Yesterday we posted our 2011 FCPA enforcement index. Today we look at corporate enforcement for all the years from 2006.
Entries in Bristow Group Inc. (9)
During the first quarter of 2011, two earlier FCPA-related indictments were disclosed. And there were four corporate actions, four guilty pleas, including two shot-show defendants and the former KBR middleman Jeffrey Tesler, who was hit with the biggest forfeiture order in FCPA history, and two sentencings of individuals to prison.
The authors say it's both a quick desk reference and -- at 241 pages -- an authoritative collection of FCPA resources. They're right.
There's exhaustive enforcement-related information -- DOJ and SEC actions, DOJ opinion procedure releases, civil suits and related litigation, and domestic and foreign investigations. There's also plenty of high-level analysis of what's going on with enforcement and compliance. (The "Lessons Learned" section is particularly strong.)
Kevin Abikoff, one of the partners responsible for the Alert, said: "We developed it originally as a comprehensive internal resource for our lawyers and clients. On reflection, we decided to open-source it to the compliance community and beyond. We hope people will find it useful. And we're happy to be able to make a contribution."
Here, for example, is what it says about a subject we've never covered -- management changes:
In certain circumstances, regulators may use enforcement actions as a tool to force a change in management where the regulators believe management is insufficiently attuned to FCPA concerns. Regulators may also reward companies that change management in response to findings of misconduct or seek lesser penalties where management changed before the misconduct came to light. For example, the DOJ praised Siemens for its remedial efforts, including that it “replaced nearly all of its top leadership.” Similarly, in the case of Bristow, the misconduct was discovered by the company’s newly-appointed CEO, and the SEC imposed no monetary penalty on the company. (See, e.g., Technip, Siemens, Schnitzer, Bristow)
On the puzzle of FCPA jurisdiction, it says:
As the Siemens settlement (among others) confirms, U.S. regulators continue to take an expansive jurisdictional view as to the applicability of the FCPA. The charging documents applicable to Siemens Venezuela, Siemens Bangladesh, and Siemens Argentina detail connections, but not particularly close or ongoing connections, between the alleged improper conduct and the United States. Similarly, the United States government has continued to seek the extradition of Jeffrey Tesler and Wojciech Chodan, both United Kingdom citizens who were indicted for their involvement in the Bonny Island, Nigeria bribery scheme and who are described in the charging documents as “agents” of a domestic concern. Clearly, regulators in what they deem to be appropriate circumstances, will look carefully for hooks to establish U.S. jurisdiction over perceived violations of anti-corruption legislation.
And on parent-company liability for foreign subsidiaries, it says:
The U.S. Government will prosecute parent companies based on the conduct of even far-removed foreign subsidiaries and even in the absence of alleged knowledge or direct participation of the parent company in the improper conduct. As a result, as the Willbros Group and several Oil-for-Food settlements make clear, companies must ensure that their anti-corruption compliance policies and procedures are implemented throughout the corporate structure and are extended quickly to newly acquired subsidiaries. (See, e.g., Fiat, Faro, Willbros Group, AB Volvo, Flowserve, Westinghouse, Akzo Nobel, Ingersoll-Rand, York, Bristow, Paradigm, Textron, Delta & Pine, Dow).
While looking at FCPA enforcement data, Bruce Hinchey, left, made a startling and disturbing discovery about the consequences of self reporting.
Here's his story:
* * *
Dear FCPA Blog,
Many question the Department of Justice’s claim that there are tangible benefits to voluntary disclosure of a FCPA violation.
As a part of a yet unpublished paper, I consider the data from 40 FCPA cases from 2002 through 2009 and the differences between bribes paid and penalties levied against companies that do and do not self-disclose.
In the paper, linear regression analysis of the cases reveals a sound statistical relationship between the amounts a company bribes and the corresponding fine it receives. For now, I will focus on the fine-to-bribe ratio companies face for FCPA violations. The fine-to-bribe ratio is calculated by simply dividing the total penalty a company received by the amount it bribed.
