Richard L. Cassin Publisher and Editor

Andy Spalding Senior Editor

Jessica Tillipman Senior Editor

Elizabeth K. Spahn Editor Emeritus

Cody Worthington Contributing Editor

Julie DiMauro Contributing Editor

Thomas Fox Contributing Editor

Marc Alain Bohn Contributing Editor

Bill Waite Contributing Editor

Shruti J. Shah Contributing Editor

Russell A. Stamets Contributing Editor

Richard Bistrong Contributing Editor 

Eric Carlson Contributing Editor

Bill Steinman Contributing Editor

Aarti Maharaj Contributing Editor

FCPA Blog Daily News


Sir Allen And The FCPA

Since hearing about Allen Stanford's cozy relationships with certain Caribbean leaders, we've wondered if he'll eventually face criminal charges under the Foreign Corrupt Practices Act. Neither bribery nor the FCPA have been mentioned yet in connection with Stanford. But here's what's been reported, so far, in the New York Times and elsewhere.

Because of the SEC's suspicions, the FBI helped gather evidence about Stanford's business practices. The investigation led to the SEC's February 16 civil complaint. It alleged that Stanford's representations about his bank's certificates of deposit were false and misleading. It wasn't true, the SEC charged, that the funds were managed by at least 20 professionals and invested in safe, liquid assets. The truth, instead, was that the money went wherever Stanford himself and a couple of close associates directed, including into risky real estate and private equity deals. And at least $8 billion can't be accounted for.

Stanford, 58, is a U.S. citizen (from Texas) and therefore an FCPA "domestic concern." He has to comply with the antibribery provisions. (Before the recent headlines, we always thought he was British or maybe South African; he calls himself "Sir Allen," sports a small mustache, wears crested blazers, and is crazy about international cricket.)

About Stanford's cozy relationships with foreign leaders -- the tightest, it appears, was with the rulers of Antigua, population 85,000. He resettled his offshore bank there after it was booted off neighboring Montserrat in 1996 for unspecified reasons. His closeness to Antigua's former prime minister, Lester Bird, led to him being "knighted" by the tiny country's government a few years ago. On the Stanford website, he signs the chairman's letter as "Sir Allen Stanford." A note on the homepage says, "Stanford Financial Group and other Stanford entities are currently controlled and managed by a receiver."

In the late 1990s, the New York Times said, Prime Minister Bird appointed Stanford to Antigua's banking advisory board. The appointment created a blatant conflict of interest. The advisory board regulated the banks on Antigua, including those owned by Stanford. What's more, the Times said, "The [advisory board] project was paid for by the Antiguan government by money either lent or granted by Mr. Stanford."

Could those loans or grants have violated the FCPA? Not likely. A payment to a foreign government -- even a payment intended to influence decisions in favor of the donor -- cannot violate the FCPA. An FCPA antibribery offense requires a corrupt payment to a foreign official -- that is, to a human being. See §§ 78dd-1(a), 78dd-2(a). See also the DOJ's FCPA Opinion Procedure Release No. 97-02 (November 5, 1997) discussed in our post here. The DOJ said, because the "requestor's donation would go directly to a government entity -- and not to any foreign government official -- the provisions of the FCPA do not appear to apply to this prospective transaction."

In its civil complaint, the SEC alleged no facts about overseas corruption; the complaint focused on misrepresentations related to the certificates of deposit and unregistered investment-adviser activity by Stanford's companies. And we've seen no reports of credible evidence about illegal payments to foreign officials by Stanford or on his behalf. That doesn't mean evidence won't surface, however. In a couple of other recent cases, when the FBI was called in to investigate foreign business practices unrelated to FCPA concerns, it also discovered evidence of antibribery violations.

That's apparently what happened, for example, to Shu Quan-Sheng, the Virginia-based rocket scientist. The naturalized U.S. citizen sold defense-related goods and services to China without first obtaining U.S. export licenses or State Department approvals. During its export-related investigation, the FBI learned Shu was bribing Chinese government officials to buy his products. Shu pleaded guilty in November 2008 to violating the Arms Export Control Act and the FCPA. And in September last year, four U.S. citizens and their Philadelphia-based company, Nexus Technologies, were charged under the Foreign Corrupt Practices Act with bribing government officials in Vietnam. The FBI may have been investigating the defendants' alleged sales of sensitive equipment to Vietnamese government agencies when it discovered the potential FCPA offenses.

Stanford hasn't been charged by U.S. authorities with any criminal acts. The SEC's complaint is a civil enforcement action and, as mentioned, is limited to securities law issues. The New York Times pointed out, though, that he and his organization were big donors to U.S. politicians and courted them with favors and perks. "Mr. Stanford," the Times said, "also wooed lawmakers and their staff with plane rides and 'fact-finding' trips to vacation destinations. Many were paid for by the Inter-American Economic Council, a nonprofit organization that he supported."

