Foreign corporate prosecutions can involve headline-grabbing multimillion dollar fines, international corporate scandals, and even diplomatic intrigue. Over the past two decades, federal prosecutors have focused their attention on international antitrust cartels, bribery of foreign governments, ocean dumping, and other crimes that involve corporate conduct abroad.
Entries in Foreign Nationals (6)
It's hard to bribe a foreign official without someone laundering the money. That's why money-laundering charges are part of most FCPA cases. Each shot-show defendant, for example, was charged with conspiracy to launder money. And it's why the DOJ uses the same law against corrupt foreign officials, as in the recent Haiti telco case. (The FCPA doesn't reach bribe takers, only bribe payers.)
The U.S. anti-money laundering law is 18 U.S.C. §1956. It packs a wallop -- a fine of a half million dollars or more, and up to 20 years in prison. (Jail terms for FCPA anti-bribery violations are five years maximum.)
What's a money-laundering offense? Knowingly using money that comes from an illegal activity; trying to conceal or disguise the nature, location, source, ownership, or control of the proceeds of unlawful activity; or trying to avoid reporting a transaction that has to be reported under state or federal law.
Foreigners are subject to the U.S. anti-money laundering law if any part of their transaction happens in the U.S., if they use property in which the U.S. has an interest (through a judgment, lien, or court order), or if they maintain a bank account at a financial institution in the U.S.
Just as bribery usually involves money laundering, money laundering usually involves tax evasion. Again in the Haiti telco case, it was the IRS's Miami field office that investigated Robert Antoine, the former director of international affairs for Haiti telco, who lived in both Miami and Haiti. He pleaded guilty last week to a money-laundering conspiracy (same statute; same potential penalties).
Evidence of money laundering often leads to discovery of other crimes. On its extensive AML website, the University of Exeter says:
Although money laundering is a threat to the good functioning of a financial system, it can also be the Achilles heel of criminal activity. In law enforcement investigations of organised criminal activity, it is frequently the connections made through financial transaction records that allow hidden assets to be located and that establish the identity of the criminals and the criminal organisation involved.
The DOJ hasn't said how often it finds FCPA offenses through money-laundering investigations.
The question our readers most want answered -- after we tell them bloggers have no way to predict Powerball winners -- is, Who's covered by the Foreign Corrupt Practices Act? It's always the jurisdiction thing -- and for good reason. How, for gosh sakes, does the FCPA reach from Washington to the four corners of the earth and back again? It's unnatural -- until you know how it works. Then it's just plain terrifying.
So to keep the FCPA's jurisdiction straight, we take inspiration from the Justice Department. That means we think about it by categories. Here's how:
Category One: Issuers. An "issuer" is a corporation that has issued securities that have been registered in the United States or who is required to file periodic reports with the SEC. See 15 U.S.C. §§ 78c(a)(8), 78dd-1(a). All issuers are covered by the FCPA, wherever they are.
Category Two: Domestic concerns. A "domestic concern" is any individual who is a citizen, national, or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States, or a territory, possession, or commonwealth of the United States. See § 78dd-2(h)(1). All domestic concerns are covered by the FCPA, wherever they are. Helpful hint: If your lawyer calls you a domestic concern, it's more likely to be a warning than an insult.
Category Three: Parent companies. U.S. parent corporations (issuers or domestic concerns) may be held liable for the acts of their foreign subsidiaries if they (the U.S. parent) authorized, directed, or controlled the activity in question, as can U.S. citizens or residents, themselves domestic concerns, who were employed by or acting on behalf of such foreign-incorporated subsidiaries.
Category Four: Foreign companies and individuals. A foreign company or person is subject to the FCPA if it, he or she takes any act in furtherance of a corrupt payment while within the territory of the United States. See § 78dd-3(a), (f)(1). When a foreign company or person acts on U.S. soil, the FCPA applies. Note, however, that the Justice Department interprets Category Four much more expansively. The government's position --untested in court -- is that there's FCPA jurisdiction whenever a foreign company or national (wherever they are) 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.
Those are the categories. As we said, they're inspired by the Justice Department -- specifically the United States Attorneys' Manual, Title 9, Criminal Resource Manual §1018 “Prohibited Foreign Corrupt Practices” (November 2000).
And now, back to our Powerball picks.
View CRM §1018 here.
The U.K. and Saudi governments deny that any laws -- including the U.S. Foreign Corrupt Practices Act -- were broken. But questions persist about the £1 billion payment earlier this year by U.K. defense giant BAE Systems to Prince Bandar, the former Saudi ambassador to the U.S., for brokering his country's purchase of 72 Typhoon jet fighters.
The November 26, 2007 online edition of the Guardian newspaper now says the U.S. Department of Justice obtained documents from Swiss banking sources and more evidence from a U.K. businessman who was part of the deal. "According to US sources," the Guardian says, "businessman Peter Gardiner, who possesses boxes of invoices allegedly detailing payments made by BAE to members of the Saudi royal family, was flown by FBI agents to Washington on August 20 to give testimony there. It was arranged for him to travel via Paris to avoid British attention. Department of [J]ustice investigators are also seeking out the location of other potential witnesses from the UK. When Washington's moves came to light, US sources say that protests were made by the British, and Gardiner was warned his testimony was 'contrary to international protocols'. Gardiner refuses to comment."
