Earlier this month (see
here) the DOJ and SEC announced FCPA enforcement actions against tobacco companies - Alliance One International, Inc. and Universal Corporation.
Both the DOJ (
here) and the SEC (
here) issued a consolidated press release - the first time (to my knowledge) the agencies have consolidated an enforcement action against two
unrelated companies in such a fashion. Perhaps the reason was, as explained below, a significant part of the improper conduct at both companies involved the same entity - The Thailand Tobacco Monopoly ("TTM") - an alleged agency and instrumentality of the Thai government.
This is a long post, but then again, at nearly 300 pages, there was much in the DOJ and SEC resolution documents.
For instance, Alliance One's
entire exposure was based, not on anything it did, but rather successor liability theories.
Both the Alliance One and Universal enforcement actions were the product of voluntary disclosure. In fact, the Universal inquiry began when a former employee contacted the company's internal compliance hotline. Query whether that individual today would do the same thing given Dodd-Frank's whistlblower provisions - provisions which, if applicable, would make him / her a millionaire.
The Universal enforcement action is an FCPA first, in that it concerns conduct in Mozambique and Malawi.
There are also many remedial measures / compliance nuggets waiting to be digested from these enforcement actions.
The Alliance One enforcement action has already spawned a related individual enforcement action against Bobby Elkins (see
here) and the Universal enforcement action may do the same as the DOJ's Statement of Facts contains an alphabet soup of employees, including U.S. citizens, allegedly involved in the improper conduct.
This post describes the DOJ and SEC's enforcement actions against Alliance One as well as the DOJ and SEC's enforcement actions against Universal Corp.
Alliance OneThe Alliance One enforcement action included a non-prosecution agreement between the DOJ and Alliance One, criminal pleas by Alliance One International AG and Alliance One Tobacco OSH, LLC, as well as an SEC enforcement action against Alliance One.
Edward Fuhr, Hunton & Williams LLP (see
here), represented Alliance One entities. Colleen Mahoney, Skadden (see
here), the former Deputy Director of the SEC's Division of Enforcement, represented Alliance One's Board of Directors and Audit Committee.
DOJPursuant to a non-prosecution agreement (see
here), the DOJ agreed not to prosecute Alliance One related to:
1. "improper payments (or agreements to make improper payments) made by employees and agents of its subsidiary or predecessor corporations in the form of:
a. corrupt payments made to foreign officials in Kyrgyzstan including (i) bribes paid to officials of the Kyrgyz Tamekisi; (ii) bribes paid to Akims; and (iii) bribes paid to Kyrgyz tax officials, which payments were made for the purpose of obtaining and retaining business with Kyrgyzstan government entities; and
b. corrupt payments made to foreign officials in Thailand in the form of
kickbacks paid to officials of the Thailand Tobacco Monopoly, which payments were made for the purpose of obtaining and retaining business with Thailand government entities; and
2. The accounting and record-keeping practices associated with these improper
payments."
Pursuant to the NPA, Alliance One "admitted, accepted, and acknowledged successor corporate responsibility for the conduct of its corporate predecessors" as set forth in a Statement of Facts attached to the NPA.
In summary fashion, the Statement of Facts are as follows:
Prior to 2005, Dimon, Inc. ("Dimon") was a publicly traded leaf tobacco merchant subject to the FCPA. Dimon also had an obligation to ensure that its wholly owned subsidiaries, including Dimon International Kyrgyzstan, Inc. ("DIK") and Dimon International AG ("DIAG"), maintained accurate books and records.
Prior to 2005, Standard Commercial Corp. ("Standard") was a publicly traded leaf tobacco merchant subject to the FCPA. Standard also had an obligation to ensure that its wholly owned subsidiaries, including Standard Brazil Ltd., maintained accurate books and records.
In 2005, Dimon and Standard merged to form Alliance One.
KyrgyzstanDimon maintained a wholly owned subsidiary, DIK, that was organized under Kyrgyzstan law. During the relevant time period, DIK purchased and processed tobacco grown in Kyrgyzstan and shipped processed tobacco to Dimon's customers throughout the world.
According to the Statement of Facts, "DIK maintained its principal place of business in Osh, Kyrgyzstan and made regular reports of its business operations and financial accounts to officers of Dimon located at its headquarters in Danville, Virginia. DIK regularly sought approval for management decisions from Dimon managemeut and worked with and communicated with individuals acting as DIK's agents in Danville, Virginia, and Farmville, North Carolina, who undertook certain acts within the territory of the United States such that DIK was a "person" within the meaning ofthe FCPA.
After the merger of Dimon and Standard in 2005, Alliance changed the name of DIK to Alliance One Tobacco Osh, LLC ("Osh") which continued to operate in Kyrgyzstan as a wholly owned subsidiary of Alliance One.
According to the Statement of Facts, "Osh is the corporate successor to DIK, and is legally accountable for the criminal acts of its predecessor corporation.