Similar donations, gifts and favors to foreign officials might violate the Foreign Corrupt Practices Act. The law prohibits giving or promising to give, directly or indirectly, anything of value -- including cash, gifts and perks -- to a foreign official for the purpose of obtaining or retaining business. There are three narrow exceptions in the FCPA -- for facilitating payments, promotional expenses, and payments legal under the written laws of the host country. The Justice Department and the courts, however, view the FCPA's "obtaining or retaining business" prohibitions expansively, and take a narrow view of the limited exceptions.

So is this an FCPA story? Not yet. But it's one to watch.

The SEC's Feb. 17, 2009 press release is here. With the press release are links to the SEC's Litigation Release No. 20901 (February 17, 2009) in Securities and Exchange Commission v. Stanford International Bank, et al., Case No. 3-09CV0298-L (N.D.TX.) (here), the SEC's civil complaint (here), the SEC's memorandum of law (here), and information for Stanford customers concerning the federal court's order freezing assets and appointing a receiver over property of Stanford and his companies (here).


The Friday Report

Former Congressman William J. Jefferson says the cash found in his freezer four years ago proves he didn't violate the Foreign Corrupt Practices Act. Yesterday Jefferson filed a petition for certiorari to the Supreme Court, asking for review of the Fourth Circuit's refusal to dismiss most of the corruption-related charges against him. But he's not asking for dismissal of the two Foreign Corrupt Practices Act counts.

Jefferson's case is best known for allegations that in August 2005, he hid $90,000 in the freezer at his Washington home. The New Orleans Times-Picayune reports here that Jefferson's lawyers say the cash in the freezer is not alleged to be a bribe to Jefferson, but rather evidence of a violation of the Foreign Corrupt Practices Act. In an apparent preview of his FCPA defense, his lawyers said the money "was transmitted to Mr. Jefferson by the government's cooperating witness during the course of the FBI's sting operation so that he would pass it to a foreign government official," the then vice president of Nigeria. "But Mr. Jefferson did not do that. Instead, the marked funds were recovered in his home."

Jefferson says that except for the two FCPA charges, the grand jury's 16-count indictment depended on materials protected by the absolute privilege in the Constitution’s Speech or Debate Clause (Article I, Section 6, Clause 1). The evidence concerning the cash in the freezer, he acknowledges, wasn't protected by the privilege. A federal grand jury indicted him in June 2007 for violating the antibribery provisions of the Foreign Corrupt Practices Act, and also for soliciting and accepting bribes, wire fraud, money laundering and obstruction of justice. He faces a maximum of 235 years in prison if convicted on all counts. His trial is scheduled to start on May 26. Last year he lost an election for a 10th term in Congress from Louisiana.

The always-excellent scotusblog has a full report. It also has links to the Supreme Court petition in Jefferson v. U.S. here and the Fourth Circuit Court's decision from November 2008 rejecting Jefferson’s motion to dismiss here.

* * *

The murder of Russian journalist Anna Politkovskaya in 2006 that we talked about earlier this week (here) remains officially unsolved. Yesterday a jury in Moscow acquitted three men charged in her shooting. The LA Times has the story here. On trial were two Chechen brothers and a former Russian police officer. Another man accused in the murder and being tried separately was also released. He's a member of Russia's FSB, the domestic successor of the KBG.

The LA Times said of the verdict, "Critics say it was no accident that the search for the killers was ultimately fruitless. Even Moskalenko, the lawyer representing the Politkovskaya family, stopped just short of urging jurors to acquit the suspects, throwing blame instead on corrupt authorities."

Another journalist from Politkovskaya's paper, the Novaya Gazeta, was shot and killed in Moscow last month. The Washington Times says four journalists from Novaya Gazeta have been killed in the past eight years. "Since 2000," it says, "16 journalists have died in Russia under suspicious circumstances -- and scores of others have been threatened, intimidated and assaulted."

* * *

Russia dropped to 147th on the 2008 Corruption Perception Index, tied with Bangladesh, Kenya and Syria. On the 2009 Index of Economic Freedom, it ranks 146th. "Corruption remains all-encompassing," according to the Heritage Foundation report, "both in the number of instances and in the size of bribes sought. Manifestations include misuse of budgetary resources, theft of government property, kickbacks in the procurement process, extortion, and official collusion in criminal acts. Customs officials are extremely inconsistent in their application of the law."

