Stewart On Tyson: Who's Accountable?

James B. Stewart, left, arguably America's finest business writer, has looked at the Tyson FCPA case for the New York Times. And he's asked some tough questions about enforcement.

In February, Tyson Foods settled FCPA violations with the DOJ and SEC for $5.2 million. Tyson had made illegal payments to government-employed inspectors in Mexico, and covered-up the payments.

The SEC said it was "not until two years after Tyson Foods officials first learned about the illicit payments that its counsel instructed Tyson de Mexico to cease making the payments." That fact was curious. It showed that people at the company decided to continue the bribery after it was discovered.

Yet no individuals were prosecuted.

On Friday, from his new perch at the Times, Stewart (BA DePauw University, JD Harvard Law, former associate at Cravath, Swaine & Moore, and winner of a Pulitzer Prize) picked up the story:

When I called this week, press officers for both the Justice Department and SEC said the investigation was over and no one would be named or charged. This seems to reflect the belief that the deferred prosecution agreement, penalty and SEC settlement largely achieved the government’s objectives, which were to stop the illegal conduct at Tyson and deter future instances. The decision not to pursue cases against individuals seems also to reflect budgetary constraints at both agencies (cases involving foreign witnesses can be especially costly) and, for the Justice Department, the burden in a criminal case of proving guilt beyond a reasonable doubt. But surely bribery, not to mention other forms of corporate wrongdoing, would be more effectively deterred if someone was actually held accountable for it.

As we reported last year, more than sixty percent of the companies that have settled FCPA enforcement actions since 2005 had no individual employees or agents who were charged.

The DOJ has consistently said individuals are still a target. As examples, it cites the shot-show prosecutions -- 22 individuals indicted for FCPA violations -- and the mass FCPA indictment of eight CCI executives, six at one time. It also prosecuted Frederic Bourke, Gerald and Patricia Green, and Keith Lindsey and Steve Lee of Lindsey Manufacturing, among others. 

But then there's Siemens, an $800 million enforcement action. The DOJ's Lanny Breuer called it "arguably the most egregious example of systemic foreign corruption ever prosecuted." Yet no one from the company was ever indicted in the U.S.

U.K.-based BAE paid $400 million to settle an FCPA case. No one from BAE has faced U.S. charges. Again, Daimler AG from Germany paid $185 million in penalties, and so far no one from that company has been charged here.

The pattern is broken, but only slightly, by the biggest enforcement action of them all. From the four companies that made up the TSKJ Nigeria consortium -- Technip, Saipem, KBR, and JGC -- just one U.S. executive and two Britons have been charged. Meanwhile, the four TSKJ companies have paid $1.5 billion to settle with the DOJ and SEC.

Unlike the foreign executives from Siemens, BAE, and Daimler, the Tyson executives responsible for the Mexican bribery were in the U.S. The DOJ and SEC didn't name them but Stewart did.

As Stewart wrote, "Companies seem all too willing to go along with this, passing settlement costs on to the shareholders while sweeping the details — and names — under the rug."

Do current FCPA enforcement practices really deter bribery? Or do they weaken the rule of law and encourage cynicism?

Technip's €245 Million FCPA Charge

French company Technip said on Friday in its fourth quarter earnings release that it has reserved €245 million for an exceptional charge related to a potential settlement of Foreign Corrupt Practices Act offenses with the Justice Department and Securities and Exchange Commission for its role in the TSKJ Nigeria joint venture.

The company said:

As previously disclosed in its public filings, Technip has been cooperating with the United States Securities and Exchange Commission ("SEC") and the United States Department of Justice ("DOJ") in the ongoing investigations involving the joint venture company TSKJ, of which Technip has a 25% share, in relation to events which occurred between 1994 and 2004. Technip and the SEC and DOJ have discussed a resolution of all potential claims against the company arising from the investigation. While these discussions have not concluded, Technip will record an exceptional charge of €245 million in the fourth quarter 2009 reflecting the estimated costs of resolution based on the current status of the ongoing discussions.

Technip's chairman and CEO Thierry Pilenko said discussions with the SEC and DOJ "have intensified over the last weeks. There is now a roadmap to a satisfactory global resolution of all potential claims in the U.S. arising from the investigation. This is why we are now able to estimate the monetary cost of a resolution in our fourth quarter 2009 accounts."

A year ago, Houston-based global engineering firm Kellogg Brown & Root LLC (KBR) pleaded guilty to a five-count criminal information, with one conspiracy count and four substantive counts of violating the Foreign Corrupt Practices Act, for its role in the TSKJ joint venture. And with its former parent, Halliburton, it settled civil charges with the SEC. KBR's criminal fine was $402 million and with Halliburton it agreed to pay the SEC $177 million in disgorgement.