Within the voluntary disclosure group the fine-to-bribe ratios ranged from encouragingly low (Bristow Group Inc. and Latinode Inc. stand out with a fine-to-bribe ratio of 0 and .89, respectively) to strikingly high (Baker Hughes Inc. and Schnitzer Steel Industries Inc. had fine-to-bribe ratios of 10.73 and 8.46, respectively). On average, this group faced a 4.53 fine-to-bribe ratio. Thus, it appears as though a voluntarily disclosing company might expect a fine of $4.53 for every dollar given as a bribe.
The involuntary disclosure group also had surprisingly high ratios (Flowserve Corp. and Akzo-Nobel NV had fine-to-bribe ratios of 17.37 and 13.42, respectively) and low ratios (the Chevron Corp. and El Paso Corp.’s fine-to-bribe ratios were 1.5 and 1.41, respectively). This group, however, faced an average fine-to-bribe ratio of 3.22, suggesting a non-voluntarily disclosing company might expect a fine of only $3.22 per dollar bribed, compared to the voluntary disclosure group’s 4.53. This ratio would be even lower had it included the disproportionately low fine-to-bribe ratios levied in the cases against Siemens AG and KBR, which I dismissed as outliers.
Given the bribe-to-fine ratios in the published cases in recent years, the Justice Department appears not to be following up with its promised benefits. The seemingly disproportionate bribe-to-fine ratios outlined above raise questions about whether current FCPA enforcement is fundamentally fair.
Bruce is a lawyer completing an LLM in government procurement law at the George Washington University Law School. His paper, "Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements," can be downloaded at SSRN here.
It was generous of Bruce to share his work with us and our readers. Thank you, Bruce, for blowing our mind.
He's currently looking for a position in an FCPA defense and government contracts practice and can be reached at firstname.lastname@example.org
Here are some important corrections and clarifications to earlier posts about Siemens:
1. Wednesday’s post indicates that Schnitzer Steel pleaded guilty to books and records and internal controls violations. In fact, it was Schnitzer’s subsidiary that pleaded guilty, and those charges included antibribery and books and records charges, but not internal controls charges. The Siemens Information included the first ever criminal internal controls charge brought by the Justice Department. Although the SEC routinely includes internal controls charges in its civil resolutions, the DOJ has never done so.
2. The same post implies that Bristow Group Inc. settled an FCPA case with DOJ. That never happened. Bristow settled only with the SEC.
3. Friday's post mentions the 1998 amendments and implies that only after that did the FCPA apply to foreign companies, but the FCPA has applied to foreign issuers (like Siemens and some of the other companies mentioned in the post) since its enactment in 1977. The amendments only broadened the scope to include foreign individuals and foreign companies that were not issuers when they act unlawfully while within the territory of the U.S. The list of companies includes both issuers and non-issuers, but the post makes it seem as though none of them could have been prosecuted under the FCPA before 1998, which is not true.
Our thanks to those who provided their help in setting the record straight.
The relevant posts have also been corrected to prevent the spread of errors.
Enjoy the weekend.
Its historic settlement on Monday of Foreign Corrupt Practices Act violations was bound to raise the questions: Did Siemens enjoy checkbook justice? Did it achieve something ordinary criminal defendants can't? Did it use its extraordinary wealth and power to arrange a rather painless resolution with the U.S. government? By paying $800 million in penalties and disgorgement, did the German giant get off easy?
By any measure, Siemens' crimes were terrible. Evidence the company itself gathered and disclosed shows that for at least ten years it operated as a corrupt global enterprise. How much of its profit came through kick-backs and bribes we'll never know, but it amounted to billions. The company spread sleaze all over the globe, distorting government decisions and hurting millions by its lawlessness. But how many of its 400,000 employees were directly involved in the criminal acts? How many arranged or paid the bribes? How many had a hand in cooking the books to cover up the fraud? Was it a dozen employees? Or more like a hundred, or even a thousand? Whatever the number, the crooked ones were a minuscule part of Siemens' total workforce.