Like the DOJ and SEC's prior enforcement action against Bobby Elkins (see
here and
here), the Statement of Facts focus on improper payments to "Kyrgyz Official A," "the Akims" and the "Kyrgyz Tax Inspection Police."
Kyrgyz Official A served as the "General Director of the Tamekisi" "an agency and instrumentality of the [Kyrgyz] government [established] to manage and control the government-controlled shares of the tobacco processing facilities throughout Kyrgyzstan." According to the Statement of Facts, the Tamekisi agreed to issue a license to Dimon to process and export tobacco and that from October 1996 through at least February 2004, DIK delivered approximately $2.6 million in cash payments to the official. According to the Statement of Facts, these payments were intended to "influence acts or decisions" of the official in his official capacity and to secure DIK's "continued access to the tobacco processing facilities controlled by the Tamekisi."
According to the Statement of Facts, an Akim is a head of Kyrgyz local government with "authority over the sale of tobacco by the growers" within a specific municipality or geographic area. The Statement of Facts indicate that beginning in 1996 "it became necessary for DIK to obtain permission from local Akims to purchase tobacco from the growers in each area" and "several of the Akims demanded payment of a "commission" from DIK "in order to secure the relevant Akim's approval" for DIK to purchase tobacco from local growers. According to the Statement of Facts, from January 1996 to at least March 2004 DIK made cash payments "to the Akims of five different municipalities totaling approximately $283,762 in order to influence the acts and decisions of the Akims and to secure DIK's continued ability to purchase tobacco from growers in the muncipalities controlled by the Akims."
As to the Kyrgyz Tax Inspection Police, the Statement of Facts indicate that "during periodic audits" of DIK, the police assessed penalties and threatened to shut down DIK. According to the Statement of Facts, from March 2000 to March 2003 DIK "made approximately nine cash payments to officers of the Kyrgyz Tax Inspection Police totaling approximately $82,850 in order to influence the acts and decisions" of the police and to secure DIK's "continued ability to conduct its business in Kyrgyzstan."
According to the Statement of Facts, DIK maintained a company bank account in Kyrgyzstan, known as the "special account" to make the above described improper payments and when a DIK employee "needed to replenish money in the special account, he sent requests for funds by electronic mail or facsimile transmission to other employees and officers of Dimon or its affiliates in the U.S." accompanied by a wire transfer request to Dimon's Financial Accounting Department in Virginia.
According to the Statement of Facts, "the financial reporting on the special account from DIK and all other Dimon subsidiaries went directly to Dimon's corporate headquarters in the U.S." and in July 2002 "an internal audit report to Dimon headquarters stated that DIK management continued to be challenged by a 'cash environment' and cited corruption in Kyrgyzstan as a financial risk because of the potential control issue with cash payments."
According to the Statement of Facts, between January 1996 and December 2004, "the Kyrgyzstan business operations of DIK generated profits of approximately $4.8 million for its parent corporation, Dimon."
ThailandPrior to 2005, Dimon maintained a wholly owned subsidiary, DIAG, which was organized under Swiss law and conducted business in the U.K., Brazil, Thailand, the U.S. and elsewhere. According to the Statement of Facts, "during the relevant time period, DIAG provided financial, accounting and management services to other Dimon subsidiaries that purchased tobacco grown in Brazil, and sold it to Dimon's customers including the [TTM]." According to the Statement of Facts, DIAG, which maintained its principal place of business in the U.K., "made regular reports of its business operations and financial accounts to officers of Dimon located at its headquarters in Danville, Virginia" and DIAG "regularly sought approval for management decisions from Dimon management and worked with and communicated with individuals acting as DIAG's agents" in Virginia and North Carolina "who undertook certain acts while in the territory of the United States such that DIAG was a "person" within the meaning ofthe FCPA.
Prior to 2005, Standard maintained a wholly owned subsidiary, Standard Brazil Ltd ("Standard Brazil"), which was organized under the laws of the Isle of Jersey, Channel Islands, and conducted business in Brazil, Thailand, and elsewhere. During the relevant period, Standard Brazil provided financial, accounting and management services to other Standard subsidiaries that purchased tobacco grown in Brazil, and sold it to Standard's customers including the TTM. Standard Brazil regularly sought approval for management decisions from Standard management and worked with and communicated with individuals at Standard, acting as Standard Brazil's agents in the United States and undertaking certain acts within the territory of the United States such that Standard Brazil was a "person" within the meaning of the FCPA.
The Statement of Facts concern improper payments to TTM (see
here) "an agency and instrumentality" of the Thai government established to "manage and control the government-owned tobacco industry in Thailand." According to the Statement of Facts, the TTM "supervised the cultivation of domestic tobacco crops, purchased imported tobacco and manufactured cigarettes and other tobacco products in Thailand."
According to the Statement of Facts, the TTM was headed by a Managing Director ("Thai Official A"), appointed by the Finance Ministry, who reported through a Board of Directors directly to the Minister of Finance of Thailand and, as such, was a "foreign official" within the meaning of the FCPA. (See
here for TTM's current organizational chart).
