributor margins against end user prices and that it failed to audit third party payments made by distributors.  The SEC did not allege any red flags to suggest why Oracle should have done this.  Thus, how did Oracle violate the FCPA’s internal controls provisions?  What was the methodology the SEC used?

Ipse dixit.

Indeed, in a pointed critique of the SEC’s Oracle enforcement theory, the former Assistant Chief of the DOJ’s FCPA unit stated:

“Oracle is the latest example of the SEC’s expansive enforcement of the FCPA’s internal controls provision, and it potentially paints a bleak picture—one in which the provision is essentially enforced as a strict liability statute that means whatever the SEC says it means (after the fact).”  (See here for the prior post).

In many SEC FCPA enforcement actions, the SEC merely makes conclusory statements for why the company allegedly violated the FCPA’s internal controls provisions.  For instance, in the Philips enforcement action (see here for the prior post) the SEC states:

“Philips failed to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions were properly recorded by Philips in its books and records. Philips also failed to implement an FCPA compliance and training program commensurate with the extent of its international operations. Accordingly, Philips violated [the internal control provisions].”

Source?  Methodology?

Ipse dixit.

As noted in my recent article “Why You Should Be Alarmed by the ADM FCPA Enforcement Action” one reason, among others, why you should be alarmed by the action is because of the “failure to prevent” standard invoked by the SEC for why ADM violated the FCPA’s internal controls provisions.  As noted in the article, this standard  does not even exist in the FCPA and is inconsistent with actual legal authority.  (See here for the previous post regarding SEC v. World-Wide Coin – the only judicial decision to directly address the FCPA’s internal controls provisions).

Moreover, as noted in the article, the “failure to prevent standard” is inconsistent with SEC guidance relevant to the internal-controls provisions.  (See also this prior post).  The SEC’s most extensive guidance on the internal controls provisions states, in pertinent part, as follows:

“The Act does not mandate any particular kind of internal controls system. The test is whether a system, taken as a whole, reasonably meets the statute’s specified objectives. ‘‘Reasonableness,’’ a familiar legal concept, depends on an evaluation of all the facts and circumstances.

Private sector decisions implementing these statutory objectives are business decisions. And, reasonable business decisions should be afforded deference. This means that the issuer need not always select the best or the most effective control measure. However, the one selected must be reasonable under all the circumstances.

Inherent in this concept [of reasonableness] is a toleration of deviations from the absolute. One measure of the reasonableness of a system relates to whether the expected benefits from improving it would be significantly greater than the anticipated costs of doing so. Thousands of dollars ordinarily should not be spent conserving hundreds. Further, not every procedure which may be individually cost-justifiable need be implemented; the Act allows a range of reasonable judgments.

The test of a company’s internal control system is not whether occasional failings can occur. Those will happen in the most ideally managed company. But, an adequate system of internal controls means that, when such breaches do arise, they will be isolated rather than systemic, and they will be subject to a reasonable likelihood of being uncovered in a timely manner and then remedied promptly.”

What is the source for the “failure to prevent” standard in ADM?  What is the methodology?

Ipse dixit.

In short, while attacking the defendants’ experts for their lack of defined methodology regarding internal controls issues, the SEC itself has long recognized that the FCPA’s internal controls lack a defined methodology.

As noted in this post, in a 2013 speech SEC Chair Mary Jo White reminded us why trials are important.  Among other things, White stated that “trials allow for more thoughtful and nuanced interpretations of the law in a way that settlements and summary judgments cannot.”

The SEC’s enforcement action against Jackson and Ruehlen represents an extremely rare instance in which the SEC is being forced to articulate its FCPA positions in the context of an adversary proceeding.

The SEC’s motions seeking to exclude defendants’ experts – while primarily based on ipse dixit – reminds us that a large portion of the SEC’s (and DOJ’s) FCPA enforcement program is nothing more than ipse dixit – and subjective say so.

Much Activity In SEC Enforcement Action Against Jackson & Ruehlen

Monday, March 31st, 2014

If you enjoy reading pleadings in Foreign Corrupt Practices Act enforcement actions, then your week is already off to a great start as there is much to read.

In advance of a scheduled July 9th trial in SEC v. Mark Jackson & James Ruehlen (an enforcement action filed in the S.D. of Tex. in February 2012 and highlighted in last Friday’s post), both parties filed numerous motions last Friday.

The SEC filed: (1) a motion for partial summary judgment on the inapplicability of the facilitating payment exception, and (2) a motion for a determination of foreign law pursuant to Federal Rule of Civil Procedure 44.1.  The SEC also filed 5 motions seeking to exclude defendants’ expert witnesses.  Both Jackson and Ruehlen filed separate motions for summary judgment as well as 3 motions seeking to exclude the SEC’s expert witnesses.

This post provides an overview of the motions.

