A huguenot family - let's start at the very beginning ...

Born on 20 February 1748 in the small village of Beaurevoir, northern France, Jean Petit is the beginning of the Petit family story (so far).  He was the fourth son of Etienne Isaac Petit, a farmer and his wife Angelique Miniot and was a Huguenot.  Sometime in the late 1770s he left France for London.

French Protestants, Huguenots, were persecuted by French Catholics in the 16th and 17th centuries and many thousands left the country for safer places. It was not until the late 1790s that French Protestants in France were given the freedom to worship. By the end of the 17th century it is believed that as many as 200,000 Huguenots had left France for England, Dutch Republic, various parts of northern Europe, Switzerland, South Africa and North America.  It is believed that as many as 50,000 Huguenots fled to England during that time.   Jean Petit left France in the last 25 years of religious persecution to join his family that was already established in London.

The first mention of Jean Petit in London is as Godfather to his niece in 1779 at the Church in Threadneedle Street  London, a French Protestant Church.  In 1781, Jean, now John, formally renounced his Catholic faith at the same Church and was accepted into the Protestant Faith.  Unfortunately, the French Protestant Church at Threadneedle Street no longer exists but more information can be read and a picture of it found at the following link:    http://www.tevelein.net/Pages/FamilyRecThreadneedle.htm

For some reason, not yet known, Jean Petit decided that better opportunities lay elsewhere and in the early 1780s moved from London to ....

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State of the Union January 31 2011

Jan. 31, 2011 online at www.uawlocal2250.com

Reminder: As bad weather approaches, the four radio stations that will carry any information about the status of production are: KTRS – 555 AM; KMOX – 1120 AM; WIL – 92.3 FM; and MAJIC – 105 FM. You can also call 877-845-6073 for plant updates. This is NOT the call in number for lates or absences. That is 800-222-8889.

From the Detroit Free Press: If Ford had stuck to a strict interpretation of its profit-sharing formula hourly workers would be receiving no more than an average of $3,000, UAW President Bob King told the Free Press. “What’s really important for our members to know is they didn’t have to do this,” King told the Free Press. “They did much more than they technically would have had to do under our agreement.” Ford and the UAW have had a profit-sharing agreement since 1982. In 1999, when Ford earned $7.2 billion, the average UAW payment was $8,000. However, UAW members ratified a new UAW contract in 2007 that no longer included the profits of Ford Motor Credit, Ford’s financing arm. Consequently, Ford’s profit sharing formula could have resulted in $3,000 or less, King said.( GM is set to announce earnings on Feb. 9)
U.S. News just released their picks for “Best Car for the Money”. Awards were given in 18 categories. GM led all manufacturers with five winners. They are: Chevy Malibu (midsize car); Buick Regal (upscale sedan); Chevy Traverse (midsize crossover); Chevy Tahoe (large SUV); and Chevy Silverado (large pickup). Ford, Honda and Toyota had two each.

From Automotive News: Grim forecasts that a leaner supply chain could hamper the auto recovery are coming true: Parts shortages are shutting down auto assembly plants around the world, derailing automakers' attempts to meet rebounding demand. "It's beyond a trend; it's an epidemic," said Dan Sharkey, a suburban Detroit lawyer who works with many auto suppliers. This week Chrysler Group expects to idle its Windsor, Ontario, minivan plant for at least a week because parts are scarce. And Ford Motor Co. expects to reopen a suburban Detroit plant that builds the F-series pickup after a shortage of parts for V-6 engines forced a weeklong shutdown. On Friday, Ford also closed its Kentucky Truck plant because of a parts shortage.
That factory builds the F-series Super Duty pickups, Ford Expedition and Lincoln Navigator. As of late Friday the shutdown had not been scheduled to extend into this week, a spokesman said. In Europe this week, Volkswagen AG will halt production at its main assembly plants in Wolfsburg, Germany, because of a shortage of engine parts. Ford also took an additional week of downtime at its Chicago assembly plant -- which builds the in-demand redesigned Explorer -- before and after the traditional Christmas shutdown. Ford spokesman Todd Nissen said parts shortages there have ended.

With a winter storm almost upon us – and you’ve probably heard these many times – here are five tips to make the drive less dangerous:
1. Prepare your car. Make sure your battery is fully charged and antifreeze fluid is topped off. Make sure your tires have sufficient tread and, if you drive in the snow often, consider buying a set of winter tires. Carry a good ice scraper, snow brush or broom, a small shovel and a bag of sand for getting unstuck. Also keep a flashlight and extra batteries.
2. Clear the snow. If your car is covered in snow, clear it off completely before leaving. Pay special attention to the windows, headlights and mirrors, and don’t forget that little space between the driver-side mirror and the side of the car. It creates a surprisingly big blind spot.
3. Keep your distance. Get used to leaving a lot more space between your car and others so you’ll have more room to stop or maneuver in an emergency. Look far ahead and try to anticipate what other cars will do and which ones might cause trouble.
4. Watch for ice. All summer long you notice those signs that say “bridge freezes before road surface.” Well, this time of year that warning is meaningful. Ice often forms on bridges when the rest of the rest of the road is in good shape, so watch out for it and avoid lane changes and other maneuvers on bridges.
5. Mind your steering. If your vehicle starts to slide, turn the steering wheel in the direction of the skid, and then gradually straighten it as the car recovers. Skids are startling, and people often remember to “steer into the skid” but forget what to do next. Perhaps the most important thing to remember is to keep looking in your desired direction of travel. If you are looking at the snow bank, guardrail or parked car toward which you are sliding, you are almost certain to crash into it.

