In this episode, Matt Kelly and I take a deep dive into the first Declination issued by the DOJ in the era of the Trump Administration, which was issued by the DOJ on June 16, 2017, when it issued a Declination to Linde North American Inc. and Linde Gas North America LLC (collectively “Linde”). The case presented several interesting factors which merit consideration so we are presenting lessons to be learned for the Chief Compliance Officer (CCO) or compliance practitioner.

The Bribery Scheme

Linde acquired Spectra Gases, Inc. (Spectra Gases) in October 2006. In November 2006, it purchased certain assets from the National High Technology Center (NHTC) of the Republic of Georgia. One of the keys to this purchase was a piece of equipment called the ““boron column,” which were used to produce boron gas.” Sales of boron gas after the acquisition helped fund the purchase price and payout to Spectra executives who stayed on after Linde purchased Spectra Gases.

Unfortunately, the three Spectra executives who stayed on were in cahoots with corrupt offices from the NHTC who made the sales agreement with Linde. Part of the Earn-Out by the former Spectra (now Linde) officials was paid to these corrupt government officials, both directly and through certain third parties. But the funding scheme to pay the bribes was quite creative and demonstrates once again to the compliance practitioner the myriad ways in which funds can be generated to pay bribes.

For reasons not made clear, Linde did not purchase the boron column outright but allowed the former Spectra executives and the corrupt NHTC officials to form two new entities to own and operate the boron column, Spectra Investors LLC (Spectra Investors) and Spectra Gases Georgia, which was wholly owned by Spectra Investors. Spectra Investors was owned 51% by the corrupt NHT officials and 49% by the Spectra Gases executives who now worked for Linde. Spectra Gases Georgia was formed as a separate management company, by the NHTC officials, which was claimed to provide services to Spectra Investors for which it would receive recompense. Of course, there was no evidence of services being delivered under this arrangement as it was simply a mechanism to funnel monies to the corrupt officials.

As a result of the ownership structure of Spectra Investors, with 51% being owned by corrupt NHTC officials and the management services contract, the corrupt NHTC officials received “approximately 75% of the profits generated by the boron column” while Spectra Gases received 25% of the profits. Clearly even with bribery and corruption, it was a bad business deal. In January 2010, Linde dissolved Spectra Gases and became its successor-in-interest and at some point later discovered the illegal conduct. Prior to the time of the dissolution, Spectra Gases had “received approximately $6,390,000”. After Linde became the direct owner, it “received approximately $1,430,000 as a result of the corrupt” actions.

The Declination

While there is a dearth of fact about how the matter came to the attention of Linde and when it disclosed the matter to the DOJ, the decision to decline to prosecute was based on the following factors: (1) Linde’s timely self-disclosure; (2) a “thorough, comprehensive and proactive investigation” [emphasis supplied]; (3) Linde’s full cooperation and meeting the Yates Memo requirement for disclosing all known relevant facts about the “individuals involved in or responsible for the misconduct”; (4) full profit disgorgement; (5) Linde’s enhancement of its compliance program and internal controls; and (6) Linde’s full remediation, including termination or discipline of the three Spectra executives and lower-level employees involved in the misconduct; termination of the fraudulent management contract between the corrupt NHTC officials and Spectra Investors and termination of the Earn-Out payment due to the former Spectra executives who became Linde employees.

Lessons Learned

This was yet another Foreign Corrupt Practices Act (FCPA) action where a company performed insufficient due diligence in the acquisition phase. The timing of the Linde purchase of Spectra Gases and Spectra Gases’ purchase of the income producing assets is too close in time to be a coincidence. It would certainly appear that Linde purchased Spectra Gases to facilitate its acquisition of the boron column and other assets. If your company is going to make such a multi-step acquisition, you must perform due diligence on all the actors and the assets involved.