The question, then, is how much punishment should be inflicted on the corporation because of a few bad apples, relatively speaking? Should the DOJ have put Siemens on trial for bribery and sought the harshest sanctions available? Prosecutors, after all, had the company cold. Under the doctrine of respondeat superior, an organization is generally guilty per se when one of its employees commits a crime within the scope of his or her employment. In this case, then, Siemens was defenseless -- a sitting duck awaiting execution.
But the DOJ is understandably reluctant to hit corporations head on. The Arthur Andersen prosecution in the aftermath of the Enron scandal demonstrated the catastrophic consequences that can result from a corporate felony charge. For Andersen it was an instant death sentence, even though the firm was later exonerated. That's why the DOJ has since adopted a softer approach to FCPA and other white collar offenses. It offers companies that want to cooperate alternatives in the form of negotiated settlements.
The idea is that no company is beyond redemption. That each one can change -- most dramatically by changing its board and top management, as Siemens had already done. Schnitzer Steel did that a couple of years ago in an FCPA case involving outrageous criminal conduct, and it saved itself. Like Siemens, Schnitzer wasn't charged with bribery. Instead a subsidiary was allowed to plead guilty to violating the FCPA's antibribery and books and records provisions. And Bristow Group Inc. settled serious FCPA violations last year with the SEC without paying a dollar in penalties, mainly because its all-new management showed their commitment to compliance. Is there anything more a corporate body can do?
And even though corporations might escape the harshest aspects of the law, their culpable employees aren't always so fortunate. From the time the DOJ began backing off its stiff-armed approach to corporate prosecutions, the number of individuals held accountable under the FCPA has shot up. So nobody's getting away with anything.
In Siemens' case, were the goals of criminal sentencing -- retribution, deterrence, incapacitation and rehabilitation -- all met? Once the company had new leaders who uncovered and confessed its crimes, who adopted an effective compliance program, accepted a monitor, agreed to pay fines and disgorge profits, was there any reason to punish the organization further? Wouldn't more strokes of the cane merely have bloodied innocent employees, partners, shareholders and customers, while doing nothing about the long-gone crooks?
Peter Löscher became Siemens' CEO in July 2007, just as the frightening scope of its wrongdoing was becoming clear. In an interview a year ago this week, this was his assessment:
It's completely clear that the management culture failed. Managers broke the law. But this has nothing to do with a lack of rules. Siemens had and still has an outstanding set of rules. The only problem is that they were apparently being violated on an ongoing basis. The management culture was simply not practiced consistently and uniformly. This is why my job now is to install a new culture. And I can guarantee you that senior management will practice what it preaches -- to a T.Löscher committed himself and everyone around him to a clean company. That's what saved Siemens -- not its money or its power. The most important ingredient in its survival was its leader's decision to fix things by demanding real change. As Löscher said last year: Siemens endorses clean business. Period. I am not interested in deals that can only be had through corruption. That's it, then. Compliance first, profit second.
We believe in corporate redemption -- in well-earned second chances. And we're glad Siemens is getting one now.
For some great observations about Siemens' sentence, take a look at Ellen Podgor's post on the White Collar Crime Prof Blog here.
Questions about ambiguity in the Foreign Corrupt Practices Act have been around since its inception. See, for example, our post Looking Again At U.S. v. Kay (November 7, 2007). The Supreme Court will answer those questions soon, either by granting review of Kay and deciding what "obtaining or retaining business" means, or by refusing to take the case and allowing the government to continue its "expansive enforcement" of the law. Here's what's happening.
David Kay and Douglas Murphy were sentenced in 2005 to 37 and 63 months in prison respectively for violating the FCPA. They bribed Haitian officials in order to reduce their company's taxes. The Fifth Circuit denied their final request for a rehearing in January 2008, and in April they petitioned the U.S. Supreme Court for review. Kay v. United States (Docket: 07-1281) is on the docket of the Justice's opening conference on September 29, 2008 for the Court's October 2008 term. The petition for certiorari and all cert-stage briefs are available at scotusblog.com.