SEC Motion for a Determination of Foreign Law

In pertinent part, the SEC states as follows:

“Questions of Nigerian law pervade this bribery case for two reasons. First, findings on threshold questions of Nigerian law are necessary for the jury to determine whether Defendants induced foreign officials “to do or omit to do any act in violation of the lawful duty of such foreign official[s]” in violation of Section 30A of the Securities Exchange Act of 1934 (the “Exchange Act”), an element of the SEC’s bribery claims. 15 U.S.C. §78dd-1(a)(3)(A)(ii) (emphasis added).  Questions of Nigerian law are also necessary to determine whether the payments at issue in this case fit within the narrow “facilitating payment” exception under the
Foreign Corrupt Practices Act (the “FCPA”).

These questions of Nigerian law include: (i) whether the grant of a Temporary Import Permit (“TIP”) – a concession that allows an importer to avoid the payment of import duties – was discretionary; (ii) what was the permissible duration of a TIP and whether and to what extent a TIP may be extended; and (iii) whether Nigerian customs officials could lawfully accept payments to approve a TIP based on false paperwork showing that Noble’s rigs in Nigeria had been exported and re-imported, when the rigs in fact had never moved out of Nigerian waters. These questions of Nigerian law are, like questions of U.S. law, questions of law for the Court to decide, and each defines the scope of Nigerian customs officials’ “lawful duty” in connection with granting the TIPs and TIP extensions at issue in this case.

Second, rulings on these issues of Nigerian law are necessary in light of the Defendants’ purported expert evidence. Defendants intend to introduce expert evidence asserting that, among other things, the payment of bribes to civil servants in Nigeria “is common – and even expected”; the submission of falsified documents to Nigerian governmental agencies is “satisfactory” or “acceptable” from the Nigerian government’s perspective; that laws governing the issuance of temporary import permits are not laws but “internal rules or policies”; and that compliance with Nigerian law is unclear. Thus, the Defendants’ experts intend to opine directly or indirectly on what is allegedly “permissible” in Nigeria notwithstanding clear and undisputed provisions of Nigerian law to the contrary. Because foreign law is for the Court, not the jury, these issues of Nigerian law should be resolved by the Court.”

SEC Motion Regarding  Inapplicability of Facilitating Payment Exception

As noted in this prior post, in December 2012 Judge Ellison concluded, in what was believed to be an issue of first impression, that the SEC must bear the burden of negating the facilitation payments exception.

In its motion, the SEC states as follows.

“The SEC seeks partial summary judgment on the limited question of whether the payments to Nigerian government officials that Defendants authorized to secure Temporary Import Permits (“TIPs”) and TIP extensions fit within the narrow “facilitating payment” exception under the Foreign Corrupt Practices Act (the “FCPA”).

The SEC alleges that the Defendants violated the anti-bribery and accounting provisions of the FCPA by authorizing the payment of bribes on behalf of their employer – Noble Corporation – to Nigerian government officials to influence or induce these officials to grant Noble TIPs and TIP extensions. These TIPs allowed Noble to avoid paying import duties on oil drilling rigs that it operated in Nigeria. Because TIPs provide only a temporary exemption from import duties, at the expiration of a TIP and its allowable extension, Noble had an obligation to either pay the import duties due on the drilling rigs or export them out of Nigeria. Using bribes and other means, Defendants secured serial TIPs and TIP extensions, which enabled Noble to keep its rigs operating continuously in Nigeria well beyond the time period allowed under Nigerian law.

The FCPA broadly prohibits corrupt payments to foreign officials to influence any official act or induce any official to violate a lawful duty. See 15 U.S.C. § 78dd-1(a). But there is a narrow exception to that broad prohibition: Under subsection 78dd-1(b), the FCPA permits certain “facilitating or expediting payments” made “to expedite or to secure the performance of a routine governmental action.” 15 U.S.C. § 78dd-1(b). This so-called facilitating payment exception does not apply in this case, as a matter of law.

Summary judgment is appropriate for three reasons:

First, the law of decision is clear and binding. This Court previously held that payments to government officials for discretionary or illegal TIPs and TIP extensions are not permissible facilitating payments.

Second, the applicable foreign law is clear and undisputed. As demonstrated in the SEC’s Motion for a Determination of Foreign Law Pursuant to Federal Rule of Civil Procedure 44.1 (“Rule 44.1 Motion”), the relevant provisions of Nigerian law are clear and undisputed. First, under Nigerian law, customs officials have discretion to grant or deny TIPs and TIP extensions; these TIPs and extensions are a discretionary exemption from import duties, not an entitlement. Second, Nigerian law prohibits both the use of false paperwork to secure TIPs and payments to government officials to secure TIPs and TIP extensions. Third, Nigerian law provides that an initial TIP may not exceed twelve months and may only be extended once for up to an additional twelve months. These provisions of Nigerian law are clear and undisputed, and must be determined as a matter of law by the Court.