In the World Bank's 2009 Doing Business project, Russia ranks near the bottom -- 120th, down eight places from last year. The amount of red tape choking the system is astounding. Building a warehouse in Russia requires 54 procedures and takes an average of 704 days. The OECD-wide averages, by comparison, are about 15 procedures and 161 days.


Waters So Deep

There are things we know we don't know, said the former boss at the Pentagon. But then again, he added, there are things we don't know we don't know. That distinction came to mind as we read the latest email from a correspondent who always holds us to a high standard. He said this:

"I, and other readers of the blog, could benefit from a discussion of what distinguishes a criminal violation of the FCPA's antibribery provisions brought by the DOJ from a civil violation of the antibribery provisions brought by the SEC. Of course, prosecutorial discretion is relevant, but I do not see in the statute any distinction between the two (i.e. no additional elements necessary for a criminal charge vs. a civil charge). Compare this to the books and records and internal control provisions which state at 15 USC 78m(b)(4) that 'no criminal liability shall be imposed' for violation of the books and records and internal control provisions except for 'knowing circumvention' or 'knowingly failing' to implement a system of internal controls or 'knowing falsification' of books and records."

Our correspondent said he'd been thinking about this since the SEC charged Halliburton Company and KBR Inc. with civil antibribery violations, while the DOJ charged only Kellogg Brown and Root LLC with criminal violations, even though the SEC's complaint sets forth all the "criminal" elements of an antibribery violation.

So what's the story?

Well, we're stumped. As we told our correspondent, we've read the U.S. Attorney’s Manual 9-28.000 / Principles of Federal Prosecution of Business Organizations (here). But we still don't know how decisions get made by the folks at the DOJ and SEC about who to charge with criminal or civil antibribery offenses. To which our correspondent replied, "From a policy standpoint, you hate to think that whether behavior x is charged civilly or criminally depends on the whim of a prosecutor and not proving additional elements needed to charge a crime."

So here's an invitation to all readers. Tell us, if you know, how decisions are made to charge companies or individuals under the Foreign Corrupt Practices Act with violations of the antibribery provisions either criminally or civilly. Is everything left to prosecutorial discretion? Are there published guidelines? How about unpublished guidelines? Secret handshakes?

To promote this discussion, we've adopted our own Stimulus Plan. The best response -- make that the best several responses -- will earn a copy of Bribery Abroad.

Download the DOJ's criminal information against Kellogg Brown and Root LLC here.

Download the SEC's February 11, 2009 civil complaint against KBR Inc. and Halliburton Company here.


This Talk Is Not Cheap

Public corruption doesn't happen in public. It needs dark places to flourish. That's why the press can play a decisive role in fighting sleaze--just by shining light on it. So the announcement this week by the Chicago Tribune that it's going all out to fight graft is welcome news. After all, one former Illinois governor, George Ryan, is doing time for corruption and another former governor, the freshly impeached Rod Blagojevich, faces a trial for trying to sell a U.S Senate seat.

In some countries, journalists on the corruption beat are putting their lives on the line. On Monday, a Chinese blogger who writes about corruption was stabbed in the stomach at a Beijing book store after giving a reading there. Xu Lai, who blogs under the pseudonym Qian Liexian, was apparently dragged into the store's bathroom by two men who stabbed him and fled. Xu Lai should recover from his injuries; whether he'll go on writing about corruption in China isn't known. Even if he does, however, other bloggers and journalists there are likely to think twice before they post stories about crooked government officials.

Corruption in Russia is a deadly topic for journalists. Investigative reporter Anna Politkovskaya was shot in a lift in her apartment building two years ago. She'd been threatened many times about her coverage of Chechnya and public corruption throughout the Russian government. Her murder, still unsolved, appeared to be a contract killing. She was 48 and a mother of two and often spoke of the risks of her job. In 2004, the editor of Forbes' Russian edition, Paul Klebnikov, was shot and killed in Moscow. And in 1995, a leading Russian journalist, Vladislav Listyev, was also shot dead in Moscow.

Kenya had a high-profile murder in January. Francis Nyaruri, who wrote about police corruption under the name of Mong'are Mokua, was beheaded and dumped in a forest. He was the second journalist killed in Kenya in the past year and had been threatened just before his disappearance.

It would be hard to find a country that's been more dangerous for journalists than the Philippines. In 2007, five were murdered and two others wounded. A radio host / reporter from Davao City, Ferdinand Lintuan, was killed on Christmas Eve 2007 after hosting his local radio show. He was shot by two men riding a motorcycle. Lintuan often accused local politicians of corrupt dealings, particularly involving the military.

So the Chicago Tribune's "campaign against the Illinois culture of political sleaze" is good news. Not only because it'll shine some light on the dark places where corruption grows. But also because it's a reminder of our free press in America that, at least for now, can still raise its voice without fear of violence.

