Anti-Bribery Provisions of the Foreign Corrupt Practices Act:
Application to Foreign Corporations and Individuals
LeClairRyan Carlos F. Ortiz 973.491.3365 [email protected] Valerie C. Charles 973.491.3321 [email protected]
ANTI-BRIBERY PROVISIONS OF THE FOREIGN CORRUPT PRACTICES ACT:
APPLICATION TO FOREIGN CORPORATIONS AND INDIVIDUALS
by Carlos F. Ortiz and Valerie C. Charles
I. The Foreign Corrupt Practices Act
In recent years, the United States Department of Justice (“DOJ”) and the Securities Exchange Commission (“SEC”) have significantly increased the number of investigations, settlements, and prosecutions of companies and individuals, including foreign entities and citizens, for violations of the Foreign Corrupt Practices Act (“FCPA”). Because of this increased enforcement activity, it is critical that foreign companies and affiliates of foreign companies have a clear understanding of practices prohibited by the FCPA and how to minimize their risk of a potential violation of the act.
The FCPA contains anti-bribery provisions as well as provisions regarding company records and internal controls. The latter applies only to issuers who have securities registered in the United States and foreign companies that trade foreign stock through certain American Depository Receipts (ADRs) sold on United States exchanges. This memorandum focuses solely on the anti-bribery provisions of the FCPA.
a. The Anti-Bribery Provisions of the FCPA
The anti-bribery provisions make it unlawful for any issuer, domestic concern, or person acting within the United States to offer, or to make a payment of, anything of value, directly or indirectly, to a foreign official, public international organization official, political party or party official, or any candidate for office, for the purpose of influencing that person to assist in obtaining or retaining business.
In addition to applying to government employees at all levels, the term “foreign official” under the FCPA also includes employees of state controlled business enterprises. For example, health care professionals employed by government hospitals are considered officials under the act. There is no set amount of ownership by the state that is required for the act to apply and prosecutors will review the facts of each case before making a determination regarding the status of a particular entity. The government has also focused on the use of agents, intermediaries, and distributors to provide improper benefits. In other words, where a company’s foreign agent, intermediary, and/or distributor, as opposed to a company employee, provides an improper benefit to a “foreign official,” the company may be held responsible for this conduct, whether or not any company employees had direct knowledge that the benefit was provided.
The term “anything of value” is not defined in the FCPA. However, what constitutes a thing of value has been broadly construed and can include not only cash or a cash equivalent, but also, among other things: discounts, gifts, use of materials, facilities or equipment, excessive entertainment, transportation, lodging, insurance benefits, and/or the promise of future employment. Recently, prosecutors have focused on sponsoring foreign officials to conferences where the trip includes a significant amount of leisure time or activities. The perception of the recipient and the subjective valuation of the thing conveyed is often a key factor considered by enforcement agencies in determining whether “anything of value” has been given to a foreign official. For example, a wholly owned international subsidiary of a top pharmaceutical company made donations to a charitable foundation headed by a
government official. The SEC alleged that the payments to the charity were intended to induce the government official to purchase the company’s products for his region’s health fund and as a result, the company paid a civil penalty of $500,000 and was forced to retain an independent compliance monitor for three years.
There is also no de minimis exception to the FCPA’s prohibitions. In a case brought against a manufacturer of products for locomotives and passenger transit vehicles, the DOJ and SEC asserted that the company, through its Indian subsidiary, made improper payments to officials of the Indian Railway Board. Although the payments totaled more than $40,000 over the course of the year, individual payments as small as $31.50 per month were considered violations. The company settled the dispute and agreed to pay a $300,000 fine.
II. Application to Foreign Entities and Individuals
The FCPA was amended in 1998 to specifically apply to any foreign company and/or any foreign individual if such entity or person provides an improper benefit in connection with a transaction that has any nexus to the United States. This includes the transfer of funds through a United States bank, transmitting an email through a computer or server located in the United States, and/or attendance at meetings in the United States. It is not necessary that the actual illegal benefit have a nexus to the United States so long as the underlying transaction does.
Importantly, the anti-bribery provisions also apply to officers, directors, employees, and agents of issuers and domestic concerns. On this basis, a foreign entity in an agency relationship with its United States subsidiary is directly subject to the anti-bribery provisions. Additionally, a foreign executive who while physically located in the United States engages in conduct that results in an improper benefit or payment abroad, is also subject to the anti-bribery provisions of the act.