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Troubling Trends and Problematic Patterns

That is the alternate title I've given to Shearman & Sterling's "Recent Trends and Patterns in FCPA Enforcement" (here).

The periodic publication is always in my "must-read" category. The author group is first-rate and includes noted FCPA practitioners Philip Urofsky (former Assistant Chief of the DOJ Fraud Section responsible for FCPA enforcement) and Danforth Newcomb (a dean of the FCPA bar).

The Shearman & Sterling piece raises particularly pointed questions as to the Panalpina-related enforcement actions and the seemingly vanishing "obtain or retain business" element of an FCPA anti-bribery violation.

I have covered these issues extensively as well - see here for several posts on the Panalpina-related enforcement actions and here (pg. 971 "Just How Was that Business Obtained or Retained") as to questions about the enforcement agencies' "obtain or retain business" allegations or interpretations.

The Shearman & Sterling piece states that "some of the government's cases appear to blur the lines or muddy the waters when it comes to the limits of the statute." The authors state as follows:

"In several cases, such as Pride International, Panalpina, and Royal Dutch Shell, the theories used to hold parents accountable for the acts of subsidiaries and vice versa appear to be unclear. In others, such as Pride International and Tidewater, the connection of the alleged conduct to “obtaining or retaining business,” a critical element of the statute was not pleaded or, worse, was pled in a way that suggests that virtually any bribe that improves a company’s profitability is sufficient – a result that is not consistent with established precedent and the language of the statute."

Under the heading "Enforcement Strategies" the authors state:

"As in years past, the enforcement actions brought in 2010 provide insight, albeit sometimes clouded, into the DOJ’s and the SEC’s views of the scope and meaning of certain aspects of the statute, as well as their enforcement priorities and strategies. In doing so they are at times helpful and at other times opaque or, even worse, disturbing. As always, however, it is important to remember that although these agreements may have been hotly negotiated, in the end each of the companies and individuals settled. Thus, none of the government’s interpretations, or its view of how the law applied to the facts, has been subjected to a searching judicial examination in the context of a contested adversary proceeding."

Under the heading "The Business Nexus" the author state:

"The Panalpina cases and certain allegations in other cases are likely to reopen the debate as to the meaning of the “obtain or retain business” element. This element is recognized as a critical factor in narrowing the scope of the FCPA. How much it does so, however, has long been a matter of debate. In its 2004 decision in U.S. v. Kay, the Fifth Circuit appeared to have ended the debate, holding that the FCPA was not limited to bribes to obtain business from a foreign government or even to bribes that led “directly to the award or renewal of contracts.” Analyzing the indictment in that case, the court held that “bribes paid to foreign officials in consideration for unlawful evasion of customs duties and sales taxes could fall within the purview of the FCPA’s proscription.” (emphasis in original). The court warned, however, that the scope of the statute was not limitless, stating, “We hasten to add, however, that this conduct does not automatically constitute a violation of the FCPA: It still must be shown that the bribery was intended to produce an effect – here, through tax savings – that would ‘assist in obtaining or retaining business.’”

Although some of the bribes in the Panalpina cases were made to obtain contracts and other specific business advantages, most of the payments were made to customs or tax officials to reduce duties and taxes, to expedite customs clearances, or to evade import regulations. In the latter cases, the government made very little effort to link such payments to obtaining or retaining business. For example, in Pride International, the DOJ alleged a number of what it termed “bribery schemes,” including payments to a Mexican Customs Official “to avoid taxes and penalties for alleged violations of Mexican customs regulations relating to a vessel leased by Pride International.” Similarly, in GlobalSantaFe, the SEC alleged that through a number of “suspicious payments” the company “avoided costs and gained revenue.” Without more explanation, such barebones allegations create the impression that the government equates gaining revenue or reducing costs generally with “obtaining or retaining business.” That, however, is the very opposite of the holding in Kay [...]."

"Reading between the lines of the pleadings, we can, in many cases, construct some theory of how certain of the payments might have fallen within the Kay rule, e.g., some payments appear to have allowed the importers to bring in equipment and rigs without which they could not perform new or existing contracts. It is even possible that, similar to the facts in Kay, the importers could not have competed for existing or new business had they paid the full duties or taxes or complied with other local requirements. The pleadings, however, for the most part only hint at such an underlying rationale, leaving us to wonder exactly what does the government think the business nexus means today?"

When an author group including a former DOJ official responsible for enforcing the FCPA (in a more measured and disciplined era) uses words such as "disturbing" and phrases such as "not consistent with established precedent and the language of the statute" - well, I think we all should take notice.

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State of the Union January 28, 2011

Jan. 28, 2011 online at www.uawlocal2250.com

From the Detroit News: Ford Motor Co. said today net income totaled $6.6 billion in 2010 — its most profitable year in more than a decade — and it will give 40,600 hourly workers profit-sharing checks of about $5,000 each in March. It was Ford’s second consecutive year in the black after three years of losses. The $6.6 billion net income is Ford's best full-year result since 1999 and is a $3.8 billion increase from a year ago; the operating profit of $8.3 billion was the highest since 2000. Net income in the fourth quarter was $190 million, or five cents per share, down $696 million from a year ago in part due to a one-time charge of $960 million to convert some debt into equity.


Here are some comments from AutoWeek staffers on the Nissan Versa compact car: “The silhouette is simply awkward…The interior is plain, and the wood looks a bit cheesy.” “This Versa is nothing if not basic. It reminds me of cars my friends drove back when I was in high school. I was rolling in a Buick Skyhawk, and I would take that car today over this Versa…. The sheetmetal is nondescript. Inside is about the same, except for the wood-grain trim, which is a joke.” And the best one, “The Nissan Versa does one thing well: disappoint.” FYI – this was an $18,685 vehicle with crank windows.


