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March 2015

Trends and Patterns in FCPA Enforcement in the United States:A Guide to DOJ Investigations and Prosecutions

Copyright © 2015 Shearman & Sterling LLP. Shearman & Sterling LLP is a limited liability partnership organized under the laws of the State of Delaware, with an affiliated limited liability partnership organized for the practice of law in the United Kingdom and Italy and an affiliated partnership organized for the practice of law in Hong Kong.

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Overview

U.S. Principles of Corporate Prosecution Current Trends: Foreign Corrupt Practices Act Increased Stakes: Larger Fines and Longer Prison Sentences Extraterritorial Application of U.S. Wire & Mail Fraud Statutes Government Investigative Techniques Being Prepared Compliance Policies and Training Programs: Why Have Them?

U.S. Principles of Corporate Prosecution

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U.S. Prosecution of Corporations

U.S. DOJ and the “Holder/Thompson/McNulty/Filip Memorandum”: Under U.S. law, a corporation is criminally liable for actions of its

officers/employees IF beneficial to the corporation. What is now the “Filip Memo” guides U.S. prosecutors in deciding

whether to charge. Weighs unfair consequences to corporation from criminal action v.

circumstances of the corporate crime. Arthur Andersen and trend toward “deferred prosecution” agreements

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The “Filip Memorandum”: 9 Factors

1. Nature and seriousness of offense, including risk of harm to public

2. Pervasiveness of wrongdoing and complicity/condonation of management

3. Corporation’s history of similar conduct (criminal, civil, regulatory)

4. Timely/voluntary disclosure of wrongdoing and willingness to cooperate in investigation (including atty-client and work product waivers)

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The “Filip Memorandum”: 9 Factors

5. Existence/adequacy of corporate compliance programs

6. Remedial action (repair of compliance program, replacement of management, payment of restitution, and discipline/termination of wrongdoers)

7. Collateral consequences (disproportionate harm to shareholders and uninvolved employees)

8. Adequacy of the prosecution of individuals responsible for the corporation’s malfeasance

9. Adequacy of non-criminal remedies (civil or regulatory enforcement actions)

Foreign Corrupt Practices Act

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Current Trends in Enforcement of the FCPA

FCPA: “It shall be unlawful for any person . . ., while in the territory of the United States, corruptly to make use of the mails or any means or instrumentalities of interstate commerce, or to do any other act in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to” a foreign official.

Statute covers: “Issuers” “Domestic Concerns” (citizen, national, or resident of U.S.) Persons engaged in conduct “in furtherance” of a bribe

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Current Trends in Enforcement of the FCPA

Coverage of foreign persons is broad: DOJ interprets provision “as conferring jurisdiction whenever a foreign

company or national causes an act to be done within the territory of the United States by any person acting as that company’s or national’s agent.”

This interpretation means that the U.S. could prosecute a foreign national who never set foot inside the U.S. as long as the person “caused” some act in furtherance of a bribery scheme to take place in the U.S.

Still need a “nexus” with the U.S.: sufficient activities within the U.S. to reasonably anticipate being brought into court there.

FCPA Trends: Prosecution of Corporations

Voluntary Disclosures Sarbanes-Oxley Auditors Principles of Federal Prosecution of Business

Organizations U.S. Sentencing Guidelines

Industry Sector Initiatives Customs Agents / Freight Forwarders (Oil & Gas) Pharmaceutical / Medical Device Industry

Collateral Investigations Antitrust EPA National Security Medicare / Medicaid / Insurance Fraud

Mergers & Acquisitions Due diligence discoveries

“The prosecution of corporate crime is a high priority for the Department of Justice. . . . Indicting corporations for wrongdoing enables the government to be a force for positive change of corporate culture, and a force to prevent, discover, and punish serious crimes.” Principles of Federal Prosecution of Business Organizations

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Ten U.S. enforcement actions in 2014 (4 combined, 3 DOJ, 3 SEC)