III. Application of the FCPA to Foreign Corporations with either Subsidiaries in the United States or a Financial Relationship to a United States Entity
Foreign corporations’ subsidiaries that are incorporated in the United States are directly subject to the FCPA because they are “domestic concerns.” As such, the conduct of their employees and agents will be scrutinized regarding their international business practices and these individuals are subject to prosecution for any violations of the act. Accordingly, employees and agents of these entities conducting business operations outside of the United States should be made fully aware of FCPA risks.
To the extent money or other benefits flow from any foreign entity into a United States affiliate, subsidiary, parent, or business partner, DOJ may argue that such relationship creates agency, partnership or joint venture, rendering activities of the foreign entity subject to the anti-bribery provisions of the FCPA. Similarly, should foreign employees engage in activities that DOJ believes violate the FCPA, and such activities directly or indirectly benefit a United States subsidiary (as opposed to solely benefiting the employee’s foreign entity employer), the government may argue that the foreign employee is acting as an agent for the United States subsidiary, and therefore such actions would be attributable to the United States entity for purposes of FCPA enforcement. This may occur without direct knowledge on the part of the employees and officers of the United States entity. Under these circumstances, DOJ has the ability to prosecute the foreign entity or individual as an agent of the United States entity. Finally, as mentioned above, regardless of their relationship to a United States entity, foreign corporations and individuals are also subject to jurisdiction under the FCPA if any part of the underlying transaction associated with the improper benefit touches the United States. This
includes an action as minor as an email relating to the transaction sent to an entity or through a server located in the United States.
IV. Related Examples
While there have been numerous FCPA prosecutions over the past six years, much of the cases have involved corporate settlements and as a result there is very little case law interpreting the various aspects of the FCPA. The following are examples of recent cases where foreign companies and individuals were subject to the FCPA and paid fines.
a. Noble Corporation
The Noble Corporation (“Noble”), a Swiss company, was subject to the FCPA and paid a fine because employees of its United States subsidiary were aware of the illegal actions of its Nigerian subsidiary. Noble admitted that, from 2003 to 2007, it utilized a Nigerian customs agent to submit false paperwork to extend expired import permits and also funneled $74,000 in “special handling charges” to customs officials in the process. The Nigerian subsidiary and certain employees of Noble’s United States subsidiary were aware that some of the money paid to the Nigerian customs agent was for the purpose of illegally obtaining extensions for the temporary import permits. As a result of this conduct, Noble entered into a non-prosecution agreement with the United States government and paid $2.59 million in sanctions.
b. Jeffrey Tesler
A multi-national, four company joint venture sought to obtain contracts to build natural gas facilities in Nigeria. One of the four joint venture companies was based in the United States. The joint venture hired Jeffrey Tesler, a United Kingdom solicitor with a shell company, to bribe Nigerian government officials to obtain contracts from the Nigerian National Petroleum Corporation. The consulting contract between a company owned by the joint venture partners and Tesler’s company falsely represented that this company would be paid for marketing and advisory services when in fact its primary purpose was to facilitate bribes.
Tesler admitted that the joint venture paid him and his shell company approximately $132 million, via correspondent accounts in New York, for use in bribing Nigerian government officials. He acknowledged that he met with Nigerian senior officials and negotiated and paid bribe payments totaling $143.5 million. Although he was a foreign citizen and his actions did not take place on United States soil, he was prosecuted under the FCPA. DOJ asserted jurisdiction due to the use of the correspondent accounts in New York and the benefit derived by the United States member of the joint venture. In other words, DOJ asserted jurisdiction over Tesler simply because of a rather attenuated connection to the United States – the New York bank accounts. As a result, Tesler pled guilty to violations of the anti-bribery provisions and will be sentenced in December 2011.
c. Tianjin Depu Biotechnological and Medical Products Inc.
