INTRODUCTION TO THE MID-YEAR UPDATE

To supplement our annual FCPA Business Guide, this mid-year update reports on Foreign Corrupt Practices Act (FCPA) enforcement actions and developments between January and July 2013.

After a relatively quiet start to the year, with no new enforcement actions announced in the first three months of 2013, FCPA enforcement picked up dramatically in the second quarter. Several of these actions involved new charges in long-running matters. For example, in April, Parker Drilling Company acknowledged bribing Nigerian officials to reduce a fine that had been assessed for violations of Nigerian customs laws by its customs broker, Panalpina World Transport (Nigeria) Limited. The Department of Justice (DOJ) and Securities and Exchange Commission (SEC) charged Panalpina (and five other oil and gas companies and subsidiaries) with FCPA violations in November 2010. Also this April, DOJ unsealed charges against four former executives of BizJet International Sales and Support Inc., which itself entered into a deferred prosecution agreement to resolve FCPA charges in March 2012.

In addition, the first half of 2013 saw a number of significant new enforcement actions against both companies and individuals that were unrelated to prior investigations. The DOJ and the SEC entered into nonprosecution agreements with Ralph Lauren Corporation for bribery of Argentinian customs officials. This was the first-ever non-prosecution agreement (NPA) between the SEC and a corporation in an FCPA matter. The DOJ also entered into a deferred prosecution agreement (and the SEC concluded a civil settlement) with the French oil and gas company Total S.A.; the nearly $400 million in monetary penalties and disgorgement in that case represents one of the largest FCPA settlements ever.

In addition, the DOJ brought criminal charges against a number of individuals in the first half of 2013. Notably, Frederic Cilins, a French citizen, was arrested for obstructing an FCPA investigation; according to the government, Cilins attempted to buy documents that were the subject of a grand jury subpoena so that he could destroy them. Likewise, the DOJ filed criminal charges against several executives of broker-dealer Direct Access Partners and a Venezuelan official who allegedly directed trading business to the firm in exchange for a portion of the commission payments. The SEC brought separate civil charges as well.

Thus, after a bit of a lull early in the year, FCPA enforcement appears to be proceeding at a rapid clip in 2013. Both the DOJ and SEC are aggressively pursuing cases against companies and individuals and have succeeded in obtaining significant penalties. It will be interesting to see whether this trend continues in the second half of the year.

FCPA BASICS

The FCPA’s anti-bribery provisions prohibit corrupt payments to foreign officials for the purpose of obtaining or retaining business. Its jurisdiction is broad, extending to all U.S. companies or persons, public companies and foreign companies that are registered with the SEC, and foreign companies or persons that commit an act in furtherance of an improper payment or offer while in the United States. Fines and penalties under the FCPA can be significant, as the $400 million in fines and disgorgement assessed against Total S.A. demonstrates.

The books and records and internal controls provisions of the FCPA work in tandem with the anti-bribery provisions by requiring accurate accounting and reporting of expenditures, as well as adequate internal controls, but they also generally impose obligations to maintain accurate books and records, whether or not any improper payments have been made. The books and records and internal controls provisions apply only to companies registered with the SEC.

Our annual FCPA Business Guide provides an in-depth look at the statutory provisions and frequently asked questions associated with FCPA enforcement. It may be accessed by clicking http://jenner.com/library/publications/11766.

RECENT DOJ OPINION RELEASES

There were no DOJ opinion releases between January and July of 2013.

RECENT DEVELOPMENTS

INCREASE IN NUMBER OF KNOWN DECLINATIONS

Traditionally, the DOJ and the SEC have not publicized declinations in FCPA matters. In the past year, however, much more information about declinations has become available. For example, in April 2012, the DOJ and SEC held a press conference to announce FCPA charges against Garth Peterson, a Morgan Stanley executive in Singapore, and also announced that they would not bring an enforcement action against Morgan Stanley itself, in part because of the company’s exceptionally strong compliance program. The DOJ and SEC’s Resource Guide to the FCPA, published in November 2012, provided six anonymized examples of matters that the agencies declined to pursue. At the same time, the number of known declinations increased markedly in 2012, to 17 between both agencies, from 13 in 2010 and 9 in 2011.

A number of companies including, for example, Deere & Company, Nabor Industries, Zimmer Holdings, DynCorp and Raytheon, reported in public filings during the first half of 2013 that they had received notifications of declinations in FCPA matters by the DOJ, the SEC, or both. Some have publicly stated that the DOJ had cited their internal investigation, voluntary disclosure and compliance program improvements as grounds for the declination.