The Byzantine corporate structure created for the ownership of the boron column, its operation and management contract are clear red flags that any CCO should sniff out immediately. While I am sure the internal corporate excuse for this clear ruse was the ubiquitous ‘tax considerations’; every such transaction should be reviewed by compliance as well. Anytime there is more than one entity to accomplish one task, there is the possibility of fraud present. Further, it is not clear how Linde could not have been aware of the ownership interests of a company which it ultimately controlled. It would seem that the company did not even make any inquiry.

Even in 2006, the Republic of Georgia’s reputation for bribery and corruption was quite high. The 2006 Transparency International-Corrupt Perceptions Index (TI-CPI) listed Georgia at 99 out of 176 countries listed so that alone warranted red flag scrutiny. If you are purchasing an entity in a country with such well known affinity for corruption, extra care is warranted. Perhaps back in 2006, Linde did not view the FCPA as something which it would deal with in such a situation.

Yet even with all the apparent miss-steps and non-steps of compliance, the company was able to secure a declination from the DOJ. While there may be some additional penalties or sanctions by the Securities and Exchange Commission (SEC) for the failures of internal controls, the result obtained by Linde was certainly a superior result. The company would seem to have met the four pillars under the FCPA Pilot Program through (a) self-disclosure, (b) extraordinary cooperation, (3) full remediation, and (d) profit disgorgement. Interestingly, the profit disgorgement in this case would appear to have been beyond the five year of limitations for profit disgorgement under the recent Supreme Court decision in Kokesh. If there is a FCPA enforcement action brought by the SEC perhaps additional facts will be recited in any resolution documents.

Nevertheless, kudos are due to Linde and its counsel for obtaining this declination. Every CCO should study it for both the superior result received and underlying facts to see if you face anything similar in the Republic of Georgia or elsewhere.

There are multiple ways to deal with an issue which can provide known and unforeseen benefits. Today we celebrate one of those as it was on this day in 1944, that President Franklin Roosevelt signed the GI Bill into existence. The primary purpose of the GI Bill was to avoid a relapse into the Great Depression after the war ended, provide GIs with a smoother economic transition back into US society and, most particularly, to prevent a repeat of the Bonus March of 1932, when 20,000 unemployed veterans and their families flocked in protest to Washington. The destruction of their makeshift camp and dispersal of the Bonus Marches was a black eye on the Hoover administration and contributed to his defeat in 1932.

However, the GI Bill ended up achieving much more than even these laudable goals. An entire generation of returning GIs (including my father) went to college on the GI Bill. Before the war, only 10-15% of US males went to college but the GI Bill opened this educational opportunity up with interest loans, business loans and unemployment compensation. In many ways the American economic miracle of the last half of the 20th century was fueled by this signature government effort.

I thought about the numerous effects of the GI Bill in the context of the fight against bribery and corruption. The Foreign Corrupt Practices Act (FCPA) is well known as a supply side law focusing on the bribe payor’s conduct. It criminalizes the offer to or bribe of a foreign government official or employee of a state-owned enterprise. Yet for every bribe paid there are multiple parties involved and multiple illegal acts engaged in by a number of these parties. Put simply, the money must go somewhere. While it is possible to hide millions of dollars in illegal bribe payments between your mattresses or in false wall of your home as recently occurred in Nigeria where CNN reported, “The Nigerian anti-corruption unit discovered more than $43 million in US dollars at an upscale apartment in Lagos”, where the money was ““neatly arranged” inside cabinets hidden behind wooden panels of a bedroom wardrobe.” Of course, there were reports earlier this year of the discovery of $9.7MM, in fireproof safe in a house owned by Dr. Andrew Yakubu who was the former Group Managing Director of the Nigeria National Petroleum Corporation (NNPC).