According to the Statement of Facts, during the relevant time period, Dimon purchased tobacco from growers in Brazil and sold the Brazilian tobacco to the TTM through DIAG and Standard sold the Brazilian tobacco to the TTM through Standard Brazil. To help facilitate these sales, Dimon and Standard Brazil retained sales agents in Thailand and the companies paid sales commissions to the agents in varying amounts as a percentage of its tobacco sales to the TTM.
According to the Statement of Facts:
"Beginning in or around 2000 and continuing through at least in or around 2004, Dimon and Standard, through their agents, subsidiaries and affiliates, collaborated together and with a competing tobacco merchant, Company A, [presumably Universal Corp.] to apportion tobacco sales to the TTM among themselves and to coordinate their sales prices in order to ensure that each company would share in the Thai tobacco market. Beginning in or around 2000 and continuing through at least in or around 2004, Dimon, Standard and Company A agreed among themselves to pay bribes to officials of the TTM in exchange for their purchase of tobacco. The three companies agreed to pay 'special expenses,' calculated at an agreed rate per kilogram of tobacco sold to the TTM, that were paid as kickbacks to Thai Official A and other TTM officials to induce the TTM to purchase tobacco and to secure an improper advantage for Dimon, Standard and Company A."
According to the Statement of Facts, between 2000 and 2004 "Dimon realized net profits of approximately $4.3 million from the sale of Brazilian tobacco to the TTM" and paid "special expenses totaling approximately $542,950 as kickbacks to Thai Official A and other TTM officials..." According the Statement of Facts, during the same time period, "Standard realized net profits of approximately $2.7 million from the sale of Brazilian tobacco to the TTM" and paid "special expenses totaling approximately $696,160 as kickbacks to Thai Official A and other TTM officials..."
According to the Statement of Facts, the companies and individuals involved "knew and intended that the corrupt special expenses paid to Thai Official A and other TTM officials" would "secure an improper advantage for Dimon and Standard by influencing the TTM's decision to purchase Brazilian tobacco from Dimono and Standard."
According to the Statement of Facts:
"After the merger of Dimon and Standard in 2005, Alliance One consolidated the assets, liabilities, and business affairs of Standard Brazil with DIAG and renamed the subsidiary corporation Alliance One International AG" ("Alliance One AG"). According to the Statement of Facts, as the successor corporation, Alliance One AG "is legally accountable for the criminal acts of both DIAG and Standard Brazil" and Alliance One AG "continued to operate in the U.K. and elsewhere as a wholly owned subsidiary" of Alliance One and accordingly is a "person" within the meaning of the FCPA."
The Statement of Facts then lists several acts in furtherance of the improper payments that had a U.S. nexus such as e-mail messages and wire transfers to or from the U.S.
According to the DOJ, it agreed to enter into the NPA with Alliance One based, in part, on the following factors: "(a) Alliance's timely, voluntary and complete disclosure of the conduct and events at issue; (b) Alliance's thorough, real-time cooperation with the Department and the Securities and Exchange Commission, including its voluntary production of documents; (c) the remedial compliance efforts undertaken and to be undertaken by Alliance; and (d) no further criminal conduct has occurred since the merger that created Alliance."
During the three-year NPA, Alliance One shall, among other things, cooperate in any related DOJ or SEC investigation. Pursuant the NPA, Alliance One must also strenghen its internal controls and retain an independent corporate monitor.
The criminal informations against Alliance One AG (
here) and Osh (
here) concern the same core conduct described above.
The criminal information against Alliance One AG concerns Thailand conduct and charges: (i) conspiracy to violate the FCPA and to knowingly falsify books, record and accounts of Dimon and Standard; (ii) substantive FCPA anti-bribery violations; and (iii) aiding and abetting FCPA books and records violations.
The Alliance One AG Plea Agreement (
here) notes that the benefit received from the improper conduct was approximately $7 million. The company received a "culpability score" credit for "self-reporting, cooperation, acceptance of responsibility." The fine range, per the U.S. Sentencing Guidelines was $4.2 - $8.4 million. The DOJ and Alliance One AG agreed that the appropriate sentence should be $5.25 million. The plea agreement notes that the plea was "the result of the voluntary disclosure made by [Alliance One AG] and its parent [Alliance One] to the Department beginning in May 2004, and the disclosure of evidence obtained as a result of the extensive investigation subsequently conducted by [Alliance One] into the operations of [Alliance One AG], its parent, affiliates, and subsidiaries." The agreement states that "at the time of the initial disclosure, the conduct was unknown to the Department."
The criminal information against Osh concerns Kyrgyzstan conduct and charges: (i) conspiracy to violate the FCPA and to knowingly falsify books, record and accounts of Dimon; (ii) substantive FCPA anti-bribery violations; and (iii) aiding and abetting FCPA books and records violations.