Although it appears that more declinations are becoming public, it is unclear whether this is the result of an increase in the absolute number of declinations, or of an increase in the willingness of the DOJ and the SEC to issue declination letters (and perhaps of the companies involved to reveal declinations). Although it also seems that a thorough internal investigation, voluntary disclosure and compliance program enhancements can increase the chances of a declination, it is not clear how much of a role these elements play in the declination decision relative to other factors, such as the strength of the legal and factual case against the subject of the investigation and the egregiousness of the alleged misconduct, including the amount of payments to government officials. Thus, even as declinations become more public, much about them remains unknown.

STRAUB AND SHAREF SEC CASES CLARIFY PERSONAL JURISDICTION

Early this year, the U.S. District Court for the Southern District of New York issued two opinions addressing the question of whether, and to what extent, U.S. federal courts have personal jurisdiction over foreign business executives in civil actions brought by the SEC to enforce the FCPA. These decisions have potentially serious consequences for companies that are “issuers” within the meaning of the FCPA – that is, companies that are registered with the SEC – as they would permit FCPA civil enforcement actions against foreign national employees operating entirely outside the United States, except in fairly narrow circumstances.

In one case, SEC v. Straub, et al., the SEC alleged that three executives of the Hungarian telecommunications company Magyar Telekom, Plc. (Magyar), all foreign nationals, had engaged in a scheme to bribe Macedonian officials. According to the SEC, the defendants also signed letters to Magyar’s auditors falsely asserting that they had disclosed all relevant financial information and were unaware of any unlawful activity. The SEC claimed that Magyar’s auditors relied on these false statements in preparing their audit reports, which became part of Magyar’s annual SEC filings.

The SEC brought a civil enforcement action accusing the defendants of violating the FCPA’s anti-bribery provision and with aiding and abetting Magyar’s violations of the FCPA’s requirement that public companies maintain accurate books and records. The defendants moved to dismiss the complaint, arguing principally that the SEC failed to establish that they had sufficient minimum contacts with the United States to justify the court’s exercise of personal jurisdiction over them consistent with the Constitution’s Due Process Clause. The court held that sufficient minimum contacts existed because the defendants made false statements to Magyar’s auditors knowing that those statements likely would affect Magyar’s financial filings with the SEC in the United States.

In another case, SEC v. Sharef, et al., the SEC brought a civil enforcement action against a German national who had worked for the Argentinian subsidiary of Siemens AG. According to the SEC, the defendant participated in a scheme to bribe Argentinian officials, but did not sign any of the false certifications that ultimately resulted in the parent corporation making false SEC filings.

Here, the court concluded that the defendant’s alleged participation in a bribery scheme by a company that filed periodic SEC reports did not, by itself, create sufficient minimum contacts with the United States to justify the exercise of personal jurisdiction. This case was different from Straub, the court ruled, because the defendant neither authorized the alleged bribes, nor participated in the alleged cover-up through misrepresentations to auditors, nor knew of any cover-up.

Taken together, these two cases suggest that U.S. courts will not exercise personal jurisdiction over foreign national employees of an “issuer” in FCPA civil enforcement cases merely because they participated in an alleged bribery scheme overseas, but will do so if they took some action creating a nexus with the United States (such as misrepresentations to auditors leading to false SEC filings).

FCPA-RELATED DEFAMATION SUIT ALLOWED TO PROCEED

In late June, the Texas Court of Appeals reinstated a defamation suit brought by a former employee of Shell Oil Co. (Shell), in which he claimed that the company had falsely reported to government investigators that he had participated in FCPA violations. Writt v. Shell Oil Co., No. 01-11-00201-CV (Tex. App. June 25, 2013). The Writt court held that, under Texas law, Shell’s communications with the Department of Justice did not enjoy absolute immunity from defamation suits, but were actionable if made recklessly or with malice. Under this view, while good-faith reports to investigators would still be protected, companies could be forced to litigate this question rather than avoid lawsuits altogether.