FCPA Trends: Prosecution of Individuals

Clear shift in DOJ & SEC Policy

Aggressive legal theories Control Person liability

Aggressive investigative tactics International cooperation Wiretaps, search warrants Extradition Interdiction Revoking passports

“To really achieve the kind of deterrent effect we’re shooting for, you have to prosecute individuals. . . . If the only sanctions out there are monetary, penalties against companies could be interpreted as the cost of doing business. But when people’s liberty is at stake, it resonates in new ways.” Mark Mendelsohn, Former Deputy Chief, DOJ Fraud Section

“Prosecution of individuals is a cornerstone of our enforcement strategy.” Lanny Breuer, Former Assistant Attorney General (DOJ)

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FCPA Trends in Sanctions

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The government collected $1,566 million in financial penalties from corporations in the ten enforcement actions in 2014—the second highest total on record.

As a result of the relatively low number of corporate enforcement actions and high corporate penalties, the 2014 average corporate penalties are the highest on record.

FCPA Trends in Sanctions

Company: Fines, Civil Penalties, Disgorgement & Interest

$800 million Siemens (+ € 596 M in Germany and $100 M to World Bank) (2008)

$772 million Alstom (2014) $579 million KBR / Halliburton (2009) $400 million BAE (2010) (+£30 M in UK) $384 million Alcoa (2014) $365 million Snamprogetti (2010) $338 million Technip (2010) $218 million JGC Corp (2011) $185 million Daimler (2010) $137 million Alcatel (2010) $135 million Avon (2014) $108 million HP (2014)

Individual: Jail

• 15 years Terra Telecom (2011)

• 156 months Jefferson (2007)

• 87 months Jumet (2009)

• 84 months Steindler (1994) & Stanley (2008)

• 63 months Murphy (2002)

• 57 months Diaz (2009)

• 51 months Shu (2009)

Individuals: Fines & Forfeitures $148,964,569 Tesler (2011) $726,885 Chodan (2011) $217,037 Jennings (2011)

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FCPA Recent Case Analysis

Most of the top FCPA penalties involve the use of agents

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Matter Description Fine and Civil Penalties

Siemens Payments through business consultant, payment intermediary, and other third parties

$800 million (+ € 596 in Germany)

Halliburton/KBR

Payments through business consultant $579 million

BAE Payments through offshore shell companies $400 million

Total S.A. Payments through business consultant $398 million

Alcoa Payments through business consultant $384 million

Snamprogetti Netherlands B.V. / ENI S.p.A

Payments through business consultants $365 million

Technip S.A. Payments through business consultants $338 million

JGC Corporation Payments through business consultants $218 million

Daimler AG Payments directly to government officials and third parties $185 million

Weatherford International

Payments through business consultants $152 million

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Does it Pay to Cooperate with the Government’s Investigation?

Baker-Hughes (2001) Company learns that agent paid bribe to reduce taxes in Indonesia Company also

Stops the payment Discloses to auditor, DOJ and SEC Reverses improper accounting Fires responsible agents and employees Pays taxes due to Indonesia Cooperates with DOJ and SEC investigations

No criminal charges. Company enters into civil settlement with no financial penalty whatsoever.

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Does it Pay to Cooperate with the Government’s Investigation?

Baker-Hughes (2007) Baker Hughes subsidiary submits bid for development of Kazakhstan oil field Kazakh officials direct Baker to retain and ultimately pay $4.1m to

designated consulting firm, which funds were funneled to government officials

Baker Hughes pleads guilty pays $11m criminal fine and $33m in “disgorgement” of profits to the SEC as a civil remedy

Then-highest corporate fine in history of FCPA.

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Does it Pay to Cooperate? Wal-Mart Case Study A New York Times article alleged that Wal-Mart engaged in systematic bribery to

fuel growth in Mexico and then covered up internal probe. According to the article, Wal-Mart Mexico’s top executives knew about payments totaling $24 million and had

taken steps to conceal from Wal-Mart HQ in Arkansas.