The Osh Plea Agreement (
here) notes that the benefit received from the improper conduct was approximately $4.8 million. The company received a "culpability score" credit for "self-reporting, cooperation, acceptance of responsibility." The fine range, per the U.S. Sentencing Guidelines was $4.2 - $8.4 million. The DOJ and Osh agreed that the appropriate sentence should be $4.2 million. The plea agreement notes that the plea was "the result of the voluntary disclosure made by [Osh] and its parent [Alliance One] to the Department beginning in May 2004, and the disclosure of evidence obtained as a result of the extensive investigation subsequently conducted by [Alliance One] into the operations of [Osh], its parent, affiliates, and subsidiaries." The agreement states that "at the time of the initial disclosure, the conduct was unknown to the Department."
In the DOJ's Consolidated Sentencing Memorandum (
here), it notes that the "corporations have executed a tolling agreement that provides that the statute of limitations was tolled on May 24, 2004, the date on which the corporation first notified the Department that they were undertaking an internal investigation."
As to the ultimate fine amounts, the DOJ states that it "and the defendant corporations have negotiated a fine that is at or above the minimum fine in the range."
As to Osh's $4.2 million fine, the DOJ states:
"The Department submits that a fine at the low end of the Guidelines range is
appropriate in this case given the company's prompt and timely self-disclosure of the potentially corrupt payments as soon as they were discovered, the remedial measures taken and the nature and extent of the company's cooperation throughout the
government's investigation. The company retained outside counsel to conduct an extensive internal investigation and voluntarily produced thousands of pages of documents and memoranda of witness interviews. The company's remedial measures, outlined below, included the termination of all employees found to have authorized or participated in the improper payments."
As to Alliance One AG's $5.25 million fine, the DOJ states:
"This fine is above the minimum of the range partly to account for the fact
that two subsidiaries (DIAG and Standard Brazil) participated in the commission of the offense, along with a third unrelated company, although they were subsidiaries of different parent corporations at the time. Further, because DIAG, Standard Brazil and Company A collaborated to fix prices and pay bribes to the Thai officials, the conduct was not limited to a few employees or confined to a single business unit."
The Government's Sentencing Memorandum concludes as follows:
"Alliance's cooperation was both timely and thorough. During the course of the government's investigation, Alliance and its outside counsel fully cooperated in good faith with the Department, and produced thousands of pages of documents and financial records. Alliance tenninated or sought resignations from all employees who were found to have knowledge of or participated in the improper payments. Alliance voluntarily produced memoranda of employee interviews conducted by counsel. Alliance and their counsel have been available to meet with Department attorneys to brief them on the progress and findings of their internal investigation. The agreed dispositions, described above, reflect the Department's recognition of Alliance's timely and thorough cooperation."
"Alliance took remedial actions including enhancement of its corporate compliance program, replacement of responsible management, and discipline or termination of wrongdoers. Specifically, Alliance took the following remedial actions:
• The Special Account maintained in the name of employees was closed.
• On May 24, 2004, the Audit Committee directed management to deliver a "clear and proactive message" that:
o "Illegal acts will not be tolerated in Dimon;"
o "any potentially illegal act should be brought to the attention of the CLO prior to execution of the transaction;" and
o "any individual that believes that an illegal act may have occurred should contact the CLO immediately."
• Management issued a directive to regional executives and all accounting personnel that any questionable expenses or payments and expenses without adequate
explanation or documentation must be reported to the Corporate Compliance Officer.
• The Audit Committee implemented a new policy requiring CFO or Controller pre-approval of any material payment in cash.
• Management issued a direction to employees that "[n]o payments to public officials or political parties are to be made in any form without the express advance approval of the Corporate Compliance Officer."
• Compliance Officer required all personnel to re-take an online training course covering the FCPA provided by Integrity Interactive.
• Responsible personnel, including senior management in Europe and Kyrgyzstan were terminated or left company voluntarily. Other employees were reprimanded.
• Corporate Accounting required supporting information for all payments made in cash from any entity where such payments exceed $2500 annually, and issued a directive to minimize cash payments for anything other than incidental expenses.
• All cash accounts must be maintained in the company's name.
• All cash transactions are required to be documented by receipts and signed by the recipient and they established a periodic review and approval process for all
non-incidental types of expenses paid in cash to ensure payments would comply with Company policy and the law.
A sentencing hearing is scheduled for October 21, 2010.
SECThe SEC's settled civil complaint (see
here) alleges the same core Kyrgyzstan and Thailand conduct as the DOJ's enforcement action.
As to books and records and internal controls, the SEC alleges that "Dimon's Country Manager authorized, directed, and made" the improper payments in Kyrgyzstan through a DIK bank account held under his name (the above mentioned special account), that "Dimon's Regional Financial Director authorized all fund transfers from a Dimon subsidiary's bank account to the Special Account" and that "Dimon's International Controller formalized the accounting methodology used to record the payments made from the Special Account for purposes of internal reporting by Dimon."