The Writt case arose out of Shell’s internal investigation of the Panalpina matter. The Department contacted Shell in 2007 regarding its involvement with Panalpina, after which the company agreed to launch its own internal investigation of the relationship. In February 2009, Shell informed the government that a former employee, Robert Writt, had recommended reimbursing contractors in Nigeria for what he knew had been bribe payments. Shell’s Nigerian subsidiary settled FCPA charges with the DOJ (along with Panalpina and four other oil and gas companies) in November 2010, entering into a deferred prosecution agreement and agreeing to pay a $30 million criminal penalty. The Writt court reasoned that “defamatory statements … provided by private parties to prosecutorial and law enforcement agencies prior to the initiation of criminal proceedings [] are not subject to the absolute privilege.” Writt, slip op. at 28 (emphasis added). Although criminal proceedings were later brought, the court held that, at the time of Shell’s report to the government, the prospect of criminal proceedings was too remote to bring Shell’s statement within the absolute privilege.

RALPH LAUREN CORPORATION SEC NONPROSECUTION AGREEMENT

Ralph Lauren Corporation (Ralph Lauren) settled FCPA charges with the DOJ and SEC in April 2013, obtaining a non-prosecution agreement from each agency. This was the first SEC non-prosecution agreement obtained by a corporation in an FCPA matter. Although there are some potential benefits to a non-prosecution agreement in the civil (SEC) context, these do not seem as great as in the criminal (DOJ) context. The settlement follows a 2010 SEC initiative, modeled on the DOJ’s practice, to reward voluntary disclosure and extraordinary cooperation in SEC matters with deferred prosecution or non-prosecution agreements, rather than with a traditional resolution, whereby the agency commences a civil or administrative enforcement action. For certain types of entities, including regulated entities, avoiding the formal filing of charges may have particular regulatory benefits (or simply allow them to avoid negative regulatory consequences) in addition to potentially lessening reputational damage. In addition, a non-prosecution agreement allows the corporation to bypass district court review of the settlement.

Overall, though, the benefits of a deferred prosecution or non-prosecution agreement in the civil context are likely not as great as in the criminal context.

Although Ralph Lauren entered into the non-prosecution agreement without admitting or denying liability, the company agreed not to deny, directly or indirectly, the factual basis of any aspect of the agreement. Ralph Lauren, as a condition to the NPA, agreed that it would admit to and not contest the facts set forth in the agreement if there were a violation of the terms of the NPA and the SEC decided to initiate a subsequent enforcement proceeding. In addition, the company did not avoid financial penalties (paying approximately $735,000 in disgorgement and interest) or an indefinite cooperation requirement (agreeing to cooperate with the SEC’s investigation of the matter or any related proceeding by providing documents, witnesses, etc., as required by the government).

Finally, while Ralph Lauren avoided a civil fine, an agreement to pay only disgorgement and interest is not particularly uncommon in traditional SEC FCPA resolutions in matters involving relatively low-level conduct. The fact that the conduct in question was on a smaller scale (payments to customs officials in only one country that were less than $1 million in total over the course of a five-year period) also calls into question how broadly this type of SEC non-prosecution agreement will be utilized in the FCPA context going forward.

WHISTLEBLOWER STATUS UNDER DODDFRANK REQUIRES COMPLAINT TO SEC

The Fifth Circuit has ruled that the Dodd-Frank whistleblower protection provision does not extend antiretaliation protections under the statute to individuals who have reported a complaint to their employer, but not to the SEC. Asadi v. G.E. Energy (5th Cir. July 17, 2013) (No. 12-20522), available at www.ca5.uscourts.gov/opinions/pub/12/12-20522-CV0.wpd.pdf. The plaintiff, formerly an executive of GE Energy in Iraq, filed suit seeking remedies under the Dodd-Frank Act for alleged employment retaliation. He alleged that the company hired an individual associated with a local official in order to influence the official in connection with a contract, and that when he reported the issue to his supervisor and the company’s regional ombudsperson, the company retaliated against and ultimately terminated him. The company moved to dismiss the complaint for failure to state a claim on the grounds that plaintiff was not a whistleblower under the statute because he had not reported his complaint to the SEC and because the statute does not extend to extraterritorial whistleblowing activity.

The Dodd-Frank Act defines a whistleblower as “any individual who provides . . . information . . . to the Commission.” The plaintiff argued that he was entitled to protection under a separate provision of the Act that allows “whistleblowers” to sue their employers for retaliation if their activity is protected by the Sarbanes- Oxley Act, and thus, Dodd-Frank does not specifically require disclosure to the SEC. On appeal, the plaintiff asserted that these provisions relating to whistleblower status were inconsistent, rendering the definition ambiguous, and as a consequence, the Fifth Circuit should defer to the SEC’s regulation construing the provision’s reach as extending beyond just those who report a complaint to the SEC. The Fifth Circuit disagreed, concluding that under Dodd-Frank’s plain language and structure, there is no conflict within the statute, and that the regulation cannot trump the plain language. The appeals court also noted that to accept the proposed interpretation would render moot the antiretaliation whistleblower provisions of the Sarbanes- Oxley Act, which do not require a complaint to the SEC.