2005: Wal-Mart HQ learned of misconduct and shut down investigation. Wal-Mart rejected outside counsel’s recommendation for independent, thorough investigation. Wal-Mart conducted in-house, preliminary inquiry and then delegated investigation to Wal-Mart Mexico,

which exonerated its own executives. Wal-Mart Mexico’s CEO, allegedly involved in payments, was continuously promoted.

December 2011: Wal-Mart disclosed in SEC filing that it is conducting internal investigation into possible unspecified FCPA violations and that it had notified the DOJ and SEC.

Aftermath: shareholder lawsuits, congressional investigation, and investigations by DOJ and SEC. November 2012: Wal-Mart expanded inquiry into Brazil, China, and India.

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Does it Pay to Cooperate? Garth Peterson Case Study

Managing director in Morgan Stanley’s real estate investment and fund advisory business bribed former chairman of Chinese state-owned entity to influence Shanghai real estate business. Arranged payment of at least $1.8 million to himself and official disguised as

finder’s fees owed by Morgan Stanley to third parties. Sample email: “Everyone pls keep in mind the big picture here. YY gave us this deal. ... So

we owe them a favor relating to this deal. ... This should be very easy and friendly.” Arranged for himself, the Chinese official, and an attorney to acquire

valuable Shanghai real estate interest from Morgan Stanley fund. In turn, Chinese official helped Peterson and Morgan Stanley obtain

business while personally benefitting from investments.

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Does it Pay to Cooperate? Garth Peterson Case Study

Peterson’s penalty: SEC: $3.6M disgorgement (cash/real estate), permanent industry bar DOJ: 9 months of incarceration and 3 years of supervised release

Morgan Stanley faced no enforcement action because it: cooperated with the SEC conducted its own internal investigation had a strong compliance policy in effect

Peterson had been trained on FCPA compliance seven times, and received at least 35 compliance reminders from company

Voluntarily disclosed Peterson’s conduct to the SEC and DOJ

Government Investigative Techniques

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Government Investigative Techniques

Recent Developments Traditional investigative techniques, such as grand jury subpoenas and

voluntary production of documents by companies, are still the most commonly used investigative tools.

DOJ must use Mutual Legal Assistance Treaty with Japan to obtain documents and witnesses (signed August 2003). DOJ, particularly Antitrust, takes view that it can subpoena U.S. subsidiaries to

obtain a parent’s documents abroad. U.S. courts agree. But such action violates the foreign nation’s sovereignty, adversely affects U.S.

law enforcement’s relationship with the foreign country, and jeopardizes future cooperation. Approval for such subpoenas is rarely granted.

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Government Investigative Techniques

Why Is the Government Increasingly Using Search Warrants, Ambush Interviews and Border Stops? Length of time necessary for MLAT request Element of surprise Greater control over time, place, and manner of investigation Little or no opportunity for counsel to intervene

Therefore: Planning, training and preparation is critical to ensure that the company’s

and employees’ legal rights are protected

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Search Warrants

What Does a Search Warrant Mean? Court order signed by a judge or magistrate based on a finding of “probable

cause,” typically supported by a government agent’s written affidavit Warrants authorize the search and seizure of items at a specific premises

believed to be related to specific crimes. Warrants must be executed from 6:00 am – 10:00 pm, within 10 days of

issuance. Agents watch a premises prior to executing a warrant. Warrant will be executed when agents believe they will get the most evidence and

have the opportunity to interview the most employees.