More typically money is laundered the more traditional way, through a bank. Rebecca R. Ruiz, reporting in a New York Times (NYT) article, entitled “Banker Admits to Money Laundering in FIFA Case”, discussed former Swiss banker, Jorge Luis Arzuaga, a former managing director at the Swiss bank Julius Baer, who pled guilty last week to money laundering conspiracy in conjunction with the ongoing FIFA corruption scandal. Arzuaga admitted to arranging the transfers of more than $25 million in bribes and other corrupt payments from 2010 to 2015 for corrupt FIFA officials. This is the first guilty plea in the plethora of service providers who facilitated the massive corruption scandal engaged in by FIFA officials. His former employer, the bank Julius Baer, which is under an unrelated Deferred Prosecution Agreement (DPA) for helping wealthy Americans evade taxes, is also under investigation for its role in helping corrupt FIFA officials to launder money obtained through illegal bribery and corruption.

Arzuaga’s money laundering was for one of the defendants who has pled guilty, the Argentinian sports marketing firm Torneos y Competencias and Julio Grondona, a longtime FIFA and Argentine soccer association official who died in 2014. Being a professional Swiss banker, Arzuaga was quite diligent in the services he provided. Ruiz noted, “The indictment said Mr. Arzuaga also arranged for money in accounts held by Mr. Grondona to be distributed to his heirs after his death.”

In a statement, Richard Weber, chief of the Internal Revenue Service (IRS) criminal investigation division said “We are pursuing the bad actors — including soccer officials, sports marketing companies, financial institutions and their bankers — who have intentionally and criminally violated the law by laundering illegal proceeds. Prospective private bankers and relationship managers should take note of Mr. Arzuaga’s conviction and think twice about the consequences of conspiring to launder money.”

Azuaga’s guilty plea not only opens a new front in the FIFA corruption scandal but also shines a light on services providers who help illegal actors. If bankers can be prosecuted, what about others who might facilitate such conduct? This expansion of the FIFA corruption scandal may portend a new and most welcome chapter in anti-corruption enforcement.

Combatting corruption with other tools, the Wall Street Journal (WSJ) reported last week, in an article entitled “U.S. Lawsuit Links $2.2 Billion Deal to Malaysian 1MDB Scandal”, the Department of Justice (DOJ) filed suit involving a $2.2 billion purchase of a US energy company, Coastal Energy by the Abu Dhabi sovereign wealth fund. The allegation is that $50 million of the purchase price was provided by Jho Low, who is alleged to have been involved in the looting of the 1MDB fund. Reports indicate that for his $50 million contribution to the purchase price, a shell company controlled by Low received recompense in the amount of $350 million one week later. In a lawsuit, seeking forfeiture of the proceeds of the sale, the DOJ dryly noted, “The commercial basis for this nearly immediate 600% return on investment is not immediately apparent.”

The WSJ article went on to note, the lawsuit “provided detailed allegations that in 2013 and 2014 funds allegedly stolen from 1MDB were funneled via a series of bank accounts and shell companies to partly finance the purchase of Coastal Energy, a Houston firm controlled at the time by legendary Texas oilman Oscar Wyatt Jr. The lawsuit seeks to seize proceeds from the Coastal deal, but not Coastal assets.” Additionally, “The Justice Department is interested in the Coastal deal because it says the $50 million Mr. Low invested originally came from 1MDB. The Justice Department on Tuesday moved to seize London property that it says was bought with some of the $350 million proceeds of the Coastal deal. The Justice Department has questioned people involved in the deal in recent months, according to people familiar with the investigation.”

The asset forfeiture lawsuit is also interesting as it shows that companies must now not only know with whom they are doing business but the source of money which forms the basis of a transaction. This had been a well-known requirement in banking around KnowYourCustomer (KYC) and investigations of business partners and sales agents. However, this new approach for acquisitions of organizations should put all compliance professionals and business advisors on notice as to the provenance of the funds involved and the ownership structure of purchasers.

 

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, 2017

Today, I continue my yearlong tribute to what I believe to be the greatest album in the history of Rock & Roll, Sgt. Pepper’s Lonely Hearts Club Band, by considering what I always thought of as most poignant track of album, She’s Leaving Home. The song was inspired by an actual runaway tale. In the Rolling Stone series ‘Beatles’ ‘Sgt. Pepper’ at 50’ article entitled Meet the Runaway Who Inspired ‘She’s Leaving Home’, the song was based on a story about Melanie Coe who ran away from home at the age of 17 in 1967. She was a girl with “everything,” including her own Austin 1100 car and a “wardrobe full of clothes,” both of which were left behind.” Her father was quoted in a Daily Mail piece at the time “I cannot imagine why she should run away”; “She has everything here … even her fur coat.”