RECENT FCPA ENFORCEMENT MATTERS

PETER DUBOIS, JALD JENSEN, BERND KOWALEWSKI, AND NEAL UHL

Department of Justice

Indictments as to Jensen and Kowalewski; Guilty Pleas and Sentencings as to DuBois and Uhl

Filed January 5, 2012; unsealed April 5, 2013

Nature of Conduct: Four executives were charged and two pleaded guilty to FCPA violations for their roles in a scheme to make payments to government officials in Mexico, Panama and Brazil to help secure contracts for BizJet International Sales and Support Inc. (BizJet) to perform aircraft services. Some of these payments were made directly to government officials, and others were funneled through a shell company operated out of Jensen’s residence.

  • Peter DuBois, the former vice president of sales and marketing, pleaded guilty to one count of violating the anti-bribery provision of the FCPA and one count of conspiring to do the same.
  • Jald Jensen, the former sales manager, was indicted on one count of conspiring to violate the anti-bribery provision of the FCPA, six counts of aiding and abetting such a violation, one count of conspiracy to launder money and three counts of aiding and abetting money laundering.
  • Bernd Kowalewski, the former president and CEO, was indicted on one count of conspiring to violate the anti-bribery provision of the FCPA, six counts of aiding and abetting such a violation, one count of conspiracy to launder money and three counts of aiding and abetting money laundering.
  • Neal Uhl, the former vice president of finance, pleaded guilty to one count of conspiring to violate the anti-bribery provision of the FCPA.

The defendants were involved in approving, paying and directing the manner and means of the payments.

These charges stem from the same conduct for which BizJet entered into a deferred prosecution agreement and paid an $11.8 million penalty in 2012.

Amount of Alleged Improper Payments: More than $500,000.

Benefit Obtained: BizJet received contracts to perform aircraft maintenance, repair, and operations (MRO) services for government agencies in Mexico and Panama. According to the deferred prosecution agreement with the company, the value of the benefits BizJet obtained exceeded $7 million.

Type of Resolution and Sanction: Kowalewski and Jensen are believed to remain abroad. DuBois and Uhl were sentenced to probation and eight months of home detention, which represents a significant reduction from their guidelines sentences, based on their cooperation. Uhl also agreed to pay a $10,000 fine.

Of Note: Although the charges and guilty pleas relating to these four executives were unsealed in April 2013, they were filed and entered in January 2012, before the company resolved the charges against it in March 2012.

IN THE MATTER OF KONINKLIJKE PHILIPS ELECTRONICS N.V.

Securities and Exchange Commission

Offer and Settlement

April 5, 2013

Nature of Conduct: Koninklijke Philips Electronics N.V. (Philips), a Netherlands-based electronics maker, entered into an Offer and Settlement with the SEC relating to improper payments allegedly made by its Polish subsidiary (Philips Poland) to governmentemployed healthcare officials in order to secure public tender offers from Polish healthcare facilities seeking to purchase medical equipment. From 1999 through 2007, representatives of Philips Poland entered into arrangements with officials of various Polish healthcare facilities whereby Philips submitted the technical specifications of its medical equipment to officials drafting the tenders who incorporated the specifications of Philips’ equipment into the contracts. Incorporating the specifications of Philips’ equipment in the tenders’ requirements greatly increased the likelihood that Philips would be awarded the bids. Certain of the healthcare officials involved in the arrangements with Philips also decided to whom to award the tenders, and when Philips won the contracts, the officials were given improper payments by employees of Philips Poland. At times, Philips Poland employees also kept a portion of the improper payments as a “commission.” The Philips Poland employees involved in the improper payments often utilized a third-party agent to assist with the improper arrangements and payments to Polish healthcare officials. The improper payments made by employees of Philips Poland to Polish healthcare officials were falsely characterized and accounted for in Philips’ books and records as legitimate expenses. At times those expenses were supported by false documentation created by Philips Poland employees and/or third parties.

Amount of Alleged Improper Payments: The improper payments made by employees of Philips Poland to the Polish healthcare officials usually amounted to 3% to 8% of the contracts’ net value.

Benefit Obtained: Philips Poland’s improper payments to healthcare officials related to at least 30 public tenders over a period of eight years.