Kay and Murphy are arguing, among other things, that the only bribes outlawed by the FCPA are those intended to assist in obtaining or retaining business. That's the so-called "business nexus" element of an offense. And, they say, the bribes they paid to reduce taxes don't fit within the business nexus element at all.
They're supported by the U.S. Chamber of Commerce -- "the world’s largest business federation." It hopes the Supreme Court will hear the case and use it to draw new limits around FCPA enforcement. The Kay case, the Chamber says, has obliterated the business nexus element. Because of that, it says, American executives are now exposed to "expansive enforcement" of the FCPA that threatens them "with prison for conduct not criminalized by the plain language of the statute."
To illustrate the government's expansive approach, the Chamber's amicus brief includes a unique list of FCPA enforcement actions. These are cases based on bribes paid to foreign officials for something other than a direct award of work. We show footnotes from the brief in square brackets.
In the wake of Kay, there have been numerous FCPA actions predicated in part or in whole on payments made to reduce or avoid regulatory burdens, and many additional cases remain under investigation. Among others, the DOJ and SEC have entered into resolutions with companies alleged to have paid bribes to obtainWhat does the government say? That in the context of the entire statute, the language is not ambiguous. "The business nexus element requires that a bribe to a foreign official be made 'in order to assist [the company] in obtaining or retaining business for or with * * * any person.' 15 U.S.C. 78dd-1(a)(1). The word 'business' is ordinarily understood to mean a 'commercial or mercantile activity customarily engaged in as a means of livelihood.' Webster’s Third New International Dictionary of the English Language 302 (1993). Thus, the statutory language does not restrict the FCPA’s coverage to the award or renewal of contracts, but more broadly reaches actions that assist in obtaining or retaining business. Moreover, the FCPA carves out an exception from its prohibition for payments for 'routine governmental action.' 15 U.S.C. 78dd-1(b); see also 15 U.S.C. 78dd-1(f )(3) (defining 'routine governmental action'). That exception would be superfluous if the statute were limited in the manner that [Kay and Murphy] propose."
(1) government inspection reports and laboratory certifications;
(2) reductions in annual employment tax obligations;
(3) reductions in general tax obligations;
(4) refunds on previous tax payments;
(5) customs clearance for goods or equipment that were improperly or illegally imported;
(6) customs clearance for goods delayed due to the failure to post bonds with sufficient funds to cover duties and tariffs;
(7) encourage the repeal or amendment of national regulations limiting foreign investments;
(8) repeal of a government decree requiring an environmental impact study to be conducted;
(9) expedited government registration certifications required by law to produce, warehouse, or market products in the country; and
(10) beneficial changes to laws and regulations relating to land development.
Additional ongoing investigations implicate payments to bribe tax, customs and administrative officials to obtain (1) reduced tax obligations; (2) importation of construction equipment in violation of customs regulations; (3) customs clearance for goods and equipment; (4) immigration and tax benefits; and (5) a beneficial tax audit.
2 See SEC v. Delta & Pine Land Co., No. 07-cv-01352 (D.D.C. filed July 25, 2007); In the Matter of Delta & Pine Land Co., SEC Admin. Proceeding File No. 3-12712, Cease & Desist Order at 3 (July 26, 2007), available at http://www.sec.gov/litigation/admin/ 2007/34-56138.pdf
3 In the Matter of Bristow Group Inc., SEC Admin. Proceeding File No. 3-12833, Cease & Desist Order at 3 (Sept. 26, 2007), available at http://www.sec.gov/litigation/admin /2007/34-5633.pdf; Press Release, SEC Institutes Settled Enforcement Action Against Bristow Group for Improper Payment to Nigerian Gov’t Officials and Other Violations (Sept. 26, 2007), available at http://www.sec.gov/news/press/2007/2007-201.htm.
4 In the Matter of Baker Hughes Inc., SEC Admin. Proceeding File No. 3-10572, Cease & Desist Order (Sept. 12, 2001), available at http://www.sec.gov/litigation/admin/34-44784.htm; SEC v. KPMG Siddharta Siddharta & Harsono, No. H-01-3105 (S.D. Tex. filed Sept. 11, 2001); SEC v. Mattson, No. H-01-3106 (S.D. Tex. filed Sept. 11, 2001).