Third, the material facts are not in genuine dispute. The payments to Nigerian government officials at issue in this case were themselves illegal in Nigeria and were authorized to obtain import duty exemptions that were (i) discretionary and (ii) in certain cases, illegal under Nigerian law. Specifically, each of the payments to Nigerian government officials at issue was authorized in connection with obtaining a valuable and discretionary government benefit – i.e., import duty exemptions for Noble’s rigs. Certain of the payments were made to obtain TIPs on false pretenses, in violation of Nigerian law. And, some of the payments were authorized to obtain TIP extensions that exceeded the number and duration of TIP extensions allowed under Nigerian law.

For these reasons, the SEC respectfully requests that the Court grant its motion for partial summary judgment that the facilitating payment exception is not applicable in this case.”

SEC Expert Motions

In addition to the above motions, the SEC also filed 5 motions seeking to exclude defendants’ experts:  (1) Alan Bell (CPA – regarding internal controls and books and records issues); (2) Gary Goolsby (CPA – regarding corporate governance and internal controls issues; (3) John Campbell (former U.S. ambassador to Nigeria – regarding Nigeria specific issues; (4) Professor Ronald Gilson (regarding various corporate governance and internal controls issues); and (5) H. Lowell Brown (regarding various FCPA compliance issues).

Jackson’s Motion for Summary Judgment

The motion, signed by David Krakoff (BuckeySandler) , states as follows.

“This case is entirely about Mr. Jackson’s state of mind: Did he act “corruptly” in violation of the FCPA when he approved certain payments to Nigerian customs officials? In denying the Defendants’ Motions to Dismiss, the Court held that an act is done corruptly when it is “done with an evil motive or wrongful purpose of influencing a foreign official to misuse his position.”  It is the SEC’s burden to prove that “Defendants acted corruptly.”

The SEC failed to come close to carrying that burden. Put simply, discovery revealed only one thing: Undisputed evidence that Mr. Jackson acted with the “good faith” belief that Noble’s payments facilitated getting temporary import permits and extensions to which Noble was entitled.  But as the Court observed regarding permit extensions, to establish corrupt intent the SEC must show “that Defendants knew they were not entitled to extensions as a matter of right upon satisfying certain basic threshold requirements.”

Mr. Jackson was repeatedly advised by Noble management that Noble was entitled to those permits and extensions. He was advised by management and PricewaterhouseCoopers that as long as the rigs had contracts to drill oil for the benefit of the Nigerian government, the rigs could stay in the country to perform those contracts. He was advised and observed that legal and audit experts were reviewing Noble’s FCPA compliance and, specifically, compliance in its Nigerian operations. And he was advised that Noble’s Nigerian lawyer had counseled that the use of the so-called “paper process,” where rigs obtained new permits without leaving the country, was legal in Nigeria.

The SEC has no evidence to prove Mr. Jackson’s state of mind was anything different. Despite many promises in the SEC’s pleadings, promises proved false by discovery, there was no evidence that Mr. Jackson believed Nigerian officials had discretion to deny Noble these permits and extensions. There was no evidence that he knew the “paper process” was illegal in Nigeria, so that any payments related to it had to be corrupt. And there was no evidence that he misled anyone – not the Audit Committee, not auditors, not anyone – about any of Noble’s facilitating payments. Instead, what he knew was that Noble’s legal counsel and internal auditors did not question the propriety of payments to Nigerian customs officials. No reasonable jury could conclude that Mark Jackson acted with the state of mind requisite for a violation of the FCPA. The SEC has not met its burden and the Court should grant summary judgment on all claims.”

Ruehlen’s Motion for Summary Judgment

The motion, signed by Nicola Hanna and Joseph Warin (Gibson Dunn), states as follows.

“The Complaint portrays Jim Ruehlen as a “rogue” employee who, shortly after being promoted to the first management-level position of his career, embarked on an intricate scheme to bribe Nigerian officials to obtain illegal temporary import permits for Noble’s rigs; routinely flouted company policy; ignored directions from Noble’s Audit Committee; and concealed illicit payments in Noble’s books and records. At the motion to dismiss stage, the Court was required to accept those allegations as true. Since then, 15 months of discovery have laid bare the utter falsity of the SEC’s narrative.

The undisputed evidence establishes that Mr. Ruehlen—a diligent and hardworking operations employee with an impeccable reputation for honesty and integrity—at all times acted  in good faith and under the close supervision of Noble’s most senior executives. At no point did he attempt to conceal any conduct or circumvent controls or company processes. To the contrary, it was Mr. Ruehlen who in 2004 first reported Noble’s use of the so-called “paper process”—the central focus of the SEC’s claims in this matter. And it was Mr. Ruehlen who received approval for every one of the payments at issue from Noble’s senior management, executives who had access to experts to assess the nature and propriety of those payments. It is undisputed that none of those executives or experts ever raised concerns to Mr. Ruehlen about the payments. The evidence also shows that Mr. Ruehlen, who had no accounting or legal training, had no role in determining how the payments—which were well known within Noble’s corporate hierarchy—were recorded in Noble’s books. And to compound the irony of the SEC’s charges against Mr. Ruehlen, it was Mr. Ruehlen who independently raised new concerns regarding the temporary import process in early 2007, prompting Noble’s internal investigation and voluntary disclosure to the U.S. government.