Type of Resolution and Sanction: Philips entered into an Offer and Settlement with the SEC to resolve books and records and internal controls violations, agreeing to pay $4.5 million in disgorgement and prejudgment interest.

Of Note: The SEC described Philips as having “selfreported” even though Philips went to U.S. authorities to report its conduct only after the Polish subsidiary was being prosecuted by Polish authorities for misconduct in government contracting. According to the SEC settlement document, the individuals in the Polish prosecution were indicted for violating laws related to public tenders for the purchase of medical equipment, and the Polish indictment described the same payments that led to the SEC’s FCPA charges against Philips.

PARKER DRILLING COMPANY

Department of Justice and Securities and Exchange Commission

Deferred Prosecution Agreement and Civil Settlement

April 16, 2013

Nature of Conduct: Panalpina World Transport (Nigeria) Limited, working on behalf of Parker Drilling Company (Parker Drilling), fraudulently avoided paying customs fees by submitting false paperwork claiming that Parker Drilling’s rigs had been exported and reimported into Nigeria, when in fact, they remained in place. Based on that conduct, a Nigerian government commission determined Parker Drilling had violated Nigeria’s customs laws and assessed a $3.8 million fine. To avoid paying the fine, Parker Drilling allegedly contracted through its law firm to retain an intermediary agent who used the money he received to, among other things, entertain government officials. Senior executives allegedly recorded the intermediary agent’s payments in the company’s books with vague explanations. Subsequently, the Nigerian commission reduced the fine against Parker Drilling to $750,000 without a factual basis for doing so. The DOJ charged Parker Drilling with violating the FCPA’s anti-bribery provision, and the SEC charged the company with violations of the FCPA’s books and records and internal controls provisions.

Amount of Alleged Improper Payments: From January to May 2004, Parker Drilling paid an agent $1.25 million, which the agent reportedly spent on, among other things, entertaining government officials.

Benefit Obtained: The customs fine against the company was reduced by $3.05 million. Resolving the dispute with the government commission also allowed Parker Drilling to nationalize and then sell its Nigerian rigs, but the filings do not quantify that benefit.

Type of Resolution and Sanction: Parker Drilling entered into a three-year deferred prosecution agreement with the DOJ and agreed to pay a $11.76 million penalty. In entering into the agreement, the DOJ considered Parker Drilling’s extensive, multi-year investigation and widespread remediation. As part of the settlement with the SEC, Parker Drilling agreed to pay $3.05 million in disgorgement and $1.04 million in prejudgment interest.

Of Note: The investigation of Parker Drilling stemmed from the previous investigation of Panalpina (and other oil and gas companies and subsidiaries), which resulted in criminal penalties totaling $156 million.

FREDERIC CILINS

Department of Justice

Criminal Complaint

April 15, 2013

Nature of Conduct: Frederic Cilins, a citizen of France, was charged with obstructing an investigation into whether a mining company paid bribes to obtain mining rights in the Republic of Guinea. Cilins worked as an agent for a non-U.S. business entity that media reports identify as BSG Resources Ltd., which is in the mining industry. BSG’s Guinean subsidiary allegedly entered into several contracts with a company owned at the time by a Guinean official’s wife, now a cooperating witness. The contracts provided, among other things, that the wife’s company would assist the Guinean subsidiary in obtaining permits for mining research. The complaint alleges that Cilins offered to pay the wife for the original contracts, which were the subject of a grand jury subpoena, so that he could destroy them, and to sign a statement asserting that there had been no such contracts. Shortly after the official’s wife asked for an advance payment, Cilins was arrested carrying $20,000. Cilins was charged with tampering with a witness, obstructing a criminal investigation and destroying or falsifying documents in a federal investigation.

Amount of Alleged Improper Payments: The Guinean subsidiary allegedly entered into contracts with the official’s wife’s company through which it paid at least $7 million, in addition to percentages of the Guinean subsidiary’s capital and stock. Cilins allegedly offered the official’s wife a payment of up to $5 million to provide him with the original contracts.

Benefit Obtained: Lucrative mining rights in the Simandou region of Guinea.

Type of Resolution and Sanction: Cilins has pleaded not guilty, and the case is ongoing.