DOJ prosecuted DPC Co. Ltd., formerly Tianjin Depu Biotechnological and Medical Products Inc. ("Tianjin"), a Chinese subsidiary of Diagnostics Products Corporation, a United States issuer. Tianjin pled guilty to violating the FCPA for making improper payments to physicians and laboratory personnel employed by Chinese-government-owned hospitals. These payments were made in exchange for agreements that Chinese hospitals would retain Tianjin's products and services. DOJ asserted jurisdiction over the Chinese company because, in its view, the United States parent
was using the Chinese company as an agent and deriving a financial benefit from conduct that violated the FCPA. The Tianjin theory of prosecution could subject any foreign company with a United States affiliate to prosecution under the FCPA if the foreign company is found to have participated in an improper payment.
d. ABB Vetco Gray UK
DOJ brought charges directly against ABB Vetco Gray UK as well as Vetco Gray, Inc. (US). The employees of ABB Vetco Gray UK never engaged in any conduct that violated the FCPA, and the government did not allege any such action. Rather, jurisdiction was asserted on the basis that an employee of ABB Vetco Gray, Inc. (US) acted as an agent for ABB Vetco Gray UK when the employee provided payments and benefits to Nigerian officials. DOJ alleged that ABB Vetco Gray UK made subsequent reimbursement payments to its United States affiliate by check or wire transfer. As such, the United Kingdom entity was independently and directly subject to the FCPA. The import here is clear. DOJ takes the position that where foreign companies have United States affiliates (parents or subsidiaries), and either engages in conduct thought to violate the anti-bribery provisions to the benefit of the other, both the foreign entity and the domestic entity are directly subject to consequences of an FCPA violation.
e. Frederic Bourke
In one of the few trials involving FCPA charges, Frederic Bourke, an American investor, was convicted in July 2009 for his role in a bribery scheme in Azerbaijan in the late 1990s relating to an investment consortium in which he had invested over $8 million. A jury found that a third party business man used Bourke’s investment to pay bribes to Azeri government officials to effect the privatization of the State Oil Company of Azerbaijan and to gain a controlling interest once privatized. A jury found Bourke guilty of conspiracy to violate the FCPA because he did not investigate circumstances indicating a high probability that a third party would use his money to make improper payments to foreign officials. Bourke was convicted for violating the FCPA without any argument that he had actual knowledge of the bribes. This case is important because it demonstrates the evidentiary standard necessary to satisfy the knowledge requirement of the FCPA.
These cases demonstrate the aggressive approach taken by DOJ to prosecute foreign companies and individuals as long as there is any connection to the United States or there is any benefit to a United States entity. As Bourke demonstrates, such entity and its employees can be found to violate the FCPA even in the absence of direct knowledge of improper conduct.
V. The Travel Act
The Travel Act is a United States law which prohibits the use of communications and travel facilities to commit crimes. Specifically, the Travel Act criminalizes the use of “the mail or any facility in interstate or foreign commerce” (including a telephone call, email, wire transfer, or actual travel) with the intent to “facilitate the promotion, management, establishment or carrying on of an unlawful activity.” Unlawful activity is defined to include “bribery … in violation of the laws of the state in which committed or of the United States.”
Because prosecutors can effectively federalize the commercial bribery statutes of any state, the Travel Act is substantially broader than the FCPA and has been used by DOJ to prosecute bribery of foreign private individuals. For example, if during negotiation with a private
business deal in a foreign country, a sales agent in the United States makes a payment to a foreign business person by wire for the purpose of influencing that person to accept the deal (and such payment would be a bribe under state law), DOJ has the ability to allege a violation of the Travel Act.
VI. Conclusion
As described above, United States prosecutors have aggressively sought to expand the scope of the FCPA to cover the conduct of both United States and foreign entities and individuals. The stakes have never been higher, and foreign companies have agreed to make tremendous payments to the United States to avoid the cloud of a lengthy prosecution. For example, in addition to the foreign entities and individuals described above, Panalpina World Transport (Holding) Ltd., a Swiss company, pled guilty to using its subsidiaries and affiliates, one of which was United States based, to pay bribes to foreign officials on behalf of its customers in the oil and gas industry. Panalpina paid a penalty of $70.56 million.
Companies with United States affiliates, parents, subsidiaries, and/or other agency relationships in the United States should promptly consider implementing anti-corruption policies and training. As described above, the United States has increasingly attempted to target foreign companies and individuals, even when the conduct thought to violate the FCPA has a most attenuated connection to the United States. Foreign companies with United States connections should also consider performing due diligence regarding its existing business partners and agents used abroad as well as implementing a policy of performing due diligence on any potential foreign partners and/or agents.