Links to stories about Illinois are here, China here, Kenya here, Russia here, and the Philippines here.


Protecting The Privilege

Senator Arlen Specter, the ranking Republican member of the Senate Judiciary Committee, has introduced a bill "to provide appropriate protection to attorney-client privileged communications and attorney work product." S.445 is co-sponsored by Senators Carper (D-DE), Cochran (R-MS), Kerry (D-MA), Landrieu (D-LA) and McCaskill (D-MO). The bill's Thomas page at the Library of Congress is here.

We're waiting for the text. But in a post last week, the White Collar Crime Prof Blog (here) said the bill:

Prohibits federal prosecutors and investigators across the executive branch from requesting or conditioning charging decisions on an organization’s reasonable assertion of attorney-client privilege or decision to pay attorneys fees for an employee. This bill emphasizes that the right to counsel is chilled unless the confidential communications between attorneys and their clients are protected by from compelled disclosure. The Department of Justice has changed its rules three times in the past few years, and attorneys and clients need clarity and an unchanging rule.

This is the third try for legislation to protect the attorney-client privilege, following unsuccessful attempts in 2007 (S. 186) and 2008 (S. 3217). Last year's Senate bill contained these findings:
(1) Justice is served when all parties to litigation are represented by experienced diligent counsel.

(2) Protecting attorney-client privileged communications from compelled disclosure fosters voluntary compliance with the law.

(3) To serve the purpose of the attorney-client privilege, attorneys and clients must have a degree of confidence that they will not be required to disclose privileged communications.

(4) The ability of an organization to have effective compliance programs and to conduct comprehensive internal investigations is enhanced when there is clarity and consistency regarding the attorney-client privilege.

(5) Prosecutors, investigators, enforcement officials, and other officers or employees of Government agencies have been able to, and can continue to, conduct their work while respecting attorney-client and work product protections and the rights of individuals, including seeking and discovering facts crucial to the investigation and prosecution of organizations.

(6) Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned demands by the Attorney General for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See section 1968(c)(2) of title 18, United States Code.

(7) Despite the existence of numerous investigative tools that do not impact the attorney-client relationship, the Department of Justice and other agencies have increasingly created and implemented policies that tend to undermine the adversarial system of justice, such as encouraging organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions.

(8) An indictment can have devastating consequences on an organization, potentially eliminating the ability of the organization to survive post-indictment or to dispute the charges against it at trial.

(9) Waiver demands and related policies of Government agencies are encroaching on the constitutional rights and other legal protections of employees.

(10) As recognized throughout the common law, and specifically in the crime-fraud exception, the attorney-client privilege, work product doctrine, and payment of counsel fees cannot and shall not be used as devices to conceal wrongdoing or to cloak advice on evading the law.

(b) Purpose- It is the purpose of this Act to place on each agency clear and practical limits designed to preserve the attorney-client privilege and work product protections available to an organization and preserve the constitutional rights and other legal protections available to employees of such an organization.

The 2008 bill was supported by 33 former United States Attorneys. A letter they sent to Senator Patrick Leahy (D.,VT), chair of the Judiciary Committee, said, "The widespread practice of requiring waiver has led to the erosion not only of the privilege itself, but also of the constitutional rights of the employees who are caught up, often tangentially, in business investigations."

Since then, the DOJ (while still under the prior administration) adopted new internal guidance for federal prosecutors covering the attorney-client and attorney work-product privileges. The U.S. Attorney’s Manual at chapter 9-28.710 (here) clarifies that what the government really needs from companies is not a waiver of the privileges but disclosure of relevant facts about their misconduct. But there's no assurance U.S. Attorneys in the field will follow the new guidance, and it's not binding on other government agencies that have adopted the DOJ's practice of requiring waivers.

View our prior posts on attorney-client privilege here.


Vietnam In The News

Last month we reported the conviction in a Tokyo court of three Japanes executives and their company on charges of bribing a senior Vietnamese government official. The illegal payments of $820,000 were intended to secure contracts for road projects backed by Japanese aid money. In court, the recipient of the bribes was identified as Huynh Ngoc Sy, an official in Ho Chi Minh City.

Last week, the Vietnam News Agency reported the arrest of the same Mr. Sy, 56, for "abuse of power." He was the former deputy director of Ho Chi Minh City’s Department of Transport, and the former director of the East-West Highway and City Water Environment Improvement projects. After his arrest, investigators from the Ministry of Public Security’s Anti-corruption Department searched his house. Police also arrested Sy’s deputy, Le Qua, and searched his house.

In November last year, Sy was suspended from his job and banned from traveling outside Vietnam. That action came after the country's Prime Minister, Nguyen Tan Dung, directed his government to "co-operate with Japanese agencies investigating allegations that officials of a Japanese firm had bribed Vietnamese officials to get project contracts."