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Search Warrants

What Will Agents Do When They Arrive with a Warrant? Freeze the premises to prevent the destruction of any potential evidence Search and seize documents – including e-mails, electronic files, desk

calendars, and rolodexes – that fall within the scope of the warrant Gather and try to interview employees in an effort to elicit admissions and

other useful statements without the presence of counsel

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Ambush Interviews

Unscheduled visits to the homes of employees, often executives and managers, typically in the evening

Goal is to catch employees off guard and without counsel. Agents will be polite and ask for permission to speak with the employee. Agents seek to elicit potentially incriminating admissions against the

company or, at the very least, pin down the employee to a specific story so he/she cannot change it at a later date.

Agents frequently serve a grand jury subpoena at the conclusion of the visit.

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Ambush Interviews

Be Warned: Do not expect any Miranda warnings – the interview is considered

“voluntary” so agents are not required to advise the employee of his/her rights.

Nothing is ever “off the record” – everything the employee says will be recorded and used against the company and possibly the employee.

Statements that the employee believes are truthful and not harmful may prove to be inaccurate and/or inconsistent with documents or statements from other employees.

Employees need to know that they can politely say that the FBI should contact counsel and decline to talk further.

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Ambush Interviews

What Are an Employee’s Rights During an Ambush Interview? Employees are not obligated to speak with the agents or allow the agents

into their homes. Employees are not obligated to turn over any documents. Employees have the right to counsel and the right to refuse to speak with the

agents until the employee has conferred with counsel. If an employee chooses to speak with the agents, he can end the interview

at any time and has no obligation to review or sign any statements. It is an employee’s choice whether or not to speak with the agents, but the

prudent course of action is to decline to be interviewed, citing the desire to confer with counsel.

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Border Stops

Overview of Border Stops: Questioning by government officials at borders and airports because an

employee’s name is on a government “watch list” Not routine customs questioning Watch lists typically target non-U.S. citizens.

Employee will be taken to a private room (potentially for several hours) while the immigration agent attempts to contact the DOJ attorney.

At the border, Customs agents can and will search luggage, papers and electronic materials. Anything discovered that is “obviously incriminating” can be seized.

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Border Stops

What are an employee’s rights during a border stop interview? Employees have the same legal rights as during ambush interviews. Employees are not obligated to speak with the agents. Employees are not obligated to turn over any documents. Employees have the right to counsel and the right to refuse to speak with the

agents until the employee has conferred with counsel. If an employee chooses to speak with the agents, he/she can terminate the

interview at any time and has no obligation to review or sign any statements. It is an employee’s choice whether or not to speak with the agents, but the

prudent course of action is to decline to be interviewed, citing the desire to confer with counsel.

Compliance Policies & Training Programs

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Why a Detailed Compliance Policy/Training Program?

Client Policies: Demonstrate strict adherence to antitrust and anti-corruption laws in all

countries – laws designed to protect free and fair competition by prohibiting anti-competitive behavior such as bribery and price fixing conspiracies and predatory efforts to eliminate competitors.

Demonstrate determination to cooperate with government investigations into potential violations of the law.

Protect the legal rights of all Company employees and all affiliates/subsidiaries.

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Why a Detailed Compliance Policy/Training Program?

Punishment Lessened Under U.S. Sentencing Guidelines for Corporations: Corporate criminal fines are determined based upon the company’s financial

gain. Fine can be an amount equal to twice the gross gain to the company (or

twice the loss to any victims). A fine is discounted by up to one-half if a company “had in place at the

time of the offense an effective compliance and ethics program.”

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What is an Effective Compliance and Ethics Program?

Establish procedures to prevent and detect criminal conduct. Make Board and management responsible for oversight. Screen officers and employees for prior misconduct. Train employees

at all levels of the organization. Monitor and audit the program. Establish anonymous whistleblower

hotline. Respond appropriately to reported violations (investigate and adjust

procedures accordingly). Discipline individuals who violate.

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Contact:

Patrick D. RobbinsShearman & Sterling LLPFour Embarcadero Center, Suite 3800San Francisco, California 94111United States+1.415.616.1210 office+1.415.205.2660 mobileWeb: www.shearman.com/probbins Email: probbins@shearman.com