Notwithstanding this evidence—much of which was known to the SEC well before it filed this action—the SEC charged Mr. Ruehlen with violating the FCPA’s books and records and internal accounting control provisions (collectively, the “accounting provisions”) “under every stretched legal theory imaginable.” Purportedly to “streamline the presentation of evidence to the jury,” the SEC—on the eve of summary judgment—voluntarily dismissed two of those claims (that Mr. Ruehlen failed to “implement” a system of internal accounting controls and aided and abetted Noble’s alleged failure to “devise and maintain” such a system). But the SEC’s remaining FCPA accounting provision claims fail for the same reasons as the claims it now tacitly admits lacked merit—Mr. Ruehlen simply had no responsibility for or authority over the accounting function at Noble, and had no role in determining how the payments at issue were recorded. Moreover, the SEC failed to develop any evidence during discovery to support the numerous—and illogical—ways that Mr. Ruehlen allegedly “circumvented” Noble’s system of internal accounting controls. The Court should grant summary judgment on these claims in light of the undisputed evidence.

The Court should also grant summary judgment on the SEC’s claims for violations of the FCPA’s anti-bribery provisions. Whether the SEC can prove these claims turns entirely on Mr. Ruehlen’s state of mind—i.e., whether he acted “corruptly.” The undisputed evidence shows that Mr. Ruehlen, like many others within the company, believed in good faith that the payments were to secure or expedite temporary import permits to which Noble was entitled.”

In addition to the above motions, the defendants also jointly filed 3 motions seeking to exclude SEC experts:  (1) Jeffrey Harfenist (CPA – as to various internal controls issues); (2) Wayne Kelley (as to various customs and practices in the oil and gas industry); and (3) Kofo Olugbesan (a former official of the Nigerian Customs Service).

FCPA Readings

Wednesday, March 12th, 2014

If your idea of a good time is cuddling up with an entire law journal volume devoted to the Foreign Corrupt Practices Act, then this post is for you.

Even if that is not your idea of a good time, if you are the least bit interested in the FCPA and its evolution, then you owe it to yourself to get your hands on the Fall 1982 edition of the Syracuse Journal of International Law and Commerce, a symposium volume titled “The Foreign Corrupt Practices Act:  Domestic and International Implications.”

This post previously highlighted the speech by Richard Shine (Chief, Multinational Fraud Branch, Criminal Division, U.S. Department of Justice – the name given to the DOJ’s then de facto FCPA Unit) in the volume.

This recent post highlighted the speech by Frederick Wade (Chief Counsel, SEC Enforcement Division) in the volume.

The remainder of this post highlights notable aspects of other articles found in the Fall 1982 edition of the Syracuse Journal of International Law and Commerce.

In “An Overview of the FCPA,” Wallace Timmeny (the former Deputy Director, SEC Division of Enforcement and at the time a lawyer in private practice) rightly identified the foreign policy concerns which motivated Congress to pass the FCPA:

“Concerns were expressed that our government was faced with foreign policy determinations and decisions made by American corporations.  In other words, some of our corporations were affecting foreign policy and there was also the overriding concern that the whole idea of foreign payments or corruption in business was really putting an arrow in the bow of the countries that oppose our system.”

For more on this primary motivation of Congress in enacting the FCPA, and how the FCPA was thus not a purely altruistic act, see my article “The Story of the Foreign Corrupt Practices Act.”

In “An Examination of the Accounting Provisions of the FCPA,” Lloyd Feller (the former Associate Director of the SEC’s Division of Market Regulation and at the time a lawyer in private practice) nicely touched upon the FCPA’s books and records and internal controls provisions and how they created much controversy at the time.

“Let me try to put into context the controversy surrounding the accounting provisions.  First, it is important to understand that the accounting provisions are part of the Securities Exchange Act of 1934, and apply to all issuers which register securities with the SEC.  The provisions apply to all such issuers, whether or not they do business overseas.  The Act, as it is applied through the accounting provisions, has absolutely nothing to do with foreign corrupt practices; it has to do with accounting, including the maintenance of books and records, and the establishment and maintenance of a system of internal accounting controls.”

“I think it is important to start with the understanding of how the Act was presented to the corporate community at the time it was passed, because the context in which the words were used and the purpose for which the accounting provisions were intended create the great controversy.  It is important to understand that people who never heard of the bribery of foreign officials woke up one day and found that an Act had just been passed which applied to them in very significant ways.  This was an Act which they had never heard of, had never thought involved them, had never paid any attention to, and had never understood.  They listened to the lawyers and accountants explain it to them and still did not understand.”

In “The SEC Interpretative and Enforcement Program Under the FCPA,” John Sweeny (former Assistant General Counsel of the SEC and at the time a lawyer in private practice) rightly noted:

“The SEC did not actively support the bribery provisions of the Foreign Corrupt Practices Act.  Indeed, it’s not entirely clear that they have any interest in prohibiting bribery per se.”