Vietnam's biggest aid provider is Japan. But the bribery scandal caused such a flap in Japan that it suspended aid, including low-interest loans for infrastructure projects. Vietnam's state television reported last week that following Sy's arrest, Vietnam's prime minister asked Japan to resume the loan program.

Japan has a low incidence of domestic public corruption -- it ranked 18th on the 2008 Corruption Perception Index, tied with Belgium and the United States. But until this case, it hadn't prosecuted any overseas bribery cases. In June 2008, the OECD criticized Japan for its "lagging" enforcement. We speculated that this case went to court only because it involved the misuse of Japanese taxpayer funds in the foreign aid program.

Vietnam is ranked 121st on the 2008 Corruption Perception Index, tied with Nepal, Nigeria, Sao Tome and Principe, and Togo. Despite Vietnam's corruption-prone reputation, it wasn't named in any Foreign Corrupt Practices Act enforcement actions until recently. In September 2008, U.S. citizens Nam Nguyen, Joseph Lukas, Kim Nguyen, and An Nguyen, along with their Philadelphia-based company, Nexus Technologies, were charged under the Foreign Corrupt Practices Act with bribing government officials in Vietnam. The alleged bribes were intended to secure contracts to supply high-tech items -- including third-party underwater mapping and bomb containment equipment, helicopter parts, chemical detectors, satellite communication parts and air tracking systems. Their trial is pending.

In December 2008, Siemens' guilty plea to FCPA books and records violations involved Vietnam. The Securities and Exchange Commission's complaint (download the pdf here) said Siemens' medical division "paid $183,000 in early 2005 and $200,000 in early 2006 in connection with the sale of approximately $6 million of medical devices on two projects involving the Vietnamese Ministry of Health." And in 2002, the complaint said, Siemens' communications division paid about $140,000 in bribes as "part of a much larger bribery scheme concocted by high-level managers at Siemens regional company in Vietnam, SLV, to pay bribes to government officials at Vietel and the Vietnamese Ministry of Defense in order to acquire Phase I of the Vietel GSM tender."


Settlement In ITT China Payments Case

Global conglomerate ITT Corporation settled civil Foreign Corrupt Practices Act charges with the Securities and Exchange Commission on Wednesday. The SEC filed a settled civil injunctive action in the U.S. District Court for the District of Columbia against New York-based ITT. The complaint alleged violations of the FCPA's books and records and internal controls provisions, Section 13(b)(2)(A) and (B) of the Securities Exchange Act of 1934.

ITT agreed to disgorge $1,041,112, together with prejudgment interest of $387,538.11, and pay a $250,000 civil penalty. The SEC said ITT self-reported the violations, cooperated with the SEC's investigation, and instituted remedial measures.

The violations resulted from payments to Chinese government officials by ITT's wholly-owned Chinese subsidiary, Nanjing Goulds Pumps Ltd. (NGP). From 2001 through 2005, NGP paid about $200,000 in bribes to employees of Chinese state-owned enterprises. ITT generated over $4 million in sales through the bribes and made profits of more than $1 million.

NGP, part of ITT's Fluid Technology division, bribed employees of Chinese state-owned enterprises to sell water pumps for large infrastructure projects. The payments were disguised as increased commissions in NGP's books and records. The improper NGP entries were consolidated and included in ITT's financial statements contained in its filings with the SEC for the company's fiscal years 2001 through 2005.

The SEC's complaint said ITT did not make or keep books, records, and accounts which, in reasonable detail, accurately and fairly reflected the illicit payments by NGP employees and the related disposition of its assets. ITT also failed to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions were executed in accordance with management's general or specific authorization; (ii) transactions were recorded as necessary to maintain accountability for its assets; and (iii) access to its assets was permitted only in accordance with management's general or specific authorization.

ITT discovered the illegal payments in December 2005. The company had a corporate compliance ombudsman program in place designed to receive and respond to anonymous complaints of alleged wrongdoing throughout the company. The ombudsman received an anonymous complaint from NGP employees alleging illegal payments to Chinese government officials by NGP employees.

ITT is one of America's most famous conglomerates. From 1960 to 1977, under boss Harold Geneen, it acquired more than 350 companies, at times owning such brands as Sheraton hotels, Avis Rent-a-Car, Hartford Insurance and Continental Baking, the maker of Wonder Bread. Rand Araskog was CEO from 1979 to 1995. He restructured the company into just a few business segments. Today it concentrates on water and fluids management, global defense and security, and motion and flow control. It has about 40,000 employees in 55 countries and generates nearly $12 billion in annual revenue.