From Automotive News: Fiat Spa has enough cash to boost its stake in Chrysler Group to 51 percent by the end of this year, CEO Sergio Marchionne said. Today’s statements by Marchionne follow comments earlier this month indicating Fiat is on track to lift its share to 35 percent this year from the current 25 percent. Fiat raised its Chrysler holdings to 25 percent from 20 percent this month after the U.S. automaker won approval to build fuel-efficient engines in Dundee, Mich. That was one of three conditions tied to the deal with the federal government that allowed Fiat to rescue Chrysler from a U.S. steered bankruptcy in 2009. The second test requires Chrysler to record a total of $1.5 billion in sales outside North America and to obtain agreements from 90 percent of its dealers in Latin America to carry Chrysler products. The third requires the development of a compact car on a Fiat platform that will achieve 40 mpg. Marchionne has said he expects all those requirements to be met this year. From there, Fiat has an option to boost the holding to 51 percent -- but only after Chrysler repays U.S. and Canadian government bailout loans.

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Once Slumbering FCPA is "Alive and Well"

Slumbering to alive and well is a good way describe it when a law, one that has not changed during a decade, goes from zero DOJ enforcement actions (2000) to the DOJ collecting approximately $1 billion in fines in enforcement actions (2010) during that same decade.

Earlier this week, Assistant Attorney General (Criminal Division) Lanny Breuer spoke before the Annual Meeting of the Washington Metropolitan Area Corporate Counsel Association (see here for his remarks). The focus of the meeting was individual liability for corporate executives and in-house counsel.

Breuer posted the following questions and then stated the following regarding the FCPA.

"So what kind of federal criminal liability might a corporation have to worry about? How might the Criminal Division’s enforcement efforts affect you?"

"As an initial matter, in the Criminal Division we have dramatically increased our enforcement of the Foreign Corrupt Practices Act in recent years. That statute, which was once seen as slumbering, is now very much alive and well. In fact, over the last two years, we have charged more than 50 individuals with FCPA-related offenses and collected nearly $2 billion in FCPA-related fines and penalties – by far the most people charged and penalties imposed in any similar period. We have brought these cases against some of the largest corporations in the world. As just one example, in November we resolved a wide-ranging FCPA investigation involving the freight forwarding company Panalpina World Transport, its U.S. subsidiary, and five oil and gas service providers. They agreed to pay combined criminal penalties of $156 million.

Just as important as the collection of fines and penalties, we have aggressively pursued individual executives under the FCPA. For example, we recently charged the president and the CFO of Lindsey Manufacturing Company with FCPA violations for participating in a scheme to bribe officials of the state-owned electrical utility in Mexico. We also recently arrested the former CEO and the former vice president of business development of LatiNode, a Miami-based telecommunications company, and charged them in connection with bribes made by LatiNode employees to officials of the state-owned telecommunications company in Honduras.

The Fraud Section of the Criminal Division has primary responsibility within the Department for enforcing the FCPA. We recently promoted a new head of the Section’s FCPA Unit and two assistant chiefs, and we have also increased the number of line prosecutors in the Unit, attracting high caliber attorneys with extensive experience – including Assistant U.S. Attorneys with significant trial and prosecutorial experience and attorneys from private practice with defense-side knowledge and experience. These changes have significantly increased our FCPA enforcement capabilities."

*****

A good weekend to all.

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State of the Union January 27, 2011

Jan. 27, 2011 online at www.uawlocal2250.com

Now that vacation applications are out there are questions about our schedule. One question that can be answered today is that there will NOT be a 2-week summer shutdown. When the details about Fridays and other schedule issues are finalized they will be communicated.

Reminder: Tomorrow is the last day to submit your entries for the VAP program. You can drop them in the box in the cafeteria. The drawing is Monday, 1-31.

From the Detroit News: Ford Motor Co. is recalling 425,000 Windstar minivans in 22 cold-weather states, including Michigan, to fix parts that could corrode. The recall covers 1999-2003 model years and is intended to identify vehicles whose front lower control arm, rear attaching brackets and body mount attachments need fixing. Ford will start repairing vehicles in March and, at its discretion, may buy back some of them. The automaker also may offer some owners loaner vehicles while theirs are fixed. Ford told the National Highway Traffic Safety Administration it was recalling the vehicles, even though it didn't think it was necessary.

From the Wall Street Journal: General Motors Co. said Thursday it is withdrawing its request for $14.4 billion in Department of Energy loans aimed at making its vehicle fleet more fuel-efficient. GM and the DOE had been negotiating loan terms under the $25 billion lending program. Turning down the federal loans could provide an image boost for GM, which is eager to distance itself from the federal government's $49.5 billion bailout in 2009. The auto maker plans to advertise the move to the public, a person familiar with the matter said. The low-interest loans were an attractive option for GM, which first applied for the aid amid its financial troubles in 2009. But the auto maker's financial position has improved dramatically and the company has promised investors it would eliminate virtually all debt over the next few years. GM has since made it a top goal to get out of the practice of borrowing.

From Automotive News: General Motors plans to launch the Chevrolet Volt in all 50 states by the end of the year, a major acceleration in the rollout of the plug-in hybrid. Chevy plans to have Volts in all of its dealerships by the end of 2011, Rick Scheidt, Chevy vice president of U.S. marketing, said in a statement. Chevy originally planned to deliver the car in select markets this year: California, New York, Connecticut, New Jersey, Texas and Michigan. Deliveries began in December. GM said customers nationwide will be able to order Volts through dealers beginning in the second quarter. Deliveries will begin in Virginia, Maryland, Delaware, Pennsylvania, North Carolina, South Carolina, Georgia, Florida, Oregon, Washington and Hawaii in the third quarter.

