BroomThe Brazilian corruption scandal took a new turn last week, when the Brazilian government announced that it was investigating the country’s health ministry and the state-owned bank Caixa Econômica Federal (Caixa). As reported by Rogerio Jelmayer and Luciana Magalhaes in the Wall Street Journal (WSJ), in an article entitled “Corruption Scandal in Brazil Gets Bigger”, the schemes were similar to those used in the Petrobras scandal, where inflated contracts were awarded to contractors who kick backed the overcharges to those in position to award the business.

This expansion of Brazilian government investigation is also the first reported instance of companies outside the energy sector or those doing business with the Brazilian state-owed enterprise Petrobras being investigated by the Brazilian government. Over the years there have been several Foreign Corrupt Practices Act (FCPA) enforcement actions regarding US companies doing business in Brazil. With this expansion of the Petrobras corruption scandal to other government departments and state-owned entities, a new chapter may be opening. This new chapter may bring not only Brazilian domestic bribery and corruption scrutiny but also draw the attention of US or UK regulators, such as the Department of Justice (DOJ), Securities and Exchange Commission (SEC) or the UK Serious Fraud Office (SFO).

In the health ministry the area of contracts under investigation were those for advertising. The WSJ article said, “the cost of advertising contracts was inflated by as much as 10%, prosecutors said, with the surplus also passed along to politicians. The health ministry said all its advertising contracts meet the legal requirements, and it will investigate the allegations and cooperate with police and prosecutors.” It certainly is comforting when the government says it will cooperate with investigators.

But perhaps more interesting was the timing of the allegations against the country’s third largest state-owned bank Caixa. While the allegations around the scope and extent of the bribery were similar to those made against the Brazilian health ministry, the declarations of these new investigations coincided with the announcement last week by the government Finance Minister Joaquim Levy and Caixa Chief Executive Officer (CEO) Miriam Belchior for “an initial public offering [IPO] in the insurance joint venture it has with French insurer CNP Assurances.”

What do you think the comfort level will be for institutional investors about now in this IPO? I wonder if under IPO rules and regulations in Brazil, whether the CEO must certify either the financial statement as accurate or that there is no evidence of corruption in the organization? Even those in Brazil recognize the gravity of these allegations against Caixa. Luis Santacreu, a banking analyst at the Brazilian rating agency Austin Ratings, said that he thought this announcement would make the IPO more difficult and “the allegations against Caixa show it needs to improve its governance.”

These two developments demonstrate the difficulties that international companies may have in doing business in Brazil going forward. It is not difficult to believe that a country sweep on those doing business in Brazil, with the Brazilian government or with Brazilian state-owned enterprises, may well be coming. Given the recent 2014 World Cup and the upcoming 2016 Olympics, it would not seem too great a stretch for the DOJ or SEC to begin to look at US companies with significant amounts of commerce with and in Brazil.

While we have not seen evidence of country sweeps to-date, there has been evidence of industry sweeps in FCPA enforcement. The FCPA Professor, in a blog post entitled “Industry Sweeps”, posted an article from FCPA Dean Homer Moyer, entitled “The Big Broom of FCPA Industry Sweeps”. In his article, Moyer said that an industry sweep is the situation where the DOJ and/or SEC will focus “on particular industries – pharmaceuticals and medical devices come to mind — industry sweeps are investigations that grow out of perceived FCPA violations by one company that enforcement agencies believe may reflect an industry-wide pattern of wrongdoing.” Moyer further wrote, “Industry sweeps are often led by the Securities and Exchange Commission (“SEC”), which has broad subpoena power as a regulatory agency, arguably broader oversight authority than prosecutors. They are different from internal investigations or traditional government investigations, and present different challenges to companies. Because the catalyst may be wrongdoing in a single company, agencies may have no evidence or suspicion of specific violations in the companies subject to an industry sweep. A sweep may thus begin with possible cause, not probable cause. In sweeps, agencies broadly solicit information from companies about their past FCPA issues or present practices. And they may explicitly encourage companies to volunteer incriminating information about competitors.”

As a compliance professional, one of the key takeaways from the Brazilian corruption scandal is that you should take a very hard and detailed look at your company. With the spread of Brazilian investigations around corruption, we can see that these scandals are not be limited to only the energy or energy-related service industry. One of the first things you can begin to do is to review the list of third parties who might work with the Brazilian government or with Brazilian state-owned enterprises. You should begin by asking such questions as:

  • What is the ownership of the third party? Is there a business justification for the relationship?
  • Is there anyone in the company who is responsible for maintaining the relationship? Is there ongoing accountability?
  • How is the relationship being managed?
  • Are you engaging in any transaction monitoring?
  • Are you engaging in any relationship monitoring?
  • What is the estimated or budgeted size of the spend with the third party?

While the GlaxoSmithKline PLC (GSK) investigation has reverberated throughout the China, I think that the Brazilian corruption scandals will be with us for some time. As bad as it seems about now, and it certainly appears bad, there are many lessons that the compliance practitioner can not only draw from but use for teaching moments within your company. For if you are doing business with the Brazilian government or with Brazilian state-owned enterprises it may not be “if you are subject to a FCPA sweep” but only “when”.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2015

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