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 TSKJ were worth more than $6 billion. KBR's former CEO, Albert "Jack" Stanley, pleaded guilty in September 2008 to conspiring to violate the FCPA. He was sentenced to seven years in prison, subject to court review based on his cooperation.

The TSKJ joint venture was equally owned by KBR, Technip, Snamprogetti Netherlands B.V., a subsidiary of Saipem SpA of Italy, and JGC of Japan. It operated through three Portuguese special purpose corporations based in Madeira, Portugal. See our prior posts about KBR and TSKJ here.

In its release today, Technip said it doesn't expect " a criminal conviction for Technip’s role in the TSKJ joint venture." It said the fine will be "substantial" but won't impede the company from continuing its global business "in a normal manner."

The company added that the deal with the DOJ and SEC isn't completed.

Technip is a market leader in oil, gas, and petrochemical engineering, construction and services. It is headquartered in Paris and has about 23,000 employees. In 2009, revenue was €6.4 billion and operating income was €677 million.

Technip S.A.'s ADRs trade on the over-the-counter market under the symbol TKPPY.

View a copy of the company's February 12, 2010 release here.

Special thanks to Cody Worthington for his help with this post.

Tesler Fights Extradition; Jefferson Appeals

The London lawyer accused by the U.S. of being a middleman in KBR's bribery of Nigerian officials appeared in court last week to fight extradition. Jeffrey Tesler, 61, a U.K. citizen, was indicted in February by a federal grand jury in Houston. He was charged with one count of conspiring to violate the Foreign Corrupt Practices Act and ten substantive FCPA offenses. If convicted on all counts, he faces up to 55 years in prison. U.K. police, acting at the request of U.S. authorities, arrested Tesler in March.

According to a Press Association report, Tesler argued in the City of Westminster Magistrates' Court that his case is already under investigation by the U.K.'s Serious Fraud Office and shouldn't be duplicated by American prosecutors.

Tesler's lawyer, Bill Clegg QC, also said Tesler's case isn't linked to the U.S. "No person who was alleged to have received a bribe was promised a bribe in the U.S.A. No money to pay any bribes originated from any U.S. bank account. Mr Tesler, who it is alleged arranged the bribes, had never visited the U.S. in relation to the alleged conspiracy." The alleged bribes, Clegg said, were handled by a Gibraltar company and paid through Swiss bank accounts.

The U.S. indictment charged Tesler with using his Gibraltar company, Tri-Star Investments, to funnel about $132 million in bribes to Nigerian officials. The payments were intended to secure contracts worth more than $6 billion to build liquefied natural gas facilities on Nigeria's Bonny Island. The DOJ said Tesler was acting for a joint venture known as TSKJ, equally owned by KBR, Technip, SA of France, Snamprogetti Netherlands B.V. (a subsidiary of Saipem SpA of Italy) and JGC of Japan.

The Crown's lawyer, David Perry QC, said U.S.-based companies were involved and money had been channelled through U.S. bank accounts. According to a report in the Guardian, Perry said the allegations against Tesler could be criminal offenses "in Britain as well as the U.S., so extradition could take place under normal legal rules."

In the indictment, the U.S. made this claim of jurisdiction:

At all times relevant to this Indictment, Tesler was an "agent" of an "issuer" within the meaning of the FCPA, Title 15, United States Code, Section 78dd- 1, an "agent" of a "domestic concern" within the meaning of the FCPA, Title 15, United States Code, Section 78dd-2, and an "agent" of a "person" within the meaning of the FCPA, Title 15, United States Code, Section 78dd-3.

The London court continued Tesler's extradiction hearing.

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Down But Not Out. Former congressman William Jefferson, sentenced last month to 13 years in prison for corruption and conspiring to violate the Foreign Corrupt Practices Act, managed to file his notice of appeal on time. It was touch-and-go after Jefferson, 62, filed for bankruptcy in August, saying he owes his criminal defense lawyers more than $5.7 million. But two of the lawyers are sticking with him.

The Times Picayune reported that attorneys Robert Trout and Amy Jackson received approval last week from the trial judge, T.S. Ellis III, for the court to pay Jefferson's legal fees for the appeal. The lawyers won't get their full rates but a lower amount equivalent to court-appointed public defenders. Ellis also approved their request for the court to pay for a transcript of the six-week trial, probably about $26,000.