UAW sets stage for new union drive in America - Bob King

Every generation of UAW members has taken up the mantle for justice.
Our parents and grandparents engaged in sit-down strikes and demonstrations until 100 percent of the U.S. auto industry was unionized. As a result, a generation of Americans enjoyed a middle-class standard of living, with decent wages, benefits and working conditions. The middle class is in danger of disappearing in this country because the U.S. auto industry is now less than 50 percent unionized. The only way to secure benefits for union members is to secure rights for all working people. This is the essence of solidarity. The right to join a union is a fundamental human right, sacred to any democratic society. The right to organize — freedom of speech and assembly — is the First Amendment for workers. When Congress passed the National Labor Relations Act 75 years ago, the intent was to establish a statutory framework that embodies the right to organize. Unfortunately, the NLRA process for union elections is fatally flawed. The National Labor Relations Board, charged with enforcing the NLRA, does not protect a worker's right to organize. The NLRB is a triumph of hypocrisy — a law intended to protect workers actually prevents them from achieving a voice on the job.

This destruction of workers' rights is not new, and it has been developing for decades. Companies began hiring anti-union consultants in the 1970s to design sophisticated ways to intimidate workers trying to organize. Management consultants train supervisors to put pressure on individual workers. Mandatory captive audience meetings spell out dire consequences if workers exercise their rights. Companies threaten to close the facility if workers vote to unionize. Union supporters are disciplined and sometimes fired. Company lawyers find thousands of excuses for delay. Penalties for violating the law are nonexistent.
Within the UAW, there are hundreds of examples of the ineffectiveness of the NLRB process. In August 2010 — six years after the UAW lost a union election by three votes at Stabilus Inc. in Gastonia, N.C. — the NLRB finally ordered a new election because the employer violated the law in more than a dozen ways, including threatening workers' jobs for voting union, spying on meetings and interrogating workers about union activity. Six years later, not one member of the 25-person organizing committee is there, most of the union supporters have been fired, laid off or have quit, and the election still hasn't been scheduled. The UAW is committed to fight for the rights of all workers to choose to be UAW members without harassment, intimidation and radical tactics from employers. And we're returning to our roots of direct action on behalf of worker rights.
Our new strategy, called "UAW Principles for Fair Elections," sets a framework through which workers can freely decide whether to organize. These 11 principles represent a democratic process that safeguards freedom of speech and association. The UAW demands that all corporations, whether American or foreign-owned, adhere to these principles and respect the rights of workers. This is the battle of our generation and will determine the survival of the labor movement.
It is the mission of our generation of trade unionists to secure these rights for future generations. We must win this fight for our children and grandchildren.

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DOJ Enforcement of the FCPA - Year in Review

A few weeks ago I ran a SEC FCPA enforcement year in review (here).

Today I highlight facts and figures from the DOJ's FCPA enforcement program in 2010.

And what it year it had.

As noted in this recent DOJ release, "the Criminal Division’s Foreign Corrupt Practices Act (FCPA) enforcement involved imposition of $1 billion in penalties in FY 2010, the largest in the history of FCPA enforcement."

In comparison, in 2000 the DOJ did not bring one FCPA enforcement action. The past decade has thus witnessed a remarkable transformation – not as to the FCPA itself (the statute has not changed since 1998), but as to FCPA enforcement and theories of prosecution both at the DOJ and the SEC.

As the DOJ’s former Assistant Chief for FCPA enforcement candidly stated (here), “the government sees a profitable program, and it’s going to ride that horse until it can’t ride it anymore.”

This post highlights the 16 DOJ corporate FCPA enforcement actions from 2010. Not included are BAE (an enforcement action (see here) in which the DOJ did not even charge FCPA offenses) or Lindsey Manufacturing (see here) given that the company was indicted and thus the enforcement action remains open.

Of the 16 enforcement actions, 6 of the actions were in Panalpina related actions; 2 were the related Bonny Island, Nigeria actions; and 2 were the related Alliance One and Universal actions. Thus, if one looks at unique enforcement actions (the best way to analyze FCPA facts and figures in my opinion), the DOJ broght 9 unique corporate FCPA enforcement actions in 2010.

In the 16 corporate FCPA enforcement actions from 2010, the DOJ brought in $870 million in criminal fines - thrown in the $400 million BAE enforcement action if you insist and the number is $1.27 billion.

Tack on the SEC's recovery (both civil penalties and disgorgement) in 2010 corporate FCPA enforcement actions of approximately $530 million and one finds $1.8 billion in corporate FCPA fines, penalties and disgorgement in 2010.

DOJ FCPA enforcement in 2010 was both large ($240 million in criminal fines against both Technip and Snamprogetti, $93.6 million in criminal fines against Daimler) and small ($32,000 against Mercator Corporation in the bizarre James Giffen related case involving two snowmobiles, and $1.7 million against RAE Systems).

The numbers present some interesting results.

Despite aggressive DOJ rhetoric and despite the DOJ seeking a sentencing guidelines enhancement applicable to FCPA offenses (see here) in 10 of 12 FCPA enforcement actions where an analysis was possible, the DOJ agreed to a criminal fine below the minimum range suggested by the sentencing guidelines.

In these 10 cases, the average was approximately 25% below the minimum guidelines range and the distribution range was 55% below the minimum guidelines range (Pride International) and 5% below the minimum guidelines range (Panalpina).

The only two corporate FCPA enforcement actions from 2010 where the company paid a criminal fine within the guidelines range were Alliance One (the company voluntarily disclosed and receive a non-prosecution agreement) and Alcatel-Lucent.