ITT Corporation trades on the New York Stock Exchange under the symbol ITT.

View the SEC's Litigation Release No. 20896 (February 11, 2009) and Accounting and Auditing Enforcement Release No. 2934 (February 11, 2009) in Securities and Exchange Commission v. ITT Corporation, Civil Action No. 1:09-cv-00272 (RJL) (D.D.C. filed Feb. 11, 2009) here.

Download the SEC's February 11, 2009 civil complaint against ITT Corporation here.

Listen to the podcast here.


China Deals Trigger Investigation

In an SEC filing this week, Morgan Stanley disclosed (here) that it's investigating possible Foreign Corrupt Practices Act violations in China. The bank said in a short statement that "it has recently uncovered actions initiated by an employee based in China in an overseas real estate subsidiary that appear to have violated the Foreign Corrupt Practices Act. Morgan Stanley terminated the employee, reported the activity to appropriate authorities and is continuing to investigate the matter."

There are several reports (here, here and here) that in December, the China-based managing director of Morgan Stanley Real Estate in Shanghai, Garth Peterson, left the bank. And Morgan Stanley's global head of property investing, Sonny Kalsi, has also been placed on administrative leave. Some of Morgan Stanley's property projects involved investments with government-linked Chinese enterprises. Several high-ranking Chinese officials from Shanghai have been arrested in recent years for corruption in connection with deals in the property market.

On Wednesday, Morgan Stanley's chief executive John Mack and seven other bank CEOs took thier lumps from the House Financial Services Committee over the financial crisis. During his testimony, Mack said, "We are sorry for it. I am especially sorry for what's happened to shareholders and to all Americans. Clearly, as an industry, we have accountability and we're taking responsibility. I'll take responsibility for my firm."

Morgan Stanley trades on the New York Stock Exchange under the symbol MS.

Listen to the podcast here.


KBR and Halliburton Resolve Charges

Houston-based global engineering firm Kellogg Brown & Root LLC (KBR) pleaded guilty on Wednesday to a five-count criminal information, with one conspiracy count and four substantive counts of violating the Foreign Corrupt Practices Act. KBR agreed to pay a $402 million fine, the second largest criminal fine for an FCPA violation, following Siemens' $450 million penalty in December 2008.

KBR admitted paying Nigerian officials at least $182 million in bribes for engineering, procurement and construction contracts awarded between 1995 and 2004 to build liquefied natural gas facilities on Bonny Island, Nigeria. The contracts to an international joint venture led by KBR were worth more than $6 billion. KBR's former CEO, Albert "Jack" Stanley, pleaded guilty in September 2008 to conspiring to violate the FCPA. His sentencing is scheduled for May 6th.

Also on Wednesday, KBR’s parent company, KBR Inc., and its former parent company, Halliburton Company, settled civil FCPA charges with the Securities and Exchange Commission, agreeing to be jointly liable to pay $177 million in disgorgement. The SEC's complaint alleges that Halliburton's internal controls failed to detect or prevent the bribery, and that its records were falsified to cover up the illegal payments.

The SEC's final order (i) permanently enjoins KBR from violating the anti-bribery and records falsification provisions in Sections 30A, 13(b)(5) and Rule 13b2-1 of the Securities Exchange Act of 1934, and from aiding and abetting violations of the record-keeping and internal control provisions in Sections 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act; (ii) permanently enjoins Halliburton from violating the record-keeping and internal control provisions of the Exchange Act; (iii) orders the companies to disgorge $177 million in profits derived from their FCPA violations; (iv) imposes an independent monitor for KBR for three years to review its FCPA compliance program, and (v) imposes an independent consultant to review Halliburton's FCPA-related policies and procedures.

The DOJ said it had help in its investigations from authorities in France, Italy, Switzerland and the United Kingdom.

Jack Stanley was a senior vice president of Dresser Industries, Inc. when it merged into Halliburton in September 1998. Dresser's wholly-owned construction subsidiary, Kellogg, was combined with Halliburton's construction subsidiary, Brown & Root, Inc., to form KBR. In November 2006, Halliburton spun KBR off and it became a separate publicly-traded company. Under their agreement for KBR's spin off, Halliburton is obligated to pay most of KBR's fines and other penalties for the FCPA violations.

The SEC's complaint alleges that after the Dresser acquisition, Halliburton's due diligence didn't detect any bribe payments and failed "to devise and maintain adequate internal controls to govern the use of foreign sales agents and failed to maintain and enforce the internal controls it had." Former Vice President Dick Cheney was Halliburton's chief executive from 1995 to 2000. He has denied any wrongdoing.

Download the DOJ's February 11, 2009 release here.

Download KBR's February 11, 2009 criminal plea agreement with the DOJ here.