Jefferson is free on bail pending his appeal. It's expected to take at least a year. Judge Ellis said he released Jefferson because his defense raised an argument that's untested in the appellate courts. Jefferson says he was acting as a private citizen, while a corruption statute he was convicted under applies only to public acts by elected officials. The judge also said he regretted not making the jury's verdict form more specific. (See our post here.)

Jefferson was convicted on 11 charges -- conspiracy, soliciting and taking bribes, depriving citizens of honest services, money laundering and racketeering. He was acquitted of five charges, including Count 11 of the indictment -- the only substantive FCPA charge he faced.

Halliburton May Face U.K. Charges

Halliburton disclosed Friday in its latest SEC filing that the U.K.'s Serious Fraud Office (SFO) may bring civil claims or criminal charges against it under various British laws. In February this year, Halliburton and its former subsidiary, Kellogg Brown & Root LLC, admitted paying Nigerian officials at least $182 million in bribes for contracts awarded between 1995 and 2004 to build liquefied natural gas facilities on Bonny Island, Nigeria. The companies agreed with the U.S. Justice Department to pay a $402 million criminal fine, with Halliburton paying $382 million of that amount. Halliburton also agreed with the Securities and Exchange Commission to be jointly liable with KBR to pay $177 million in disgorgement. See our post here.

In Friday's disclosure, Halliburton said the SFO is focused on M.W. Kellogg Limited (MWKL), a U.K. subsidiary of KBR. The DOJ's criminal information had said KBR tried to shield itself from the FCPA by using MWKL to hold ownership in TSKJ, a four-party joint venture that acted as the main contractor on the Bonny Island project. TSKJ's other members were Technip SA of France, Snamprogetti Netherlands B.V. (a subsidiary of Saipem SpA of Italy), and JGC Corporation of Japan. Each partner held about 25% of the venture.

Halliburton said a finding that it broke British laws could "result in fines, restitution and confiscation of revenues, among other penalties." The amount of final civil or criminal penalties, the company said, will depend on whether MWKL knew about and authorized any of the illegal payments, how much revenue resulted from the bribes, and "the level of cooperation provided to the SFO during the investigations."

The company said its role in the Bonny Island project is also being investigated by France, Nigeria, and Switzerland and could also result in third-party claims.

In February this year, a federal grand jury sitting in Houston indicted Jeffrey Tesler, 60, of London, England, and Wojciech Chodan, 71, of Maidenhead, England, for violating the FCPA. The two U.K. citizens allegedly helped KBR bribe Nigerian officials. The Justice Department unsealed the indictments after Tesler's March 5 arrest by British police acting at the request of U.S. authorities. Chodan hasn't been arrested but faces an outstanding U.S. warrant. The DOJ said it will try to extradite both men to the U.S. to stand trial.

Tesler, a lawyer in London, and Chodan, a former employee and consultant of MWKL, were charged with one count of conspiracy to violate and ten counts of violating the FCPA. They face up to 55 years in prison if convicted on all counts. The indictment also seeks forfeiture from them of more than $132 million -- the amount they allegedly paid to Nigerian officials as bribes. See our post here.

In the U.K., the SFO hasn't indicated whether it plans to take action against Tesler and Chodan or other individuals involved in the case. Tesler was identified in KBR's 2007 annual report. British and French authorities investigated him two years ago but didn't file any charges.

In September 2008, Albert “Jack” Stanley, 65, a former chairman and CEO of KBR, pleaded guilty to a two-count criminal information that charged him him with conspiracy to violate the FCPA and conspiracy to commit mail and wire fraud. He admitted that from 1995 to 2004, he helped TSKJ bribe government officials in Nigeria. Stanley was sentenced to seven years in prison and a restitution payment of $10.8 million. The sentence is subject to review based on his cooperation. See our post here.

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 off KBR, which 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 actual or alleged violations of the FCPA and similar foreign laws committed before November 2006. Halliburton has said it gave 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.

Halliburton Company's Form 10-Q filed October 23, 2009 (for the period ending September 30, 2009) can be downloaded here.

Read all our posts about Halliburton here.
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KBR's U.K. Middlemen Indicted

Two U.K. citizens who allegedly helped Houston-based Kellogg Brown & Root (KBR) bribe Nigerian officials have been indicted for violating the Foreign Corrupt Practices Act. Jeffrey Tesler, 60, of London, England, and Wojciech Chodan, 71, of Maidenhead, England, were indicted on Feb. 17, 2009 by a federal grand jury sitting in Houston. The Justice Department didn't unseal the indictments until after yesterday's arrest of Tesler by British police, who acted at the request of U.S. authorities. Chodan hasn't been arrested but faces an outstanding U.S. warrant. The DOJ said it will try to extradite Tesler and Chodan from the U.K. to stand trial in the U.S.