[Note - why are only 12 of the 16 enforcement actions included in the above analysis? I excluded Innospec because the company's claimed inability to pay (but see here) resulted in an invalid fine to guidelines analysis; I excluded Mercator Corp. because the DOJ and the company could not even agree on what guidelines to use; and I excluded Noble Corp. and RAE Systems (both enforcement actions resolved via an NPA) because the DOJ never set forth a guidelines range in the agreement or related documents].

During the November 2010 Senate FCPA hearing (see here) an issue discussed was the general lack of individual DOJ FCPA prosecutions.

How many corporate FCPA enforcement actions involved related individual prosecutions of company employees (not talking agents here such as in Innospec) by the DOJ (recognizing that such prosecutions may be forthcoming in the future)?

Of the 17 corporate DOJ enforcement actions or indictments (Lindsey Manufacturing is back in the mix here) 12 of the 17 enforcement actions (70%) have not involved (at least thus far) DOJ prosecutions of company employees. Included in the 12 enforcement actions are the top 3 from 2010 from a criminal fine perspective: Technip, Snamprogetti, and Daimler.

What about non-prosecution and deferred prosecutions vs. old fashioned law enforcement (i.e., if a company committed a crime the DOJ charged it and if the company did not commit a crime the DOJ did not charge it)?

2010 saw 15 such resolution vehicles (4 NPAs) and (11 DPAs).

As Gibson Dunn highlighted in this recent report, FCPA enforcement actions comprised approximately 50% of all DOJ NPA or DPA agreements.

Among the criticisms noted in the Gibson Dunn report is that "by continually entering DPAs and NPAs, the DOJ can shield its expansive interpretation of important statutes from judicial review." As to the FCPA the report states, "because FCPA allegations against corporations rarely, if ever, go to trial, and DPAs and NPAs are subject to only minimal judicial scrutiny, the DOJ's sometimes expansive interpretations of the FCPA is never truly tested."

Spot on!

As evident from the material below, a typical way for DOJ to resolve corporate FCPA enforcement actions in 2010 was for the parent company to enter into an NPA or DPA and for a subsidiary (usually a foreign subsidiary) to plea to a criminal charge. Daimler, Alliance One, Universal, ABB, Panalpina, Pride International, Royal Dutch Shell, and Alcatel-Lucent all involved such hybrid resolution vehicles.

In the SEC year in review piece, I noted that 97% of the $529,967,294 collected in SEC FCPA enforcement actions in 2010 appears to be in enforcement actions that were voluntarily or otherwise publicly disclosed and not the result of original investigation by either the SEC or DOJ.

What does this number look like for DOJ FCPA enforcement actions in 2010 - recognizing that by disclosure I am talking about voluntary disclosure in the traditional sense (i.e. the company disclosing the conduct at issue to the enforcement agencies) as well as other forms of public disclosure (such as identification in the U.N. Oil for Food Report, the result of a whistleblower complaint to U.S. authorities, the result of prior foreign law enforcement agency investigations, or based on disclosures by other companies)?

Of the $870 million in criminal fines collected by the DOJ in FCPA enforcement actions, 97% would appear to fit this description as well.

Thus, much like the SEC, the DOJ also appears to be a reactive agency when it comes to corporate FCPA enforcement.

Set forth below are facts and figures from each 2010 DOJ corporate FCPA enforcement action.

Innospec (March 2010)

See here for the prior analysis and principal allegations.

Charges: Conspiracy to commit wire fraud and to violate the FCPA's anti-bribery and books and records provisions; wire fraud; and FCPA anti-bribery and books and records violations.

Resolution Vehicle: Plea.

Guidelines Range: $101.5 - $203 million.

Penalty: $14.1 million (based on claimed inability to pay).

Disclosure: Yes.

Monitor: Yes - three years.

Individuals Charged by DOJ: No.

Daimler (March 2010)

See here for the prior analysis and principal allegations.

Charges: Daimler AG (conspiracy to violate the FCPA's books and records provisions and violating the FCPA's books and records provisions); DaimlerChrysler China Ltd. (conspiracy to violate the FCPA's anti-bribery provisions and violating the FCPA's anti-bribery provisions); DaimlerChrysler Automotive Russia SAO (conspiracy to violate the FCPA's anti-bribery provisions and violating the FCPA's anti-bribery provisions); Daimler Export and Trade Finance GmbH (conspiracy to violate the FCPA's anti-bribery provisions and violating the FCPA's anti-bribery provisions).

Resolution Vehicle: Daimler AG (deferred prosecution agreement); DaimlerChrysler China Ltd. (deferred prosecution agreement); DaimlerChrysler Automotive Russia SAO (plea); Daimler Export and Trade Finance GmbH (plea).

Guidelines Range: $116 - $232 million.

Penalty: $93.6 million (20% below the minimum guidelines range).

Disclosure: Yes.

Monitor: Yes - three years.

Individuals Charged by DOJ: No.

Technip (June 2010)

See here for the prior analysis and principal allegations.

Charges: Conspiracy to violate the FCPA's anti-bribery provisions and violating the FCPA's anti-bribery provisions.

Resolution Vehicle: Deferred prosecution agreement.

Guidelines Range: $318.4 - $636.8 Million

Penalty: $240 million (25% below the minimum guidelines range).

Disclosure: Yes.

Monitor: Yes - two years.

Individuals Charged by DOJ: No.

Snamprogetti (July 2010)

See here for the prior analysis and principal allegations.

Charges: Conspiracy to violate the FCPA's anti-bribery provisions and aiding and abetting FCPA anti-bribery violations.