View the SEC's Litigation Release No. 20897 (February 11, 2009) and Accounting and Auditing Enforcement Release No. 2935 (February 11, 2009) in Securities and Exchange Commission v. Halliburton Company, 4:09-CV-399, S.D. Tex. (Houston) here.

Download the SEC's February 11, 2009 civil complaint against KBR and Halliburton here.

View prior posts about Halliburton, KBR and Jack Stanley here.

Listen to the podcast here.


I'd Want My Conscience

It may seem to Liberians as though everyone in their civil service is corrupt, but it's not true. There's at least one honest man. He's Richard Karyea, a former customs officer at the Roberts International Airport. Two years ago he refused a bribe from a drug smuggler worth more than 1,300 times his $15 monthly salary.

He was offered a $20,000 bribe by the owner of a DVD after finding cocaine hidden inside. Instead of looking the other way, he turned the man over to the police. For his trouble, Karyea was fired by the customs department; the drug smuggler was allowed to board another plane that day for Nigeria.

But there's a happy ending. In January, Liberia's president, Ellen Johnson Sirleaf, who has vowed to fight public corruption, pinned a medal on Karyea. At a ceremony in Monrovia (pictured above), she named him the Civil Servant of the Year. He won a $1,000 cash award and landed a new job -- Deputy Chief Examiner at the Ministry of Finance. And he's become a national hero. Comments to the Liberia Post said some people might consider him stupid for turning down the huge bribe, but he actually deserves to be a minister in the government. "You are a mentor for all [civil servants] to learn from. Bravo."

Liberians needed some good news. Last year, their country ranked 138th on Transparency International's Corruption Perception Index, tied with Paraguay and Tonga. That sounds awful, but its better than 2007, when the country ranked 150th on the CPI, tied with Azerbaijan, Belarus, the Congo, Cote d'Ivoire, Kazakhstan, Kenya, Kyrgyzstan, Sierra Leone, Tajikistan and Zimbabwe. That's a tough neighborhood no one would be sorry to leave behind.

At Karyea's award ceremony, President Sirleaf said he demonstrated "honesty and integrity in support of the Government’s determination to fight corruption in all sectors." For his part, the new hero told the BBC, "It wasn't difficult to turn down the money. If it took me 50 years to earn that money, I'd want my conscience. I will always want my conscience."

Listen to the podcast here.


KBR's Twisted Web

We've been looking over the criminal information charging Kellogg, Brown & Root LLC with violating the Foreign Corrupt Practices Act. There's one conspiracy and four substantive counts. There's also a related document called the Joint Motion to Waive Presentence Investigation. That's where the Justice Department talks about the potential criminal fine range and agrees with KBR on a final penalty (subject to court approval) of $402 million.

(Halliburton, KBR's former parent, said two weeks ago that the Securities and Exchange Commission has also agreed, contingent on the DOJ's settlement, to a separate disgorgement payment to the SEC of $177 million.)

The criminal information describes KBR's attempts to shield from the FCPA its corrupt payments to Nigerian officials. Its TSKJ joint venture, equally owned with Technip, SA of France, Snamprogetti Netherlands B.V., a subsidiary of Saipem SpA of Italy, and JGC of Japan, "operated through three Portuguese special purpose corporations based in Madeira, Portugal." Madeira Company 3, as the information calls it, was used to enter into so-called consulting agreements with agents, who in turn passed bribes to Nigerian officials.

KBR and its top brass tried to hide behind Madeira Company 3. Ownership was held indirectly through M.W. Kellogg Ltd., a U.K. company. The criminal information says the ownership structure was "part of KBR's intentional efforts to insulate itself from FCPA liability for bribery of Nigerian government officials through the Joint Venture's agents." And the information continues:

The boards of managers of Madeira Company 1 and Madeira Company 2 included U.S. citizens . . . but KBR avoided placing U.S. citizens on the board of managers of Madeira Company 3 as a further part of KBR's intentional effort to insulate itself from FCPA liability.
The Foreign Corrupt Practices Act prohibits both direct and indirect corrupt payments to foreign officials. Indirect payments typically pass through the hands of an overseas partner or agent, then end up with the foreign official for an unlawful purpose. That's how most violations happen. And yet, executives keep trying to outsmart the FCPA. They create convoluted ownership structures and payment patterns that they think will somehow insulate them and their company from FCPA liability. The results, as the KBR case shows, are usually disastrous.

The FCPA is smart. It looks not at how payments to foreign officials are made, but why. It looks, in other words, at the intent. If a payment was meant to corruptly obtain and retain business, then the payment violates the FCPA, no matter how many Madeira-like companies it passed through, and no matter how many agents or other middlemen were involved.