In summary fashion, the SEC also alleged as follows:
"Despite their extensive international operations, Dimon and Standard lacked sufficient internal controls designed to prevent or detect violations of the FCPA. During the 2000-2004 period, Dimon and Standard each had a policy manual prohibiting bribery, but the training and guidance provided to their employees regarding compliance with the FCPA were not adequate or effective. Dimon and Standard each also failed to establish a program to monitor compliance with the FCPA by its employees, agents, and subsidiaries."
As I've indicated in prior posts, before a company settles an FCPA enforcement action, it usually has to answer the enforcement agencies' "where else" question - as in, if you engaged in improper conduct or had internal control problems in Kyrgyzstan and Thailand, where else did you engage in improper conduct or have internal control problems. To answer this broad question, the company is forced to conduct a world-wide review of its operations and that is why one sees, as in the SEC's complaint against Alliance One, a laundry list of other alleged improper conduct.
In summary fashion, the SEC's complaint also alleges as follows:
"By at least May 2005, Standard provided gifts, travel, and entertainment expenses to foreign government officials in the Asian Region, including China and Thailand." "For example, in 2002 and 2003, contemporaneous documents show that Standard employees provided watches, cameras, laptop computers, and other gifts to Chinese and Thailand tobacco officials. Standard also paid for dinner and sightseeing expenses during non-business related travel to Alaska, Los Angeles, and Las Vegas for Chinese and Thailand government delegations."
"In 2004, Standard made a $50,000 payment to a political candidate who was also Standard's agent for tobacco sales in Thailand." "The $50,000 payment was falsely recorded in Standard's books as payment for consulting work."
"In April 2003, Dimon's subsidiary in Greece made a payment of $96,000 to a Greek tax official in exchange for the tax official's agreement not to pursue certain irregularities discovered during an audit, thus significantly reducing Greece's tax liability. Separately, the controller of Dimon's subsidiary in Indonesia made a $44,000 cash payment to an Indonesian tax official in exchange for receiving a tax refund."
The SEC complaint charges Alliance One with violations of the FCPA's anti-bribery provisions, books and records and internal control provisions.
The SEC release (
here) notes that Alliance One, without admitting or denying the SEC's allegations, consented to entry of a permanent injunction enjoining future FCPA violations and agreed to pay a disgorgement penalty of $10 million.
In an Alliance One press release (see
here) R. E. Harrison, the Company's Chairman and Chief Executive Officer, stated:
"Our Company is committed to the highest standards of conduct in all transactions in all jurisdictions where we do business throughout the world. In these cases, although occurring prior to our merger in May, 2005, the conduct by those predecessor companies did not meet our standards and we believe it to be in the best interest of the Company, our shareholders and our other stakeholders to put these issues behind us by means of these negotiated agreements. As indicated in our agreement with the DOJ, we have cooperated fully throughout the course of this investigation and believe that since our merger we have demonstrated our complete commitment to conducting our business in accordance with the highest standards of legal and ethical conduct."
UniversalThe Universal enforcement action included a non-prosecution agreement between the DOJ and Universal, a criminal plea by Universal Leaf Tabacos Ltda. ("Universal Brazil"), as well as an SEC enforcement action against Univeral.
Patrick Hanes, Williams Mullen (see
here) represented Univeral.
DOJPursuant to a non-prosecution agreement (see
here) the DOJ agreed not to prosecute Univeral Corp. related to:
"the making of improper payments, by employees and agents of Universal and/or its subsidiaries to officials of the Government of Thailand in connection with Universal Brazil's efforts to secure business, namely, to secure the improper sale of leaf tobacco to the Thailand Tobacco Monopoly, from 2000 to 2004, and the accounting and record-keeping associated with these improper payments."
Pursuant to the NPA, Universal Corp. "admitted, accepted, and acknowledged responsibility for the conduct of its subsidiaries" as set forth in a Statement of Facts attached to the NPA.
In summary fashion, the Statement of Facts are as follows:
Universal is a publicly traded company headquartered in Richmond, Virginia which, through its subsidiaries, is a worldwide purchaser and supplier of processed leaf tobacco. As an issuer, Universal was required to make and keep accurate books, records and accounts reflecting its transactions and disposition of assets of Universal and its subsidiaries including Universal Brazil.
Universal Brazil, a wholly owned subsidiary of Universal, was a Brazilian corporation, headquartered in Santa Cruz do Sul, Brazil. Universal Brazil was a "person" under the FCPA, and individuals and entities affiliated with and acting on behalf of Universal Brazil while in the territory of the United States, used and caused the use of the mails and means and instrumentalities of interstate commerce and performed other acts in furtherance of an offer, promise, authorization, or payment of money or anything of value to foreign government officials for the purpose of assisting in obtaining or retaining business.