Resolution Vehicle: Deferred prosecution agreement.

Guidelines Range: $300 Million - $600 Million

Penalty: $240 million (20% below the minimum guidelines range)

Disclosure: Yes.

Monitor: No.

Individuals Charged by DOJ: No.

Alliance One (August 2010)

See here for the prior analysis and principal allegations.

Charges: Alliance One International AG (conspiracy to violate the FCPA, violations of the FCPA's anti-bribery provisions, and violations of the FCPA's books and records provisions); Alliance One Tobacco Osh LLC (conspiracy to violate the FCPA, violations of the FCPA's anti-bribery provisions and books and records provisions).

Resolution Vehicle: Alliance One International Inc. (non-prosecution agreement); Alliance One International AG (plea); Alliance One Tobacco Osh LLC (plea).

Guidelines Range: $8.4 - $16.8 million.

Penalty: $9.45 million.

Disclosure: Yes.

Monitor: Yes - three years.

Individuals Charged by DOJ: Yes.

Universal Corp. (August 2010)

See here for the prior analysis and principal allegations.

Charges: Universal Leaf Tabacos Ltd. (conspiracy to violate the FCPA's anti-bribery and books and records provisions and violating the FCPA's anti-bribery provisions).

Resolution Vehicle: Universal Corporation (non-prosecution agreement); Universal Leaf Tabacos Ltd. (plea).

Guidelines Range: $6.3 - $12.6 million

Penalty: $4.4 million (30% below the minimum guidelines range).

Disclosure: Yes.

Monitor: Yes - three years.

Individuals Charged by DOJ: No.

Mercator Corp. (August 2010)

See here for the prior analysis and principal allegations.

Charges: FCPA anti-bribery violations.

Resolution Vehicle: Plea.

Guidelines Range: The parties disagreed as to whether the 2009 or 2008 guidelines applied. If 2009, $650,000 - $1.3 million; If 2008, $30,000 to $60,000.

Penalty: $32,000.

Disclosure: Unclear.

Monitor: No.

Individuals Charged by DOJ: Yes (but Giffen pleaded to a misdemeanor tax violation).

ABB Ltd. (September 2010)

See here for the prior analysis and principal allegations.

Charges: ABB Inc. (conspiracy to violate the FCPA's anti-bribery provisions and violating the FCPA's anti-bribery provisions); ABB Ltd. - Jordan (conspiracy to commit wire fraud and to violate the FCPA's books and records provisions).

Resolution Vehicle: ABB Ltd. (deferred prosecution agreement); ABB Inc. (plea); ABB Ltd. - Jordan (plea).

Guidelines Range: $30.42 - $60.2 million.

Penalty: $19 million (approximately 38% below the minimum guidelines range).

Disclosure: Yes.

Monitor: Company agreed to follow the recommendations of an independent compliance consultant.

Individuals Charged by DOJ: Yes.

Lindsey Manuf. (October 2010)

See here for the prior analysis and principal allegations.

Charges: Conspiracy to violate the FCPA's anti-bribery provisions and violating the FCPA's anti-bribery provisions.

Resolution Vehicle: N/A

Guidelines Range: N/A

Penalty: N/A

Disclosure: Unclear.

Monitor: N/A

Individuals Charged by DOJ: Yes.

Panalpina (November 2010)

See here for the prior analysis and principal allegations.

Charges: Panalpina World Transport (Holding) Ltd. (conspiracy to violate and violating the FCPA's anti-bribery provisions) ; Panalpina Inc. (conspiracy to violate the FCPA's books and records provisions and aiding and abetting certain customers in violating the FCPA books and records provisions).

Resolution Vehicle: Panalpina World (deferred prosecution agreement); Panalpina Inc. (plea).

Guidelines Range: 72.8 million to $145.6 million.

Penalty: 70.6 million (approximately 5% below the minimum guidelines range).

Disclosure: Yes.

Monitor: No.

Individuals Charged by DOJ: No.

Pride International (November 2010)

See here for the prior analysis and principal allegations.

Charges: Pride International Inc. (conspiracy to violate the FCPA's anti-bribery and books and records provisions and violating the FCPA's anti-bribery and books and records provisions); Pride Forasol S.A.S. (conspiracy to violate the FCPA's anti-bribery and books and records provisions, violating the FCPA's anti-bribery provisions, and aiding and abetting violations of the FCPA's books and records provisions).

Resolution Vehicle: Pride International Inc. (deferred prosecution agreement); Pride Forasol (plea).

Guidelines Range: $72.5 - $145 million.

Penalty: $32.6 million (approximately 55% below the minimum guideline range).

Voluntary Disclosure: Yes.

Monitor: No.

Individuals Charged: No.

Tidewater (November 2010)

See here for the prior analysis and principal allegations.

Charges: Tidewater Marine International Inc. (conspiracy to violate the FCPA's anti-bribery and books and records provisions and violating the FCPA's books and records provisions).

Resolution Vehicle: Deferred prosecution agreement.

Guidelines Range: $10.5 - $21 million.

Penalty: $7.4 million (30% below the minimum guidelines range).

Disclosure: Yes.

Monitor: No.

Individuals Charged by DOJ: No.

Transocean (November 2010)

See here for the prior analysis and principal allegations.

Charges: Transocean Inc. (conspiracy to violate the FCPA's anti-bribery and books and records provisions; violating the FCPA's anti-bribery provisions; and aiding and abetting FCPA books and record violations).

Resolution Vehicle: Deferred prosecution agreement.

Guidelines Range: $16.8 - $33.6 million.

Penalty: $13.4 million (20% below the minimum guidelines range).

Disclosure: Yes.

Monitor: No.