The DOJ's plain-English explanation of the FCPA's anti-bribery provisions talks about warning signs, called "red flags." They should tip off anyone about impending compliance dangers. Red flags include unusual payment patterns or other strange arrangements, and a lack of transparency. Red flags would include all of the devices KBR employed. So the lesson? Whenever company structures, payment arrangements, and management compositions have no obvious operational or economic justification, there must be something wrong. That's when everyone involved should be asking hard questions, such as whether the real intent is to do legitimate business or to violate the FCPA and other laws.

Download a copy of KBR's criminal information here.

Download a copy of the DOJ / KBR Joint Motion to Waive Presentence Investigation here.

Listen to the podcast here.


KBR Nears Final Plea Deal

A criminal information filed in federal court in Houston on Friday shows that Kellogg, Brown & Root LLC, the Houston-based global engineering and construction firm that was once part of Halliburton, will plead guilty to violating the Foreign Corrupt Practices Act. KBR may appear in court next week. The information refers to a plea agreement that has not yet been released by the Justice Department. The Houston Chronicle and the AP have reports.

The criminal information, according to the reports, indicates that the government has agreed to a $402 million fine, payable in installments, beginning with a $52 million payment five days after sentencing, and seven $50 million installments, each due on the first day of each quarter beginning April 1. Under federal sentencing guidelines, the fine range was between $376.8 million and $753.6 million.

Two weeks ago, KBR's former parent, Halliburton, said a settlement of Foreign Corrupt Practices Act enforcement actions with the Justice Department and the Securities and Exchange Commission was waiting for the DOJ's final approval. It said it had reserved $559 million for the proposed settlements. Halliburton is obligated under indemnity agreements to pay fines and penalties on behalf of KBR. It said in the release that it would "pay $382 million [to the DOJ] on behalf of KBR in eight installments over the next two years. Pursuant to the terms of the prospective settlement with the SEC, Halliburton would agree to be jointly and severally liable with KBR for and, as a result of the indemnity, to pay to the SEC $177 million in disgorgement."

In September 2008, Albert “Jack” Stanley, 65, a former chairman and CEO of KBR, pleaded guilty to a two-count criminal information charging him with conspiracy to violate the Foreign Corrupt Practices Act and conspiracy to commit mail and wire fraud. His final sentencing is set for May this year. Under his plea agreement, he faces up to seven years in prison and a restitution payment of $10.8 million.

From 1995 to 2004, Stanley helped a joint venture that included KBR and its predecessors funnel $182 million in bribes to government officials in Nigeria. The bribes were paid in exchange for contracts worth $6 billion to build liquefied natural gas facilities there. KBR's 2007 Annual Report (its most recent) described a joint venture called TSKJ "formed to design and construct large-scale projects in Nigeria. TSKJ's members are Technip, SA of France, Snamprogetti Netherlands B.V., which is a subsidiary of Saipem SpA of Italy, JGC [of Japan] and us, each of which has a 25% interest. TSKJ has completed five LNG production facilities on Bonny Island, Nigeria . . . ."

Jack Stanley was a senior vice president of Dresser Industries, Inc. when it merged into Halliburton in September 1998. Dresser's wholly-owned construction subsidiary, Kellogg, was combined with Halliburton's construction subsidiary, Brown & Root, Inc., to form KBR. In November 2006, Halliburton spun KBR off and it became a separate publicly-traded company. Former Vice President Dick Cheney was Halliburton's chief executive from 1995 to 2000.

Why did Halliburton, and not KBR, first announce the proposed settlements with the DOJ and SEC two weeks ago? Under the indemnity in their agreement for KBR's spin off, known as the master separation agreement, Halliburton calls the shots on most FCPA-related matters. Here's what KBR said about that in the 2007 Annual Report:

As part of the master separation agreement, Halliburton has agreed to indemnify us for certain FCPA Matters, but we had to agree that Halliburton will, in its sole discretion, have and maintain control over the investigation, defense and / or settlement of FCPA Matters until such time, if any, that we exercise our right to assume control of the investigation, defense and /or settlement of FCPA Matters. We have also agreed, at Halliburton’s expense, to assist with Halliburton’s full cooperation with any governmental authority in Halliburton’s investigation of FCPA Matters and its investigation, defense and/or settlement of any claim made by a governmental authority or court relating to FCPA Matters, in each case even if we assume control of FCPA Matters.
Halliburton said in its release two weeks ago that it gave KBR the indemnity "[t]o enhance KBR's financial stability and solvency, making possible the separation of KBR . . . ."

KBR, Inc. trades on the NYSE under the symbol KBR.

Halliburton Company trades on the NYSE under the symbol HAL.

Listen to the podcast here.