LAWRENCE HOSKINS, FREDERIC PIERUCCI, WILLIAM POMPONI, AND DAVID ROTHSCHILD

Department of Justice

Indictments as to Hoskins and Pomponi; Indictment and Guilty Plea as to Pierucci; Information and Guilty Plea as to Rothschild

November 2, 2012; November 27, 2012; April 16, 2013; April 30, 2013; July 29, 2013; July 30, 2013

Nature of Conduct: Four current and former executives of a U.S. subsidiary of a French power company (reported by the media to be Alstom, S.A.) allegedly participated with other employees and a Japanese consortium partner in a scheme to secure a valuable power contract by using outside consultants to make payments to Indonesian officials. The DOJ further alleged that when Hoskins, Pierucci, Pomponi and others determined that the first consultant hired was “not effectively bribing key Indonesian officials,” they hired a second consultant and paid him an unusually large amount up-front so he could “get the right influence.”

  • Lawrence Hoskins, former senior vice president for the Asia region, was charged in a second superseding indictment filed on July 30, 2013, with one count of conspiring to violate the anti-bribery provision of the FCPA, six counts of violating the anti-bribery provision of the FCPA, one count of conspiracy to launder money and four counts of money laundering.
  • Frederic Pierucci, an executive and former vice president of global sales, pleaded guilty on July 29, 2013, to one count of conspiracy to violate the antibribery provision of the FCPA and one count of violating the FCPA. Pierucci, a French national, was initially indicted on November 27, 2012, but the indictment was not unsealed until April 16, 2013, two days after he was arrested at a New York airport. Two weeks later, on April 30, 2013, the DOJ filed a superseding indictment. In addition to the charges to which Pierucci pleaded guilty, he had faced additional counts of violating the FCPA, conspiring to launder money and money laundering.
  • William Pomponi, former vice president of regional sales, was initially indicted on April 30, 2013, but also charged, along with Hoskins, in a second superseding indictment filed on July 30, 2013. Pomponi was charged with one count of conspiring to violate the anti-bribery provision of the FCPA, six counts of violating the anti-bribery provision of the FCPA, one count of conspiracy to launder money and four counts of money laundering.
  • David Rothschild, former vice president of regional sales, pleaded guilty on November 2, 2012, to one count of conspiracy to violate the anti-bribery provision of the FCPA. Rothschild was involved only until 2002, when Pomponi allegedly took over his role on the project. Because the guidelines sentencing range for Rothschild exceeded the statutory maximum sentence of five years’ imprisonment, the government agreed to recommend a five-year sentence. The plea agreement does not address the recommended amount for a fine. The documents were unsealed on April 16, 2013.

Amount of Alleged Improper Payments: Payments to the first consultant allegedly totaled $666,880 between 2005 and 2009, and of that amount, $360,000 was allegedly wired from the consultant’s bank account in Maryland to a bank account in Indonesia to pay a member of the Indonesian Parliament. The amounts of the payments to the second consultant are not identified. Benefit Obtained: The contract obtained was valued at approximately $118 million.

Type of Resolution and Sanction: Hoskins and Pomponi are contesting the charges. Pierucci and Rothschild pleaded guilty and are awaiting sentencing. Of Note: Media reports suggest that a consortium partner involved in the conduct, described as a trading company headquartered in Japan, is Marubeni Corporation. In 2012, Marubeni entered into a two-year deferred prosecution agreement for FCPA violations in Bonny Island, Nigeria.

URIEL SHAREF

Securities and Exchange Commission

Civil Settlement

April 15, 2013

Nature of Conduct: Uriel Sharef, a former officer and board member of Siemens AG and a dual citizen of Israel and Germany, was indicted in 2011, for allegedly participating in Siemens’ decade-long scheme to bribe senior officials in Argentina in order to retain a government contract to provide national identity cards to all Argentinian citizens. Sharef was the most senior officer charged in connection with the scheme. He allegedly met with payment intermediaries in the United States and enlisted subordinates to conceal the payments by circumventing the company’s internal accounting controls. The SEC charged Sharef with knowingly violating the books and records and internal controls provisions of the FCPA and aiding and abetting Siemens’ books and records and internal controls violations. In addition, the DOJ charged Sharef with conspiracy to violate the FCPA’s anti-bribery provision, conspiracy to commit wire fraud, and substantive money laundering and wire fraud offenses.

Amount of Alleged Improper Payments: According to the SEC, the scheme involved more than $100 million in payments to government officials, $31.3 million of which were paid after Siemens became subject to U.S. securities laws by becoming an issuer. Sharef allegedly agreed to make $27 million of those payments.

Benefit Obtained: The payments were made to secure and then retain a $1 billion contract to produce national identity cards for Argentinian citizens.