5 SEC v. Triton Energy Corp., No. 97-cv-00401-RMU (D.D.C. filed Feb. 27, 1997).
6 In the Matter of BJ Servs. Co., SEC Admin. Proceeding File No. 3-11427, Cease & Desist Order (Mar. 10, 2004), available at http://www.gov/litigation/admin/34-49390.htm.
7 United States v. Vetco Gray Controls Inc., No. 07-cr-004 (S.D. Tex. filed Jan. 5, 2007).
8 SEC v. BellSouth Corp., No. 02-cv-00113-ODE (N.D. Ga. filed Jan. 15, 2002). It is worth noting that the Senate originally proposed language that would have prohibited payments made for the purpose of “obtaining or retaining business … or directing business to, any person or influencing legislation or regulations of [the foreign] government.” S. 305, 95th Cong. § 103 (1977) (emphasis added). This language was ultimately rejected in favor of the current statute.
9 See News Release, Monsanto Announces Settlements With DOJ and SEC Related to Indonesia (Jan. 6, 2005), available at http://Monsanto.mediaroom.com/index.php?s=43&item=278.
10 See SEC v. Dow Chem. Co., No. 07-cv-336 (D.D.C. filed Feb. 12, 2007).
11 United States v. Halford, No. 01-cr-00221-SOW-1 (W.D. Mo. filed Aug. 3, 2001); United States v. Reitz, No. 01-cr-00222-SOW-1 (W.D. Mo. filed Aug. 3, 2001); United States v. King, No. 01-cr-0190-DW (W.D. Mo. filed June 27, 2001).
Kay and Murphy reply this way:
Though the Government's reading is consistent with one broad dictionary definition of "business", the court of appeals correctly recognized that other common and narrower definitions of "business" render petitioners' conduct perfectly lawful: "[T]he word business can be defined at any point along a continuum from a 'volume of trade,' to 'the purchase and sale of goods in an attempt to make a profit,' to 'an assignment' or a 'project.'" (quoting Webster's Encyclopedic Unabridged Dictionary 201 (1989)). The spectrum of potential meanings thus runs from a person who hopes to "improve his business" in terms of seeking to better his general economic performance to one who hopes to "receive the business" of a customer in terms of obtaining a particular relationship or contract. Notably, the limiting phrase, "for or with . . . any person" (15 U.S.C. § 78dd-1(a)(1)(B)) favors the latter interpretation. The statutory text is accordingly ambiguous.For those interested in the history of the case, it dates back to Kay and Murphy's indictment in 2001 for bribes they paid in Haiti in the late 1990s. At trial, the district court dismissed the indictment, agreeing that the FCPA's language of “obtaining or retaining business” didn't cover payments to reduce taxes or customs duties. In 2004, the Fifth Circuit Court of Appeals reversed, holding that the payments might fall within the FCPA's prohibitions by giving companies a commercial advantage. It remanded the case for the trial court to decide if there was sufficient evidence that the bribes could satisfy the business nexus element.
The Fifth Circuit's choice of the broadest, government-favoring interpretation of "business" produced a startlingly sweeping interpretation of this frequently employed provision of federal criminal law—one that criminalizes all payments intended to have any positive effect on the company. Under that broad theory, the court of appeals was able to conclude that, because "[a]voiding or lowering taxes reduces operating costs and thus increases profit margins, thereby freeing up funds that the business is otherwise legally obligated to expend", such conduct "assist[s] . . . in obtaining or retaining business" within the meaning of the FCPA. The Government accordingly urges that criminal liability attaches whenever "the resulting savings benefit the company's existing business." The problem is that "[t]he same can be said about virtually any contact with a foreign official that somehow—and no matter how indirectly—enables the company to take some action that reduces costs or otherwise benefits it."