Individuals Charged by DOJ: No.

Noble Corp. (November 2010)

See here for the prior analysis and principal allegations.

Charges: N/A

Resolution Vehicle: Non-prosecution agreement.

Guidelines Range: Not addressed.

Penalty: $2.6 million.

Disclosure: Yes.

Monitor: No.

Individuals Charged by DOJ: No.

Royal Dutch Shell (November 2010)

See here for the prior analysis and principal allegations.

Charges: Shell Nigeria Exploration and Production Company Ltd. (conspiracy to violate the FCPA's anti-bribery and books and records provisions; aiding and abetting FCPA books and records violations).

Resolution Vehicle: Deferred prosecution agreement.

Guidelines Range: $34.2 - $68.4 million.

Penalty: $30 million (approximately 15% below the minimum guidelines range).

Disclosure: No.

Monitor: No.

Individuals Charged by DOJ: No.

RAE Systems (December 2010)

See here for the prior analysis and principal allegations.

Charges: Although a non-prosecution agreement, the agreements states "knowing violations of the FCPA's books and records and internal controls provisions."

Resolution Vehicle: Non-prosecution agreement.

Guidelines Range: Not addressed.

Penalty: $1.7 million.

Disclosure: Yes.

Monitor: No.

Individuals Charged by DOJ: No.

Alcatel-Lucent (December 2010)

See here for the prior analysis and principal allegations.

Charges: Alcatel-Lucent S.A. (FCPA books and records and internal control provisions); Alcatel-Lucent France S.A., Alcatel-Lucent Trade International A.G., and Alcatel Centroamerica S.A. (conspiracy to violate the FCPA's anti-bribery, books and records, and internal control provisions).

Resolution Vehicle: Alcatel-Lucent S.A. (deferred prosecution agreement); Alcatel-Lucent France S.A., Alcatel-Lucent Trade International A.G., and Alcatel Centroamerica S.A. pleas.

Guidelines Range: $86.58 - $173.16 million.

Penalty: $92 million.

Disclosure: Yes.

Monitor: Yes - three years.

Individuals Charged by DOJ: Yes.

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State of the Union January 26, 2011

Jan. 26, 2011 online at www.uawlocal2250.com

From Automotive News: Toyota Motor Co. struggling to restore its reputation for top quality, today recalled nearly 1.7 million vehicles globally for a variety of fuel system related problems, including 245,000 Lexus IS and Lexus GS sedans in the United States. The North American vehicles are being called back to inspect for possibly faulty installation of fuel pressure sensors. In cases where the sensor is not fastened tightly enough, fuel can leak between the gasket that connects the sensor to the fuel delivery pipes, Toyota said. Today's actions bring the total number of Toyota recalls since fall of 2009 to 18 million vehicles.

Here’s a recap of Toyota’s recalls for 2010 courtesy of Wards Auto:

Jan. 2010 - Toyota issues a series of recalls covering 5.6 million vehicles in the United States due to sudden acceleration in some vehicles. It is the largest ever recall for Toyota and among the biggest for an automaker in U.S. history.

Feb. 2010 - Toyota recalls a total of 437,000 units of its 2010 Prius, Sai, Prius PHV (plug-in hybrid) and Lexus HS250h hybrids globally, including 155,000 in North America, 223,000 in Japan and 53,000 in Europe.

April 16 - Toyota will recall 870,000 Sienna minivans sold in the United States and Canada because the rear-mounted spare tire could drop into the road. Models years involved are 1998 to 2010.

April 19, 2010 - Toyota also announces a recall for nearly 10,000 Lexus GX 460 vehicles sold in the U.S. and Canada to fix software in the electronic stability control system. The GX 460 is new for 2010 and has only been on sale for a few months.

July 29 - Toyota recalls 412,000 passenger cars and SUVs in the U.S. to fix potential problems with steering. The recall involves older-model Toyota Avalon sedans and Lexus LX470 sport utility vehicles.

Aug. 26 - Toyota recalls 1.3 million Corolla and Matrix cars, from 2005-2008 model years, in the United States and Canada carrying defective engine control modules.

Oct. 21 - Toyota will recall a total of about 1.66 million vehicles, mostly in Japan, the United States and China, for problems involving brakes and fuel pumps.

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An Ocean Apart

Under the FCPA "foreign official" is defined, as relevant to this point, as "any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization ...".

Under the U.K. Bribery Act the operative term is "foreign public official" defined, as relevant to this post, as "an individual who - exercises a public function - (i) for or on behalf of a country or territory outside the United Kingdom, or (ii) for any public agency or public enterprise of that country or territory ...".

During a recent Securities Docket's webcast "The Impact of the UK Bribery Act on U.S. Companies," Vivian Robinson QC (General Counsel of the UK's Serious Fraud Office) was asked a question (submitted by me) about officials of so-called state-owned or controlled enterprises ("SOE"). To listen to the Q&A (see here around the 1 hour mark), better yet Bruce Carton (moderator of the event) summarized the Q&A's (here) including the SOE Q&A.

Q: Recognizing that the Bribery Act does not just apply to payments made to "foreign public officials," under the Bribery Act will employees of General Motors or American International Group be deemed "foreign public officials" because the U.S. government owns, either a majority stake or significant stake, in the companies? What standards will the SFO use as to the general issue of alleged so-called state-owned or state-controlled companies?

A: We don't think the Act is directed to people of that sort. We are not regarding employees of a state-owned company as falling in the ambit of Section 6. People can rest assured that is not what we are looking at at all.... Also, such people would not likely have a sufficient connection with the UK.

As I noted in a recent post (here) 60% of corporate FCPA enforcement actions in 2010 and 66% in 2009 involved (in whole or in part) SOE employees.