Sweeny also nicely touched upon a prosecutorial common law issue that remains today.

“The corporate community cannot sit back and wait to see how the law develops.  Because it makes sound business sense to comply with federal regulatory authorities without a public clamor, corporations must confirm their activity in ways which the agency requires.  To do otherwise would mean that the corporations would be risking substantial litigation expenses and adverse publicity.”

In ”International Aspects of the Control of Illicit Payments,” Professor Seymour Rubin assessed the then current state of the FCPA.

“The course of events in this particular area has been long, but it has not yielded much in the way of result.  Whether the FCPA has yielded a great deal in the way of results, I leave to all of you who have considered the matter.  Certainly it has yielded much in the way of instruction to people in various corporations.  I am somewhat impressed by the amount of paper which has been produced on this subject.  It reminds me again of the old saying to the effect that when the weight of the paper equals the weight of the airplane, the airplane will fly.”

Professor Rubin also rightly identified bribery and corruption as a trade issue and particularly how Senate Resolution 265 sponsored by Senator Ribicoff during the FCPA’s legislative debate was the most promising way to deal with the bribery and corruption problem.  For more on Senate Resolution 265, see the Story of the Foreign Corrupt Practices Act (pgs. 982-984).

“[Senator Ribicoff's proposal - Senate Resolution 265] was more realistic than some of the other proposals.  In particular, Senator Ribicoff argued that bribes, as well as similar practices, represent distortions of proper trade practices.  Under this premise, the members of the General Agreement on Tariffs and Trade would be the appropriate group to consider the question of illicit payments and bribes that distort the fair competition desirable in the field of international trade.  In other words, just as dumping and subsidization distort normal competition, so too does the practice of making illicit payments.  This premise served as the basis upon which the issue was to be presented at the GATT conference.  But when a special trade representative presented Senator Ribicoff’s proposal before the GATT conference, he was greeted with polite silence.  The GATT, in 1979, concluded a multilateral trade negotiation.  Among other things, this multilateral trade negotiation dealt with trade-distorting practices such as nontariff barriers, the question of government procurement, dumping codes, and the anti-subsidy or subsidies and countervailing duties.  It would seem that the multilateral trade negotiation would have been a legitimate arena in which to discuss the subject, as being one more example of a trade distortion which ought to be regulated.”

“I think if one were to rexamine the idea presented in Senate Resolution 265 and adopt this in the area of trade, one would be addressing the problem of illicit payments in more meaningful and significant terms.  When a large contract is lost by an American corporation because somebody else paid a bribe, a trade distortion results.  Clearly, if one were really serious about achieving a meaningful agreement in the area of international control of illicit payments, the peg on which to hang it would be trade policy and not morality.”

In “The Foreign Corrupt Practices Act:  Implications for the Private Practitioner,” Robert Primoff (a lawyer in private practice) called the FCPA a “prosecutor’s paradise” and observed:

“The target is always guilty of the violation.  The government has the option of deciding whether or not to prosecute.  For practitioners, however, the situation is intolerable.  We must be able to advise our clients as to whether their conduct violates the law, not whether this year’s crop of administrators is likely to enforce a particular alleged violation.  That would produce, in effect, a government of men and women rather than a government of law.”

If the Fall 1982 edition of the Syracuse Journal of International Law and Commerce does not completely fill your FCPA belly, you might also want to check out Volume 18, Number 2 of the Northwestern Journal of International Business (Winter 1998).

It is a symposium edition titled “A Review of the Foreign Corrupt Practices Act on Its Twentieth Anniversary:  Its Application, Defense and International Aftermath.“  The articles are rather pedestrian, but Stanley Sporkin’s (the former Director of the SEC’s Enforcement Division during Congress’s consideration and deliberation of the FCPA) article “The Worldwide Banning of Schmiergeld:  A Look at the Foreign Corrupt Practices Act On Its Twenieth Birthday” is worth a read as he provides a first-person account of the origins of the FCPA. [In case you are wondering Schmiergeld is the German word for bribe].

See here for a prior post detailing articles in a 2012 symposium edition of the Ohio State Law Journal “The FCPA At Thirty-Five and Its Impact on Global Business.”

Former Assistant Chief Of The DOJ’s FCPA Unit Blasts Aspects Of SEC FCPA Enforcement

Tuesday, February 4th, 2014

This post has a similar theme to this prior post.  The theme is – all one has to do is wait for former DOJ and SEC FCPA enforcement officials to blast various aspects of the current FCPA enforcement climate.

Touching upon the same issues I first highlighted in this August 2012 post titled “The Dilution of FCPA Enforcement Has Reached a New Level With the SEC’s Enforcement Action Against Oracle,” as well as prior posts here, here and here, a former Assistant Chief of the DOJ’s FCPA Unit (William Stuckwisch - currently a partner at Kirkland & Ellis) blasts certain aspects of SEC FCPA enforcement in this recent article published in Criminal Justice.