The Statement of Facts refers to the same general kickback scheme involving TTM officials as alleged in the Alliance One enforcement action. The Statement of Facts indicate that "from in or around March 2000 to in or around July 2004, the TTM awarded Universal Brazil five orders for the sale of Brazilian leaf tobacco. To obtain these orders, between June and December 2004, Universal Brazil paid approximately $697,800 in kickbacks to representatives of the TTM through Agent X (a Thai national)."
The Statement of Facts then details the kickback scheme including the involvement of Employee A (a U.S. citizen who was the President of Universal Brazil); Employee B (a Brazilian citizen who was the Commercial Director for Universal Brazil); Employee C (a Brazilian citizen who was a Sales Manager for Universal Brazil); Employee D (a Zimbabwean citizen who was a Sales Director for Universal Brazil); Employee E (a Brazilian citizen who was the Finance Director for Universal Brazil); Employee F (a Brazilian citizen who was the Export Superintendent for Universal Brazil); Employee G (a Brazilian citizen who was a Sales Manager for Universal Brazil); Employee H (a Zimbabwean citizen who was the Sales Director for Universal Leaf Asia); Employee I (a Brazilian citizen who was an account manager in Brazil); Employee J (a U.S. citizen who was a Vice President of Universal Leaf Tobacco - a wholly owned subsidiary of Universal Corp. - who approved wiring instructions for payments to Agent X); Employee K (a U.S. citizen who was the Controller of Universal who approved wiring instructions for payment to Agent X); and Employee L (a U.S. citizen who was the Director of Financial Accounting for Universal Leaf Tobacco who approved wiring instructions for payments to Agent X).
Given the alleged involvement of others, including U.S. citizens, it will be interesting to see if additional DOJ or SEC enforcement actions against such individuals are forthcoming.
According to the Statement of Facts:
"The scheme ended in or about April 2005 when the TTM switched to an 'electronic auction' process to award orders. The electronic auction process increased the transparency of all of the bids received by the TTM, allowed for more open competition, and prevented Universal Brazil [and others] from including additional amounts in the price of their tobacco sales, thereby eliminating the ability of the companies to mask kickback payments used to secure sales orders."
According to the Statement of Facts - "from in or around 2000 through in or around 2004, Employee E and others falsely characterized Universal Brazil's kickback payments to TTM representatives in Universal Brazil's books, records and accounts (which were incorporated into the books, records and acconts of Universal Corp. for purposes of preparing year-end financial statements) as "commission payments" to Agent X."
As to Universal's internal controls, the Statement of Facts indicates as follows:
"Universal Brazil's employees, including Employees E and F, directed that
kickback payments be paid through LATCO, a wholly owned Universal subsidiary. The financial records of LATCO were maintained with insufficient oversight or review by Universal's legal, finance, or compliance departments and were never audited by Universal during the period from 2000 to 2004. Universal Brazil's Finance Department and executives and employees from either Universal Corp. or Universal Leaf Tobacco, including Employee J, Employee K, and Employee L approved or directed the transfer of the multiple 'commission' payments to Agent X even though: (a) some of the payments were described as 'special expense' payments; (b) there was no contractual basis for the payment of the additional commission amounts; (c) the payments were to accounts unassociated with the Agent; (d) the instructions that were provided when wiring the money indicated that Universal Corp. should not identify the agent or that the amounts were for 'special expenses;' and (e) the payments were above the standard five (5) percent commission typically paid by Universal Brazil to its agents.
The Statement of Facts also indicate that "Universal Brazil did not conduct sufficient due diligence prior to engaging Agent X."
According to the DOJ, it agreed to enter into the NPA with Universal based, in part, on the following factors: "(a) Universal's discovery of the violations through its own internal hotline process; (b) timely, voluntary, and complete disclosure of the facts; (c) Universal's extensive, thorough, real-time cooperation with the Department and the SEC; and (d) the remedial efforts already undertaken and to be undertaken by Universal."
During the approximate three-year NPA, Universal Corp. shall, among other things, cooperate in any related DOJ or SEC investigation. Pursuant the NPA, Universal Corp. must also strenghen its internal controls and retain an independent corporate monitor.
The criminal informations against Universal Brazil (see
here) concerns the same core conduct described above.
The criminal information against Univeral Brazil charges: (i) conspiracy to violate the FCPA and to knowingly falsify books, record and accounts of Universal; and (ii) substantive FCPA anti-bribery violations.
The Universal Brazil Plea Agreement (
here) notes that the benefit received from the improper conduct was between $1 million - $2.5 million. The company received a "culpability score" credit for "self-reporting, cooperation, and acceptance of responsibility." The fine range, per the U.S. Sentencing Guidelines was $$6.3 million - $12.6 million. The DOJ and Univeral Brazil agreed that the appropriate sentence should be $4.4 million. The plea agreement states that the fine amount (30% below the bottom of the sentencing guidelines range) "was appropriate" based on the following factors:
"Universal Corporation and Universal Brazil's extensive cooperation
during the course of the investigation, including the provision of relevant documents and information; Universal Corporation and Universal Brazil's substantial assistance with other related Department investigations regarding the bribery of foreign government officials; and Universal Corporation and Universal Brazil's remedial efforts, including enhancing the companies' compliance resources and compliance policies, procedures, and internal controls."