The Guardian and other sources also report that Prince Bandar has retained Louis Freeh, a former head of the FBI, to represent him. “There have been no charges filed,” Freeh said in an interview with a U.S. newspaper. “The prince denies any impropriety and violating any statutes in the United Kingdom or the United States.” Some of the payments being investigated reportedly involve deposits to U.S. bank accounts controlled by Prince Bandar directly or through the Saudi embassy.
BAE Systems describes itself on its website as "the premier global defence and aerospace company . . . . With 96,000 employees worldwide, BAE Systems' sales exceeded £15 billion (US $27 billion) in 2006." It says it's the 3rd largest global defense company and that its U.S. operations make it the 6th largest defense company in the United States.
If BAE or Prince Bandar or both are charged or threatened to be charged with violating the FCPA, will they assert as an affirmative defense that "the payment . . . that was made, was lawful under the written laws and regulations" of Saudi Arabia? If they can prove that, then they're off the hook.
View the Guardian's November 26, 2007 Story Here.
Perhaps the biggest, although not yet the loudest, international corruption story involves Siemens AG, the German electronics and electrical engineering giant. Siemens says it has identified "a multitude of payments made in connection with [consulting agreements] for which we have not yet been able either to establish a valid business purpose or to clearly identify the recipient. These payments raise concerns in particular under the Foreign Corrupt Practices Act (FCPA) in the United States, anti-corruption legislation in Germany and similar legislation in other countries." Some reports put the level of potentially corrupt payments at a staggering half a billion dollars.
The press, led by the Wall Street Journal, is also reporting that Siemens' managers in many countries are stonewalling the internal investigation. That, in turn, may have pushed the U.S. Department of Justice and the Securities and Exchange Commission to begin working on a deal with German prosecutors to share information and possibly resources in their respective investigations.
With Siemens' own managers now going silent, the DOJ and SEC face tough challenges collecting evidence abroad and compelling non-residents to appear in American courts, either as witnesses or defendants. Meanwhile, the tension among Siemens' management-level employees must be enormous. If they voluntarily give evidence, they could end up being prosecuted. If they refuse to give evidence, they could end up being fired and still be prosecuted. And unless the internal investigation gets back on track, Siemens itself may lose the opportunity to work out a favorable disposition of the case with U.S. and other prosecutors.
Siemens AG's ADRs trade on the NYSE under the symbol SI.
View A Recent Press Report Here.
View Siemens' Recent SEC Disclosure Here.
Its jurisdictional reach is legendary, but understanding exactly why the FCPA's coverage stretches so far and wide is not always easy. One explanation comes from the United States Attorneys' Manual, in this clear and sometimes ominous exposition:
Under the FCPA, U.S. jurisdiction over corrupt payments to foreign officials depends upon whether the violator is an "issuer," a "domestic concern," or a foreign national or business. An "issuer" is a corporation that has issued securities that have been registered in the United States or who is required to file periodic reports with the SEC. See 15 U.S.C. §§ 78c(a)(8), 78dd-1(a). A "domestic concern" is any individual who is a citizen, national, or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States, or a territory, possession, or commonwealth of the United States. See § 78dd-2(h)(1).
Issuers and domestic concerns may be held liable under the FCPA under either territorial or nationality jurisdiction principles. For acts taken within the territory of the United States, issuers and domestic concerns are liable if they take an act in furtherance of a corrupt payment to a foreign official using the U.S. mails or other means or instrumentalities of interstate commerce. See §§ 78dd-1(a), 78dd-2(a). For acts taken outside the United States, U.S. issuers and domestic concerns are liable if they take any act in furtherance of a corrupt payment, even if the offer, promise, or payment is accomplished without any conduct within U.S. territory. See §§ 78dd-1(g), 78dd-2(i). In addition, U.S. parent corporations may be held liable for the acts of their foreign subsidiaries where they authorized, directed, or controlled the activity in question, as can U.S. citizens or residents, themselves "domestic concerns," who were employed by or acting on behalf of such foreign-incorporated subsidiaries.
Prior to 1998, foreign companies, with the exception of those who qualified as "issuers," and most foreign nationals were not covered by the FCPA. The 1998 amendments expanded the FCPA to assert territorial jurisdiction over foreign companies and nationals. A foreign company or person is now subject to the FCPA if it takes any act in furtherance of the corrupt payment while within the territory of the United States. There is, however, no requirement that such act make use of the U.S. mails or other means or instrumentalities of interstate commerce. See § 78dd-3(a), (f)(1). Although this section has not yet been interpreted by any court, the Department interprets it 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.
(emphasis in original)
From the United States Attorneys' Manual, Title 9, Criminal Resource Manual §1018 “Prohibited Foreign Corrupt Practices” (November 2000).
View CRM §1018 Here.