Tesler, a lawyer in London, and Chodan, a former employee and consultant of KBR's U.K subsidiary, were charged with one count of conspiracy to violate and ten counts of violating the FCPA. They face up to 55 years in prison if convicted on all counts. The indictment also seeks forfeiture from them of more than $132 million.

The indictment says a joint venture that included KBR entered into consulting contracts with a Gibraltar corporation allegedly controlled by Tesler called Tri-Star Investments. The joint venture paid Tri-Star about $132 million to be used to bribe Nigerian government officials. The bribes were intended to secure contracts worth more than $6 billion to build liquefied natural gas facilities on Bonny Island, Nigeria. The joint venture, known as TSKJ, was equally owned by KBR, Technip, SA of France, Snamprogetti Netherlands B.V. (a subsidiary of Saipem SpA of Italy) and JGC of Japan. Chodan allegedly participated in meetings where the bribery was discussed and he wired $50 million from KBR-controlled accounts to a Japanese trading company to be used to bribe Nigerian officials.

Among the details in the indictment: In August 2002, a KBR representative, using money KBR provided to Tesler, "delivered a pilot's briefcase containing one million U.S. dollars in one-hundred dollar bills to the [Nigerian] Official at a hotel in Abuja, Nigeria, for the benefit of a political party in Nigeria." And in April 2003, a KBR representative "delivered a vehicle containing Nigerian currency valued at approximately $500,000 to the hotel of the [Nigerian] Official in Abuja, Nigeria, for the benefit of a political party in Nigeria, leaving the vehicle in the hotel parking lot until the . . . Official caused the money to be removed."

Last month, KBR pleaded guilty to violating the Foreign Corrupt Practices Act. It agreed with the DOJ to pay a $402 million fine. KBR and its former parent company, Halliburton Company, also agreed to pay $177 million in disgorgement to the Securities and Exchange Commission to settle the FCPA offenses. KBR's former CEO, Albert "Jack" Stanley, pleaded guilty in September 2008 to conspiring to violate the FCPA and to mail and wire fraud charges. He has been cooperating with prosecutors. His sentencing is now scheduled for Aug. 27, 2009.

The DOJ said it had help in the case from "authorities in France, Italy, Switzerland and the United Kingdom, including in particular the Serious Fraud Office’s Anti-Corruption Unit, the London Metropolitan Police and the City of London Police."

The indictment against Tesler and Chodan contains only FCPA charges. Usually the DOJ adds other criminal counts, such as money-laundering, mail and wire fraud. Relying strictly on alleged antibribery offenses will test the jurisdictional reach of the FCPA over foreign citizens who apparently were not in the U.S. at any times relevant to the charged conduct.

The FCPA asserts jurisdiction over foreign companies and nationals that take any act in furtherance of a corrupt payment while within the territory of the United States. See §78dd-3(a), (f)(1). This part of the FCPA is untested in court, but the DOJ interprets it expansively as conferring jurisdiction whenever a foreign company or national acting as an agent of an issuer or domestic concern causes an act to be done within the territory of the United States. (See the United States Attorneys' Manual, Title 9, Criminal Resource Manual §1018 “Prohibited Foreign Corrupt Practices” here.) The indictment says Tesler and Chodan were agents of KBR and sent some of the bribe money through U.S. bank accounts.

Another unusual aspect of the indictment is the use of the forfeiture remedy against Tesler and Chodan. (See 28 USC Section 2461, and Title 18 USC Section 981 (a)(l )(C), "all property, real and personal, which constitutes or is derived from proceeds traceable to the violations.") The U.S. government says it wants the entire $132 million that KBR transferred to Tesler's Gibraltar company or the property derived from it. The DOJ apparently isn't distinguishing the KBR money Tesler allegedly paid out in bribes from amounts he may have kept.

Jeffrey Tesler was identified in KBR's 2007 annual report. British and French authorities investigated him two years ago but didn't file any charges. In 2007, British authorities searched his London office at the request of U.S. officials. He is listed as a consultant to a small North London law firm called Kaye Tesler & Co. Among other things, the firm offers anti-money laundering training. 

As the Justice Department says: Criminal indictments are only charges and not evidence of guilt. A defendant is presumed to be innocent until and unless proven guilty.

The DOJ's March 5, 2009 release can be downloaded here.

The federal grand jury's February 17, 2009 indictment of Jeffrey Tesler and Wojciech Chodan can be downloaded here.