The plea agreement further states that the investigation was "a result of the voluntary disclosure made by Universal Brazil and its parent corporation Universal Corporation, through their counsel, to the Department and the disclosure of evidence obtained as a result of the investigation subsequently conducted through their counsel and the extraordinary cooperation by Universal Brazil and its parent Universal Corporation throughout the Department's investigation" and that "at the time of the initial disclosure, the conduct was unknown to the Department."
The Agreed Sentencing Memorandum (
here) sheds light on how the facts at issue were first uncovered. The memo states:
"The government's investigation began with a self-disclosure by counsel for Universal in 2006. In 2006, a former Univeral Brazil employee with knowledge of the bribery scheme in Brazil reported the conduct to Universal through Universal's website. Based on the tip provided by the former employee, Universal's counsel and outside auditors investigated the matter, identified a series of suspicious payments, and reported this information to the Department. Thereafter, Universal and Univeral Brazil cooperated in the Department's and the U.S. Securities and Exchange Commission's joint investigation of this matter."
In footnotes, the DOJ states as follows:
"The Department encourages companies to disclose evidence of potential FCPA violations promptly. The agreed disposition with Universal Brazil and its parent Universal partly reflect credit given for Universal's timely self-disclosure, thorough investigation, and ongoing cooperation."
"Pursuant to Universal's internal compliance program, Universal maintained on its website an employee 'hotline' that allowed current and former employees to report improper conduct. It is because of this useful compliance initiative that the improper conduct came to light. The agreed upon disposition partly reflects credit given for Universal's pre-existing compliance program."
According to the sentencing memo, Universal Brazil realized net profits of approximately $2.3 million on four contracts secured through the $697,800 in kickbacks to TTM officials.
As to the $4.4 million fine amount, the DOJ stated "that a fine below the Guidelines range is appropriate in this case given the company's prompt and timely self-disclosure of the potentially corrupt payments as soon as they were reported, the nature and extent of the company's cooperation throughout the government's investigation, and the remedial measures taken."
The sentencing memo details timely disclosure and cooperation as follows:
"Universal and Univeral Brazil's cooperation was both timely and thorough. The company retained outside counsel to conduct an extensive internal investigation. Universal, Universal Brazil, and their counsel were consistently available to meet with Department attorneys to brief them on the progress and findings of their internal investigation. During the course of the government's investigation, Universal and Univeral Brazil and its outside counsel fully cooperated in good faith with the Department and produced thousands of pages of documents and financial records and made employees available for interviews. Further, Universal and Univeral Brazil terminated or reprimanded employees who were determined to have authorized and facilitated the improper payments."
As to remedial measures, the sentencing memo states:
"The company's remedial measures, outlined below, included the implementation of an enhanced compliance program. Further, Universal Brazil, pursuant to the plea agreement, and its parent, Universal, pursuant to an Non-Prosecution Agreement (NPA), have agreed to further strengthen their internal controls, implement a rigorous compliance program and engage an independent corporate monitor ("monitor") who will conduct a comprehensive review of the Universal and Univeral Brazil's compliance standards and procedures and its internal controls. The monitor will prepare an initial report and two follow-up reports of his or her findings and make recornmendations for improvements in the companies' compliance programs over the three-year term. Universal and Univeral Brazil took remedial actions including enhancement of the corporate compliance program, replacement of responsible management, and discipline of wrongdoers.
Specifically, Universal and Univeral Brazil took the following remedial
actions:
• Management established a Compliance Committee comprised of the Chief Financial Officer, the General Counsel, the Head of Internal Audit, the Treasurer, the Controller, and the Principle Sales Director. The Compliance Committee meets on a monthly basis to review and evaluate Universal's compliance programs and training.
• Management established a Chief Compliance Officer who is responsible for the day-today operations of Universal's compliance program and Chairs the Compliance Committee.
• Management issued a revised and updated Code of Conduct and translated the Code into fourteen (14) languages.
• Management required sales, finance, and executive-level personnel to attend a day long in-person training session devoted to FCPA and local anti-bribery laws.
• Management revised and enhanced its payment approval policy which now requires an 'approving officer' to review all supporting documentation for a payment and to understand the purpose of the payment prior to approval. The 'approving officer' must certify that he or she has reviewed the existing documentation and obtained an understanding of the legitimate business purpose of the payment. The policy also requires that employees investigate any questionable payments and determine that they
are legal, legitimate, and appropriate prior to approving the payment.