Type of Resolution and Sanction: Without admitting or denying the charges against him, Sharef agreed to a civil settlement with the SEC enjoining him from violating the anti-bribery and internal controls provisions of the FCPA. He also agreed to pay a civil penalty of $275,000, the second largest civil penalty assessed against an individual in an FCPA case. The DOJ’s case against Sharef remains pending.

Of Note: Siemens AG settled the charges against it in 2008 by paying a total of more than $1.6 billion in fines, penalties and disgorgement to the DOJ, SEC and the German government.

RALPH LAUREN CORPORATION

Department of Justice and Securities and Exchange Commission

Non-Prosecution Agreements

April 22, 2013

Nature of Conduct: The manager of Ralph Lauren Corporation’s (Ralph Lauren) subsidiary in Argentina bribed customs officials with payments and gifts over a five-year period in order to obtain paperwork necessary for goods to clear customs (including prohibited goods) or avoid inspections of goods. The payments were made through a customs clearance agency, which created fake invoices to justify the improper payments. During the five-year period in which the payments were made, the company did not have an anti-corruption program and did not provide any anti-corruption training or oversight for its Argentinian subsidiary.

Amount of Alleged Improper Payments: Approximately $568,000 in payments and gifts of perfume, dresses and handbags.

Benefit Obtained: Favorable treatment during customs process.

Type of Resolution and Sanction: Ralph Lauren entered into non-prosecution agreements with both the DOJ and SEC, agreeing to pay an $882,000 penalty to the former and $734,846 in disgorgement and prejudgment interest to the latter.

Of Note: This was the first SEC non-prosecution agreement obtained by a corporation in an FCPA matter.

PAUL G. NOVAK

Department of Justice

Sentencing

May 3, 2013

Nature of Conduct: Novak was sentenced for his role in a bribery scheme involving Willbros International, Inc. (Willbros), a subsidiary of Willbros Group Inc. Novak and his alleged co-conspirators (former Willbros executives Kenneth Tillery, Jason Steph, Jim Bob Brown and others) agreed to pay more than $6 million in bribes to government officials in Nigeria. They facilitated the payments by causing Willbros to enter “consultancy agreements” with two consulting companies Novak represented, purportedly in exchange for consultancy services. In return, Willbros secured a natural gas pipeline system in the Niger Delta. The indictment charged Novak with one count of conspiracy to violate the FCPA’s anti-bribery provision, two counts of violating the FCPA’s anti-bribery provision and one count of conspiring to launder money.

Amount of Alleged Improper Payments: More than $6 million.

Benefit Obtained: Contracts related to a natural gas pipeline system in the Niger Delta valued at approximately $387 million.

Type of Resolution and Sanction: Novak had pleaded guilty in 2008 to one count of conspiring to violate the anti-bribery provision of the FCPA and one count of violating the anti-bribery provision of the FCPA. He was sentenced to 15 months’ imprisonment followed by two years of supervised release and ordered to pay a $1 million fine.

Of Note: Willbros and Willbros Group Inc. entered into a deferred prosecution agreement in 2008 and agreed to pay a $22 million penalty. The companies satisfied their obligations under the agreement, and the charges were dismissed in 2012. Jim Bob Brown and Jason Steph were sentenced for their roles in the conspiracy in 2006 and 2007, respectively. Alleged co-conspirator Kenneth Tillery was charged in an indictment unsealed in 2008, but remains a fugitive.

TOTAL S.A.

Department of Justice and Securities and Exchange Commission

Deferred Prosecution Agreement and Civil Settlement

May 29, 2013

Nature of Conduct: Total, S.A. (Total), a French oil and gas company, made corrupt payments to the National Iranian Oil Company (NIOC) to obtain development contracts in 1995 and 1997. Seeking to re-enter the Iranian oil and gas market in 1995, Total began negotiating with an Iranian official who served as the chairman of an Iranian state-owned-and-controlled engineering company. Total entered into a purported consulting agreement with the engineering company, pursuant to which Total made corrupt payments to an intermediary designated by the official, to secure NIOC’s signing a development agreement with Total for two oil and gas fields, Sirri A and E. Total was awarded the development contract and made approximately $16 million in corrupt payments pursuant to the consulting contract.

In 1997, Total sought to negotiate a contract with NIOC to develop a portion of the South Pars gas field and again entered into a purported consulting agreement for the purpose of making corrupt payments. In September 1997, Total was awarded a 40 percent interest in developing phases two and three of the South Pars field and over the following seven years made approximately $44 million in corrupt payments.