The article begins:

“Imagine the following scenario: You have guided your client, a publicly traded company, through the long and winding process that is a Foreign Corrupt Practices Act (FCPA) internal investigation. Afterward, or increasingly more often simultaneously, you then lead your client through presentation of the results of the investigation to the United States Department of Justice (DOJ) and Securities and Exchange Commission (SEC) (collectively, “government”). Ultimately, neither the internal investigation nor the government’s investigation finds any improper payment (or offers of payments) to any foreign official, or any other knowing misconduct. As a result, the government cannot pursue substantive FCPA antibribery charges against your client, and the DOJ cannot pursue any other FCPA-related criminal charges. Just when you begin to savor this significant success, you are ripped back to reality, as the SEC informs you that, nevertheless, your client faces civil enforcement under the FCPA’s internal controls provision and demands a significant penalty.  Unfortunately, this scenario is not a hypothetical for the FCPA Bar to deliberate at conferences and include as footnotes in memoranda addressing real-world client issues. Instead, it mirrors the facts publicly alleged in the SEC’s August 2012 enforcement action against Oracle Corporation, a case considered by many FCPA practitioners to be a stunning result.  [...]  In Oracle, the SEC faulted the US parent corporation for not auditing local distributors hired by its Indian subsidiary, without alleging that the distributors (or anyone else) had made any improper payment to any foreign government official.  Oracle is the latest example of the SEC’s expansive enforcement of the FCPA’s internal controls provision, and it potentially paints a bleak picture—one in which the provision is essentially enforced as a strict liability statute that means whatever the SEC says it means (after the fact).”

Elsewhere, Stuckwisch, the lead author of the article, notes:

“[G]iven the highly subjective nature of the internal controls provisions, companies will continue to feel at the SEC’s mercy once it opens an FCPA investigation, even if no improper payments (or offers of payments) are ever found.”  [...]  In our view, the true lesson of Oracle is not that this particular type of internal control is required, but rather that the internal controls provision is so broad, and the statutory standard of reasonable assurances so subjective, that the SEC has an almost unfettered ability to insist on a settlement, including a civil penalty, at the conclusion of virtually any FCPA investigation. Companies may be willing to enter into such settlements—particularly because, in the absence of a parallel DOJ action, they need not make any factual admissions (due to the “neither admit nor deny” nature of SEC settlements in such circumstances), and the cost of a settlement is often lower than continuing investigative and representative costs. But such settlements can have severe, unintended consequences. Perhaps most significantly, these settlements can lead other companies to misdirect their scarce compliance resources.”

Stuckwisch’s final observation is of course spot-on and generally restates the thesis from my 2010 article “The Facade of FCPA Enforcement.

The U.K. Financial Conduct Authority And Its Focus On Adequate Procedures To Prevent Bribery

Monday, January 27th, 2014

Today’s post is from Robert Amaee (Covington & Burling), the United Kingdom Expert for FCPA Professor.

In the post, Amaee notes that while the U.K. Bribery Act does not have formal books and records and internal controls provisions like the FCPA, the U.K. Financial Conduct Authority (which regulates firms in the U.K. that provide financial products and services to U.K. and overseas customers and is the U.K. listing authority) has brought several recent enforcement actions against regulated entities on grounds similar to typical FCPA books and records and internal controls actions.

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The recent enforcement action taken by the U.K. Financial Conduct Authority (“FCA”) against JLT Specialty Limited (“JLTSL”) is the latest example of the regulator’s drive to penalize companies in the financial sector for failures in their anti-corruption policies and procedures, even in the absence of any evidence of bribery.  There is every indication that the FCA will continue to use its regulatory powers to bring enforcement actions against companies that it deems not to have adequate anti-corruption controls.  In the words of Tracy McDermott, the FCA’s Director of enforcement and financial crime:

“[b]ribery and corruption from overseas payments is an issue we expect all firms to do everything they can to tackle. Firms cannot be complacent about their controls – when we take enforcement action we expect the industry to sit up and take notice.”

This article outlines the FCA’s role in combating financial crime and discusses some pertinent aspects of the JLTSL case as well as previous cases against Willis Limited (“Willis”), and Aon Limited (“Aon”).

The remit and track record of the Securities and Exchange Commission (“SEC”) in enforcing the internal control and accounting provisions of the Foreign Corrupt Practices Act 1977 is well known to readers of FCPA Professor.  Companies that are US issuers have an obligation to keep accurate books, records and accounts, and to devise and maintain sufficient internal accounting controls to ensure such accuracy.  In the UK, the Bribery Act 2010, does not contain equivalent internal control or accounting provisions.