Paul McCartney said in his 1997 biography, Many Years From Now, “We’d seen a story in the newspaper about a young girl who’d left home and not been found. “There were a lot of those at the time, and that was enough to give us a story line. So I started to get the lyrics – she slips out and leaves a note and then the parents wake up – It was rather poignant.” John Lennon added some of the most poignant lines of the song based upon “scornful lines from his stern Aunt Mimi, who had raised him as a child. “Paul had the basic theme, but all those lines like, ‘We sacrificed most of our lives, we gave her everything money could buy, never a thought for ourselves …’ those were the things Mimi used to say””.

I thought about the poignancy of the song when I read about the latest scandal to rock the UK banking institution Barclays. BBC online reported that Barclays and four former executives have been charged with fraud over their actions in the 2008 financial crisis. The four individuals include former chief executive John Varley, “former senior investment banker Roger Jenkins, Thomas Kalaris, a former chief executive of Barclays’ wealth division, and Richard Boath, the ex-European head of financial institutions, have all been charged with conspiracy to commit fraud in the June 2008 capital raising.” They are scheduled to appear at Westminster Magistrates’ Court on 3 July.

Caroline Binham, writing in the Financial Times (FT) in a piece entitled “What is the Barclays fraud case about?”, said the “Serious Fraud Office is accusing the bank and four of its former senior staff of lying, or not fully disclosing to the market what it was paying Qatari investors as they were ploughing billions of pounds into Barclays to stave off a UK taxpayer bailout.” It focuses on an “advisory service agreement, or ASA, struck with Qatar at the time of the fundraisings in 2008. The first cash call and original ASA was in June of that year; the second deal in October then extended the agreement. The ASA in total pledged £322m ($406MM) to Qatar in exchange for helping to develop Barclays’ services in the region. This led to Qatar investing £4.1bn ($5.1bn) into Barclays, mainly through subscribing for ordinary shares. In October, Qatar invested another £7.3bn ($9.21bn) in the bank. In October and in addition to the money pledged by Barclays to Qatar in the ASA, the bank loaned Qatar’s ministry of finance $2.3bn ($2.90bn) just as the October deal was closing.”

To say this entire arrangement smells funny would be putting it mildly as “The total that was pledged to Qatar matched what the tiny Gulf State initially invested in Barclays, leading to questions over whether what was going on was inducement, or lending to reinvest back in the bank. The bank has previously said that the ASA’s fees were for legitimate services, and that the loan had a specific clause outlawing any such reinvestment.” All of this legally matters around the bank’s duty to disclose financings under UK law. While the existence of the original ASA was disclosed to the market as part of the UK regulator approved June prospectus, the amount was not. More importantly, “neither the extension of the ASA that accompanied the fundraising in October” nor the “$3bn loan to Qatar’s ministry of economy and finance just as the second fundraising was closing” were disclosed to regulators or the public.

In the anti-corruption world, consulting contracts can raise red flags, particularly when there are no appreciable services delivered under said contract. The article did not report if there were indicia of an actual arms-length agreement, with invoices describing the services and regular payments, all based upon the bank’s then standard contracting practice. Further, the ‘loan’ made at or near the time of the investment appears equally problematic and if the timing is no coincidence, if could be, at the very least, inconvenient.