Amount of Alleged Improper Payments: Approximately $60 million.

Benefit Obtained: Contracts for the development of oil and gas fields (Sirri A and E and a portion of South Pars).

Type of Resolution and Sanction: Total agreed to pay a $245.2 million monetary payment to the DOJ, which entered into a three-year deferred prosecution agreement with the company. Total also agreed to cooperate with the department and foreign law enforcement and to retain an independent corporate compliance monitor for a period of three years. In addition, Total entered into a settlement agreement with the SEC requiring it to pay an additional $153 million in disgorgement and prejudgment interest.

Of Note: Charges for violations of French law were also recommended by the prosecutor of Paris (François Molins, Procureur de la République) of the Tribunal de Grande Instance de Paris.

TOMAS ALBERTO CLARKE BETHANCOURT, IURI RODOLFO BETHANCOURT, JOSE ALEJANDRO HURTADO, HAYDEE LETICIA PABON, MARIA DE LOS ANGELES GONZALEZ DE HERNANDEZ, AND ERNESTO LUJAN

Department of Justice and Securities and Exchange Commission

Civil and Criminal Complaints

Criminal Complaints Filed Under Seal March 12, 2013; Unsealed June 10, 2013

Civil Complaints Filed May 7, 2013, and June 12, 2013

Nature of Conduct: Three employees of a U.S. brokerdealer, Direct Access Partners (DAP) and a senior official in the Venezuelan state economic development bank, Banco de Desarrollo Económico y Social de Venezuela (BANDES) were charged with FCPA violations for their alleged roles in a bribery scheme related to the direction of trading business from BANDES to DAP. The SEC filed civil charges against the former employees and two other individuals as described below.

  • On March 12, 2013, criminal charges were brought against Tomas Alberto Clarke Bethancourt (Clarke), Jose Alejandro Hurtado (Hurtado) and María de los Ángeles González de Hernandez (González) for their roles in the scheme. Clarke and Hurtado were members of DAP’s Global Markets Group, which offered fixed-income services to institutional clients, including BANDES. González was a BANDES official who oversaw the development bank’s overseas trading activity. The complaint alleges that González directed trading business to DAP in exchange for a percentage of the commission payments that DAP earned on the deals. Some of the trades executed by DAP for BANDES allegedly made no sense from a business perspective and were entered into only to earn commissions that the co-conspirators then split. In addition, payments to González were disguised through use of intermediary corporations and offshore accounts. Clarke and Hurtado allegedly helped devise the commission split and also received a percentage of the proceeds. According to the separately filed SEC complaint, see infra, Hurtado served as the intermediary between DAP and González: he was paid more than $6 million in kickbacks from DAP – disguised as salary payments – and he remitted a portion of that money to González. Hurtado’s wife, Haydee Leticia Pabon, also received approximately $8 million in markups or markdowns on BANDES trades that were funneled to her from DAP in the form of sham finders’ fees. Ernesto Lujan, a managing partner at DAP and the branch manager of its Miami offices who established the Global Markets Group, oversaw the scheme. González allegedly received a total of at least $5 million in improper payments. Clarke, Hurtado and González were arrested in Miami on May 3, 2013, and Lujan was arrested on June 12, 2013. Clarke, Hurtado and Lujan were charged with conspiracy to violate the FCPA and the Travel Act, as well as substantive violations of both statutes. González was charged with conspiracy to violate the Travel Act and violation of the Travel Act.
  • The SEC charged Clarke, Hurtado and Lujan with fraud for their roles in the scheme on May 7 and June 12, 2013. On June 12, 2013, the SEC also brought fraud charges against Iuri Rodolfo Bethancourt (who lives in Panama), alleging that he received more than $20 million in fraudulent proceeds from DAP through a Panamanian shell company, a portion of which he then paid González. Hurtado’s wife, Haydee Leticia Pabon, was also charged with fraud on May 7, 2013, for her role in the scheme.

Benefit Obtained: The BANDES trades generated more than $66 million in revenue for DAP from transaction fees.

Amount of Alleged Improper Payments: Total payments to González were allegedly in excess of $5 million.

Type of Resolution and Sanction: The SEC’s complaint charges Clarke, Bethancourt, Hurtado, and Pabon with fraud and seeks final judgments that would require them to return ill-gotten gains with interest and pay financial penalties. The case has not been charged as an FCPA matter but rather involves other types of fraud charges under the federal securities laws. The SEC’s investigation is ongoing. The criminal cases against González, Clarke, Hurtado and Lujan are pending.