• Management revised and enhanced its due diligence process for agents. Initially, Universal suspended all commission payments to agents worldwide subject to legal department confirmation that each requested payment was adequately supported. Thereafter, Universal instituted a formal and standardized process for the assessment and approval of existing and proposed sales agents, which is coordinated by Universal's Legal Department. As part of this policy, an officer of Universal, known as a 'Relationship Officer,' must complete a 'Sales Agent Due Diligence Checklist' for each prospective sales agent. This detailed checklist includes disclosure of relationships with foreign governments by owners, officers, directors and employees of the third-party agent or their family members, reference checks, and a list of potential red flags.
• Management conducted, and has pledged to continue to conduct, compliance and/or FCPA training at every global conference held for Universal employees.
• Management terminated and reprimanded certain employees involved in the improper
conduct."
SECThe SEC's settled civil complaint (see
here) alleges the same core Thailand conduct as the DOJ's enforcement action.
Further to the "where else" issue discussed above, the SEC's complaint also alleges conduct related to Mozambique and Malawi business.
In summary fashion, the SEC's complaint alleges:
"From 2000 through 2007, Universal Corporation violated the Foreign Corrupt Practices Act of 1977 (the "FCPA") by paying, through its subsidiaries, over $900,000 to govemment officials in Thailand and Mozambique to influence acts and decisions by those foreign officials to obtain or retain business for Universal. Those payments were directed by employees at multiple levels of the company, including management in its corporate offices and at its wholly-or majority-owned and controlled foreign subsidiaries. The Company had inadequate internal controls to prevent or detect any of these improper payments, and improperly recorded the payments in its books and records."
"Between 2000 and 2004, Universal subsidiaries paid approximately $800,000 to bribe officials of the government-owned Thailand Tobacco Monopoly ("TTM") in exchange for securing approximately $11.5 million in sales contracts for its subsidiaries in Brazil and Europe. From 2004 through 2007, Universal subsidiaries made a series ofpayments in excess of $165,000 to government officials in Mozambique, through corporate subsidiaries in Belgium and Africa. Among other things, the payments were made to secure an exclusive right to purchase tobacco from regional growers and to procure legislation beneficial to the Company's business."
"In addition, between 2002 and 2003, Universal, subsidiaries paid $850,000 to high ranking Malawian government officials. Those payments were authorized by, among others, two successive regional heads for Universal's African operations. Universal did not accurately. record these payments in its books and records."
As to the Mozambique payments, the complaint alleges:
(i) that two $10,000 payments were made to the "wife of an official in Mozambique's Ministry of Agriculture and Fisheries" to obtain the official's "assistance in revising legislation to impose a 20% export tax on unprocessed tobacco" - legislation that would have "benefited Universal over competitors because Universal was building a tobacco processing plant in the country;
(ii) that "Universal Leaf Africa directed that Universal's Belgian subsidiary pay $50,000 to the brother of an official of in Mozambique's Ministry of Agriculture and Fisheries" to "enable the Company's Mozambican subsidiary to avoid incurring an export tax that it otherwise would have incurred for shipping unprocessed tobacco out of Mozambique;"
(iii) that "Univeral Leaf Africa made a series of payments totaling $86,830 from its own account and the account of the Mozambican subsidiary to secure a land concession given the subsidiary exclusive rights to purchase tobacco from growers on that land from the 2006 growing season." According to the complaint Universal Leaf made "cash payments to a Governor in Mozambique; and gave gifts including supplies for a bathroom renovation, and personal travel on a Company jet." and
(iv) that "Universal Leaf Africa forgave a debt and directed an additional series of payments from its own accounts and the account of the Mozambican subsidiary totaling $19,061" - according to the complaint the "debt forgiveness and payments were provided to Mozambican government officials and their family members in exchange for continued business favors."
As to the Malawi payments, the complaint alleges as follows:
"Between approximately October 2002 and November 2003, Universal Leaf Africa made payments totaling $500,000 to one high-ranking Malawian government official; $250,000 to a second high-ranking government official; and $100,000 to a political opposition leader."
As to Universal's books and records and internal controls, the SEC alleges in summary fashion that Universal made payments under circumstances in which the Company lacked adequate internal controls to ensure that such payments were not being transmitted to government officials in order to obtain or retain business and that Universal's books and records falsely characterized the payments.
The SEC complaint charges Universal with violations of the FCPA's anti-bribery provisions, books and records and internal control provisions.
The SEC release (
here) notes that Universal, without admitting or denying the SEC's allegations, consented to entry of a permanent injunction enjoining future FCPA violations and agreed to pay a disgorgement penalty of approximately $4.6 million.
In a Universal press release (see
here) George C. Freeman, III, Universal’s Chairman, President, and Chief Executive Officer, states:
“Universal prides itself on conducting business with honesty and integrity. These past payments were - and are - contrary to the policies and standards of Universal and its subsidiaries. We have absolutely no tolerance for this type of activity. Our Audit Committee conducted a rigorous and thorough investigation, we voluntarily reported this matter to federal authorities, and we have fully cooperated with federal authorities at each step of the investigation. We have since taken steps to strengthen our culture of ethical and legal compliance, and our efforts are supported by our operations around the world. Our regional management is fully committed to our culture.”