In the case of a company that is suspected of failing to prevent bribery, the Serious Fraud Office (“SFO”) — the lead agency tasked with enforcing the Bribery Act — must assess the adequacy of the company’s procedures (i.e., whether the company has a defence) before deciding to bring Bribery Act charges (see Sec. 7 of the Bribery Act).   In the absence of evidence of bribery, however, the SFO cannot simply take enforcement action under the Bribery Act against a company for failures in its anti-corruption procedures.  In respect of a suspected failure to keep adequate accounting records, UK Prosecutors have in the past resorted to bringing action under the provisions of the Companies Acts of 1985 and 2006.  In 2010, for example, the SFO relied on section 221 of the Companies Act 1985 (now replaced, in substantially the same form, by the sections 386 and 387 of the Companies Act 2006) to sanction BAE for a failure to keep adequate accounting records in relation to payments made to a third party intermediary.

The FCA

The FCA, which took over the majority of the responsibilities of the Financial Services Authority (“FSA”) in April 2013, however, has a statutory objective under the Financial Services & Markets Act 2000 (as amended by the Financial Services Act 2012) to protect and enhance the integrity of the UK financial system.  This market integrity objective includes tackling the risk that the financial sector companies that it regulates may be used for a purpose connected with financial crime, including fraud, money laundering, and bribery and corruption.  In its July 2013 publication, The FCA’s Approach to Advancing its Objectives, the FCA states: “we will take action against firms found to be using corrupt practices, or failing to prevent bribes being paid to win business.”

To achieve this objective, the FCA has imposed, via the FCA Handbook, a number of financial crime requirements on the financial sector companies that it regulates. The key requirements are set out in Principles 1 (integrity), 2 (skill, care and diligence), 3 (management and control) and 11 (relations with regulators) of the FCA’s Principles for Businesses (“PRIN”); and Chapters 3 and 6 of the FCA’s Senior Management Arrangements, Systems and Controls sourcebook (“SYSC”).

In addition, the FCA’s recently published Thematic Review TR13/9 (October 2013) (here) on Anti-Money Laundering and Anti-Bribery and Corruption Systems and Controls, based on an assessment of 22 companies, sets out a case-based analysis of good and bad practice examples for businesses dealing with the risks of bribery and corruption. The October 2013 review followed previous thematic reviews of anti-corruption controls in commercial insurance broking (2010), in investment banking (2012), and AML and sanctions controls in trade finance (2013). The foregoing, together with the FCA’s Financial Crime: A Guide for Firms (here), provide companies with a clear indication of the FCA’s expectations in relation to the implementation and monitoring of anti-corruption systems and controls.

The recent JLTSL enforcement action followed the FCA findings of a breach of Principle 3 of PRIN.  Principle 3 provides that “A firm must take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems.”  This includes implementing checks and controls designed to prevent bribery and corruption overseas.   For a breach of Principle 3 to be established, there is no need for the FCA to show that suspicious payments were made or that an act of bribery has taken place.  In both the Aon and Willis cases investigations did show that suspicious payments were in fact made, while in the JLTSL case there was no evidence of suspicious payments having been made.

JLT Speciality Limited

On December 19, 2013 JLTSL, a wholly owned subsidiary of JLT Group (the largest European broker quoted on the London Stock Exchange), was fined £1,876,000 in respect of breaches of Principle 3 of PRIN.  The FCA found that JLTSL had failed to carry out effective due diligence before entering into relationships with, and making payments to overseas introducers.  The FCA found that the overseas introducers had been paid in excess of £11.7 million, representing some 57% of the total amount received by JLTSL from the business that had been introduced by the overseas introducers.  There was no evidence of bribery or any improper intent on the part of JLTSL, but the FCA concluded that the failings gave rise to an unacceptable risk that the payments made to the overseas introducers could have been used to pay bribes “to persons connected with the insured clients and/or public officials.”

It is worth noting that the FCA brought this action against JLTSL in spite of the fact that it found that JLTSL had (i) implemented policies and procedures aimed at countering the risk of bribery and corruption, including an Employee handbook and a Group Anti-Bribery and Corruption Policy which prohibited JLTSL employees from engaging in any form of bribery, an Operating Procedure Manual which contained more detailed procedures that employees had to follow in order to establish relationships with overseas introducers, and a 7 Alarm Bells policy to assess the bribery and corruption risk associated with entering into a relationship with an overseas introducer; and (ii) engaged an external adviser to review its systems and controls to assess compliance with the provisions of the Bribery Act 2010, concluding that the due diligence procedures in relation to introducer/facilitator relationships appeared comprehensive and broadly in line with the Act.

The FCA took the position that there was a failure to conduct adequate due diligence, and the external advisor had not conducted aholistic” review of JLTSL’s systems and controls.  JLTSL also was found to have failed to adequately assess bribery and corruption risks, only carrying out a risk assessment at the start of each relationship not every time that overseas introducer introduced a new piece of business.  JLTSL also failed to adequately implement its own anti-bribery and corruption policies, which resulted in the risk of JLTSL entering into higher risk relationships with overseas introducers without senior management oversight and approval.