In 2005, a jury convicted Kay and Murphy. They appealed again to the Fifth Circuit, this time also arguing that the mens rea element of an FCPA offense was missing from their indictments. In October 2007, the Fifth Circuit affirmed their convictions. They filed a petition for rehearing en banc, which was denied in January 2008. With appeals to the Fifth Circuit exhausted, in April they petitioned the Supreme Court for review.
The online edition of Nigeria's Business Day newspaper carried a story on November 19, 2007 that's noteworthy. It's about how corrupt multinationals are undermining the country's economy. The story can be found here. Public corruption always involves two parties -- the crooked official and the bribe-paying privateer. Both share the blame. Still, looking at corruption through the eyes of the host country reminds us of the damage inflicted on economies and the harm done to innocent citizens.
We can't vouch for all the reporting in the Business Day story. But the writer, Martins Azukwike, compiles a roll call of companies recently linked by their home countries to corrupt payments in Nigeria or now being investigated for illegal activities there. The names include Siemens, Shell, ChevronTexaco, Willbros, Halliburton, Technip, Snamprogetti, Kellogg, Japanese Gas Corporation, Agip, TotalFina/Elf, Baker Hughes, Vetco, GlobalSantaFe, Transocean, Tidewater, Noble Corporation, Nabors Industries, Pride International Inc. and Panalpina. Mr. Azukwike could have added ABB, Bristow, Paradigm and others.
No wonder ordinary Nigerians are pointing fingers. Players in the oil patch and elsewhere should pay attention to this warning from the story: "With the gale of exposure of corporate scandals in foreign lands involving the operations of multinationals in Nigeria, opinions are already building with a call to urgently declare a force majeure on the oil companies’ operations in the country. The list of exposure of the misdeeds of these companies, which have opened the Pandora’s Box, is becoming almost endless."
The drafters of the U.S. Foreign Corrupt Practices Act knew that public bribery is not a victimless crime. Eventually, ordinary citizens whose daily lives are ruined reach their limit. That's part of what happened in Somoza's Nicaragua, the Shah's Iran, Marcos' Philippines and Suharto's Indonesia. Will Nigeria join the list?
Houston-based Bristow Group Inc. (formerly Offshore Logistics Inc.) settled U.S. Foreign Corrupt Practices Act charges related to improper payments in Nigeria in 2002 and 2003 to lower expatriate employment taxes there. The payments to Nigerian state government officials violated the anti-bribery provisions of the FCPA and Bristow's under-reporting of its tax liabilities violated the books and records provisions. It consented to a September 26, 2007 administrative cease-and-desist order from the Securities and Exchange Commission. Bristow, which provides helicopter services worldwide to the offshore oil and gas industry, did not pay any financial penalties.
Bristow's internal investigation started in late 2004 when its newly-appointed CEO heard remarks suggesting that an affiliate, Pan African Airlines Nigeria Ltd., had engaged in bribery to reduce certain tax assessments. He reported it immediately to the audit committee and contacted outside counsel. The subsequent internal investigation showed corrupt payments totaling $443,300 and resulting tax savings of $873,940. Bristow self-reported the results to the SEC, which also found that the company had mischaracterized the payments in its books and records as legitimate payroll expenses and lacked sufficient internal controls. Bristow cooperated with the SEC and has taken remedial steps. The SEC's decision not to impose any financial penalties is an endorsement of Bristow's handling of the matter.
Bristow first reported the bribery problems in its 2005 annual report. The SEC's order requires it to cease and desist from violating Sections 30A, 13(a), 13(b)(2)(A) and 13(b)(2)(B) of the Securities and Exchange Act of 1934 and Rules 12b-20, 13a-1 and 13a-13.
Bribes to reduce taxes were the basis of the FCPA charges upheld in U.S. v. David Kay and Douglas Murphy (February 4, 2004), discussed in another post Here.
Bristow Group Inc. trades on the New York Stock Exchange under the symbol BRS.
View the SEC's Press Release Here.
View the SEC's September 26, 2007 Administrative Proceeding No. 34-56533 (Accounting and Auditing Enforcement Release No. 2727 and Administrative Proceeding File No. 3-12833) Here.