While this Serious Fraud Office (SFO) action does not involve the current Barclay’s chief Jes Staley, who has his own series of problems, it comes at a very poor time for the bank’s reputation and other legal issues. In another FT piece by Binham and Martin Arnold, entitled “Barclays hirings under US scrutiny”, they noted, “Questions about Mr Staley’s judgment have also been raised after it emerged that KKR had blocked Barclays from winning new mandates at the powerful US private equity group in protest at how Mr Staley had taken the side of his brother-in-law in a dispute over a failed Brazilian deal.” Staley also attempted to enlist corporate security and US national law enforcement officials to determine the identity of an internal, anonymous whistleblower, in contravention of company policy and US law. Staley “then fell for a spoof email purporting to come from Mr McFarlane following a bruising annual meeting during which Mr Staley apologised for the whistleblower incident.”

Finally, Barclays is in hot water for potentially violating US anti-trust laws. Binham and Arnold reported that the head of JPMorgan Chase, Jamie Dimon, grew irritated with Barclays’ chief Staley for poaching his executives (Staley is a former JPMorgan Chase exec). They reported, Dimon “called John McFarlane, Barclays’ chairman, to complain about the defections.” The FT also noted, “Mr Staley then spoke to Daniel Pinto, the head of JPMorgan’s investment bank.” Based on this the “DoJ is examining whether Barclays entered into a so-called “no poach” agreement by promising not to hire more JPMorgan bankers, people familiar with the situation told the FT. Such agreements are illegal under US antitrust laws.”

It has unquestionably been a difficult year for Barclays. Whether any of its former executives will face any jail time for their actions back in the 2008 financial crisis is an open question. As for current bank chief Staley, the news has certainly not gotten any better this year. He may be leaving home.

 

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, 2017

In this episode, I visit with Roy Snell about his recent announcement that he is stepping down as head of the SCCE. We review the current state of the SCCE and how the Roy has seen the compliance evolve from its start after the 1992 US Sentencing Guidelines. We discuss where Roy sees compliance going in the next several years and where the SCCE may go to support the profession.

This announcement comes when the SCCE has grown to 50 staff members and one of the has one of the strongest boards in the professional association world. the SCCE has a strong footprint in the US and is a material player internationally with 17,500 members in 95 countries. It has a great reputation and its success to date has been quite remarkable.

The call for applications will close on August 20th 2017.  A detailed job description and position summary are available at http://www.corporatecompliance.org/CEO.  SCCE plans to complete the interview and selection process in the Fall of 2017 and onboard a Deputy CEO in early 2018. The Deputy CEO will likely assume the role of the CEO sometime in 2019. Roy will stay on with the organization for roughly one year to work on special projects. To be considered for the CEO of SCCE and HCCA, please fill out the questionnaire with return instructions available at: http://www.corporatecompliance.org/CEO.

I conclude my blog post series on the Holder Report (Report) to the Board of Directors of Uber Technology, Inc. (Uber) where the Board asked Holder’s law firm, Covington & Burling LLP (Covington), to evaluate three issues: (1) Uber’s workplace environment as it related to the allegations of discrimination, harassment, and retaliation; (2) whether the company’s policies and practices were sufficient to prevent and properly address discrimination, harassment, and retaliation in the workplace; and (3) what steps the company could take to ensure that its commitment to a diverse and inclusive workplace was reflected not only in the company’s policies but made real in the experiences of each of Uber’s employees.

In prior posts, I explored the first two issues above and today I conclude by looking at issue 3, where it might lead going forward and what lessons can be garnered for the compliance practitioner. The public starting point for the collapse of the company was a simple blog post back in February by a former Uber employee Susan Fowler, who wrote about, “allegations of harassment, discrimination, and retaliation during her employment at Uber, and the ineffectiveness of the company’s then-existing policies and procedures.” I find this starting point to be significant in the consideration of risk management in the 21st century corporation as it is the first time a blog post wrought such changes in a corporation. To be sure, it was only the starting point but the underlying toxic culture at Uber was laid bare to the public in this most 21st century of communication tools. Every Chief Compliance Officer (CCO) and indeed senior executive and Board Director must understand that the days of corporate opaqueness are long gone. If one blogger can unleash such forces, it means that companies must be operated ethically, in compliance with laws and regulations and with transparency. Compliance also needs to be inculcated into start-ups far earlier than is usually done, where it is almost an after-thought.