Specifically, JLTSL failed to assess whether or not there were any connections between the overseas introducers and the clients or any public officials.  Although both the OPM and the Alarm Bells highlighted the importance of carrying out due diligence, there was a lack of practical guidance “to employees in order to establish whether the Overseas Introducer was connected to the client it was introducing.”  On reviewing 17 of JLTSL’s relationships with overseas introducers, the FCA found that in the majority of cases in which the overseas introducer was a company, JLTSL had failed to screen one or more directors or beneficial owners.  In one example, a major shareholder of the overseas introducer was known to JLTSL to be a Nigerian public official. The FCA concluded that as a Nigerian public official it was entirely possible even probable that the shareholder of the overseas introducer would have connections to West African public officials.

Willis Limited

On July 21, 2011 the insurance broker Willis was fined £6,895,000 for failings in its anti-corruption systems and controls (breaches were for Principle 3 of PRIN and Rule 3.2.6 R of the SYSC) which “contributed to a weak control environment surrounding the making of payments to Overseas Third Parties.”

The FSA found that overseas third parties had received commissions of approximately £27 million, representing some 45% of the brokerage earned by Willis from the business that had been introduced by the overseas third parties.  The FSA’s findings were supported by Willis’ own internal investigation which identified a number of suspicious payments made to overseas third parties, two of which formed the subject of suspicious activity reports that Willis submitted to the Serious Organised Crime Agency (“SOCA”) (now replaced by the National Crime Agency (“NCA”)).

The FSA did not find any evidence to suggest that Willis’s conduct was either deliberate or reckless.  It acknowledged that Willis had introduced improved anti-corruption policies and guidance in 2008, reviewed how its new policies were operating in practice and further revised its guidance in 2009.  The FSA, however, formed the view that Willis had failed to ensure its policies were adequately implemented, that failures by staff to adhere to the new policies were identified in a timely manner, or that the Board was provided with sufficient relevant management information regarding the performance of the new policies.

Specifically, the FSA concluded, inter alia, that Willis had (i) failed to ensure that it had established and recorded an adequate commercial rationale for using overseas third parties; (ii) failed to provide formal training or adequate guidance for staff who only recorded brief descriptions of the reason for making commission payments; and (iii) conducted inadequate due diligence on overseas third parties to establish, for example, any connections with the insured, insurer or public officials.

Aon Limited

On January 6, 2009 Aon was fined £5,250,000 for failing to “take reasonable care to organise and control its affairs responsibly and effectively, with adequate risk management systems” (breach of Principle 3 of PRIN).  In particular, the FSA highlighted Aon’s failure to establish and maintain effective systems and controls for countering the risks of bribery and corruption associated with its use of overseas Third parties in high risk jurisdictions.

As in the Willis case, the FSA found that the failings led to a weak control environment that gave rise to an unacceptable risk that Aon could become involved in potentially corrupt payments to win or retain business. The FSA highlighted 66 suspicious payments totalling in excess of US$7 million that were paid to nine overseas third parties.  Aon’s own internal investigation identified a number of suspicious payments that it later reported to SOCA.

The FSA concluded, inter alia, that (i) procedures lacked adequate levels of due diligence either before commencing relationships with overseas third parties or before payments were made; (ii) Aon failed to monitor its relationships with overseas third parties in respect of specific bribery risks; (iii) Aon did not provide its staff with sufficient training and guidance on bribery and corruption matters; and (iv) Aon failed to ensure that the committees it appointed to oversee bribery and corruption risks received relevant management information or routinely assessed whether bribery and corruption risks were managed effectively.  Aon also failed to implement effective internal systems and controls to mitigate those risks.  Margaret Cole, FSA director of enforcement at the time, described the case as sending a clear message that it is completely unacceptable for firms to conduct business overseas without having in place appropriate anti-bribery and corruption systems and controls”.

Adequate Procedures

The FSA’s 2009 action against Aon marked the start of period of concerted effort by the regulator to take action against companies deemed to have inadequate policies and controls, in particular in respect of the risks associated with making payments to overseas third parties.  The Aon action was followed in 2011 by the FSA’s action against Willis for failings in its anti- corruption policies and controls.  In bringing its recent action against JLTSL, the FCA has clearly signalled its intention to continue the focus on companies’ internal anti-corruption control environment. In addition, a number of separate enforcement actions have confirmed that the FCA remains focused on ensuring companies also maintain adequate anti-money laundering policies and controls.  See here, here, here and here.

It is clear, in particular from the JLTSL case, that the FCA will not be impressed by the volume of policies and controls that have been drafted or the fact that an external vendor has given the anti-corruption program the all clear.  The FCA is focused on the effectiveness of the policies and controls and how they have been implemented, and how they are being monitored in practice.  There is little doubt that when the SFO starts to bring enforcement actions against companies under the failure to prevent bribery offence contained in section 7 of the Bribery Act, its assessment of the adequacy of a company’s policies and controls will similarly focus on their real life implementation, and not on the elegance of the prose, or the sign off of external vendors.