One of the key questions I have been mulling over is whether Uber could have achieved its meteoric growth, mulit-billion dollar market cap valuation and industry leader without its frat-boy culture. By pushing the boundaries, Uber took on as an entrenched industry as there is literally across the globe, the taxi industry. In every city and country such industry is highly regulated and at least in the western world there are very high barriers to entry. Uber claimed there drivers were not cabbies and not subject to these barriers to market entry. When cities put regulations in place to attempt to control the company in their city, Uber simply out-maneuvered them. This is what happened in Texas where Austin set up regulations which Uber did not like so Uber simply got the more Uber-friendly Texas legislature to pass a law which said only the state could regulate ride sharing companies.

But Uber did not seem to ever get over its bad-boy attitude and grow up to act like a real company. Brooke Masters, writing in the Financial Times (FT) Companies column, in a piece entitled “In corporate culture, as with fish, rot starts at the head”, said the Report “shied away from asking the most important question: how did Uber grow to be the world’s most valuable private technology company, worth $62.5bn at the last fundraising, without addressing some of these issues?” She answered her own question with following, “as with fish, corporate rot starts at the head. Since 2009, Mr Kalanick has led the company with a hard-driving, take-no-prisoners approach to everything, from competitors and regulators to his own staff.”

After the incidents detailed in the Report and Chief Executive Officer (CEO) Travis Kalanick’s well known outbursts and public meltdowns, there was even one more event to demonstrate just how rotten Uber is at the top, even now. On Tuesday of last week, only seven minutes into the Board’s presentation of the Report, the Board’s full acceptance of the Report’s recommendations and steps going forward to Uber employees, the New York Times (NYT) reported the following exchange took place, “In front of employees, the board member Arianna Huffington talked about how having one female director typically leads to more female directors. David Bonderman, a fellow board member and a founding partner at the private equity firm TPG, replied that adding more women to the board would result in “more talking.”” The article went on to note, that the “remark left people aghast, according to those who were there”. Sexism is not much more public and repugnant than Bonderman’s remark. He resigned from the Uber Board of Directors the next day.

The starting point for the turnaround of the company was the removal of founding CEO Kalanick, who took an indefinite leave of absence after the release of the Report. Unfortunately for the company he did not appear to cede controls as he appointed no person to fill his role rather, as Masters noted, “Instead, all 14 of his “directs” will share responsibility and he remains “available as needed for the most strategic decisions”. He clearly plans to come back: “If we are going to work on Uber 2.0, I also need to work on Travis 2.0.””

Based upon the Covington investigation some 20 employees were fired world-wide, including the India country manager who had surreptitiously obtained the medical records of a woman who alleged she was raped by an Uber driver. The departure also included one of Kalanick’s closest confidants, Emil Michael, the (now former) Senior Vice President of Business at the company. Further, Uber currently has no formal No. 2, no Chief Operating Officer (COO), Chief Financial Officer (CFO), General Counsel (GC), Chief Marketing Officer, Senior Vice President of Engineering or Chief Diversity Officer. It probably should go without saying the company does not have a CCO or anyone who might be responsible for ethics at the company.

As is often the case, it is the editorial board at the FT which has some of the best advice for businesses, both in the UK and the US. In a piece entitled “At Uber, counting the cost of winner take all the paper said, there are three groups which can influence the behavior for Uber going forward: the company’s owners, largely Kalanack and his cronies; the Board of Directors, think about Bonderman at this point; and its customers, IE., you and me. As to the final group, we can vote with our pocketbook by changing over to other ride-sharing companies such as Lyft.

Most importantly, the Uber ownership structure is a forbearer of ownership being concentrated in the hands of a few key founders. If they do not put compliance and ethics into the ethos of the company at an early phase, they cannot be forced to do so by shareholders or investors. This anomaly will make independent Boards of Directors more critical for getting such companies ready to go public. For if such companies cannot meet the requirements of a public company, everyone loses.

 

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, 2017