The DOJ and the SFO are literally separated by an ocean.

The agencies' views on whether SOE employees are "foreign officials" or "foreign public officials" also appears to be an ocean apart.

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State of the Union January 25, 2011

Jan. 25, 2011 online at www.uawlocal2250.com


The production schedule for February has been released. There are two Fridays off – 2/4 and 2/25. Daily line time, including Fridays, is 10.3 off of the K-line with a target of 469 a day.

From Benefits: Retroactive to January 1, 2011 coverage under the Health Care Program for Hourly Employees as it relates to eligible adult dependent children up to age 26 (through the end of the month in which they turn age 26) will also include dental and vision. All employees who are currently covering dependents age 19 up to age 26 for medical coverage will have dental and vision coverage automatically added to their account retroactive to January 1, 2011. Additional information will be mailed to eligible active hourly participants homes in early February.

The third shift that is being added at Flint is not related to a new product. GM North America President Mark Reuss said a pickup in housing and construction projects encouraged the company to boost production of its rugged work trucks. "Adding a third shift is a response to customer demand for heavy-duty pickups, which most people use to tow, haul and plow." GM estimates 750 new jobs will be added (the current Flint line-speed is 30 jobs per hour). No hiring is expected as a result of this announcement.

From the Wall Street Journal: A disastrous recall in 2010 meant Toyota Motor was unable to make the most of a recovering U.S. auto market. This year, its heavy dependence on manufacturing in Japan could limit the company's potential again. Because of Toyota's still heavy dependence on Japan as a production base, not all of the projected sales growth will find its way back to the bottom line. It imports a third of the cars it sells in the U.S., while rival Honda Motors imports only 13%, making it far less exposed to currency swings. Assuming an exchange rate of 80 yen to the dollar, it will cost Toyota 600,000 yen ($7,500) more to manufacture a vehicle in Japan than in North America in the fiscal year starting in April, CLSA figures. With an estimated two million units of exports next year from Japan, that will translate to nearly $15 billion in additional costs.

VAP – overnight drive update: First of all, there is good news: we will have one of our vans added to the fleet. It will be an 8-passenger, all-wheel drive version with a slider door. Since this is a late addition and the choice is not indicated on the entry forms, the 7th name to be drawn out each day will receive the van. You all should have received the handout covering the VAP program. You need to complete the entry forms and return them in the drop box in the cafeteria. There are no collection boxes at the entrances as stated on the handout. If you need an entry form, contact your group leader. The deadline for submitting entries is this Friday, Jan. 28. The drawing will be held on Monday, Jan. 31.

From Automotive News: Antsy Nissan Leaf customers are voicing impatience with the electric vehicle's slower-than-slow U.S. rollout. In December, when the car was launched, Nissan dealers delivered only 19 Leafs to eagerly waiting buyers. But Nissan says the problem is with customer communication, not production. "There is no production delay," says Katherine Zachary, a Nissan North America spokeswoman. "We didn't do a great job communicating about the delivery process with all of our customers." (Let’s see, there are supposedly 20,000 paying customers waiting for a car who can’t get one and it’s not a production problem?)

From the Detroit Free Press: A one-week shutdown at Ford's Dearborn TruckPlant is a symptom of a broader issue facing parts suppliers who are struggling to keep up with increased production demands as the industry recovers, Ford and industry sources said. The 3,000 hourly and salaried workers at Ford's Dearborn Truck plant will be off this week because of a parts shortage affecting engine production for Ford's F-Series pickups at the company's engine plant in Brook Park, Ohio. Although the Ohio plant isn't shut this week, Mike Gammella, president of UAW Local 1250 that represents the engine plant workers, said there have been sporadic one-day shutdowns because of parts shortages from a handful of suppliers. "Suppliers took a lot of capacity out to get through the downturn," said Ford spokesman Todd Nissen. "As volumes have increased for our new, high-volume products, suppliers have had some issues keeping up." Both Nissen and the UAW declined to identify the suppliers or the exact parts.

From Bloomberg News: General Motors Co. Chief Executive Officer Dan Akerson plans to double the 2012 production capacity for the Chevrolet Volt to 120,000 as he works to boost the plug-in hybrid's sales, said two people familiar with the matter. Volt output this year may increase to 25,000 from an original plan of 10,000, Akerson said earlier this month. GM now is working with suppliers to raise 2012 capacity from an earlier target of 60,000. It may not build that many if parts aren't available or demand isn't strong enough, said the people, who didn't want to be named because the plans are private.

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First Enforcement Action of 2011 Involves a Former Executive Officer

In March 2010, Innospec Inc. was charged on both sides of the Atlantic in a joint DOJ / SEC / U.K. Serious Fraud Office enforcement action. (See here and here).

In August 2010, the SEC charged David Turner, the Business Director of Innospec's TEL Group, and Ousama Naaman, the company's agent, for their role in the bribery scheme. (See here). Naaman was also charged by the DOJ, pleaded guilty, and awaits sentencing. (See here).

Yesterday, in the first FCPA enforcement action of the year, the SEC charged Paul Jennings, Innospec's former CFO and CEO, for his involvement in the bribery scheme. (See here). Jennings resigned from Innospec in March 2009 (see here).

Jennings name is now included on a rather short list of high-ranking executives of public companies (or affiliates) recently charged by the SEC in an FCPA enforcement action. In July 2009, Douglas Faggioli (the current President and CEO) and Craig Huff (the former CFO) of Nature's Sunshine Products were charged (see here); in September 2008, Albert Jackson Stanley (the former CEO of Kellogg Brown & Root Inc.) was charged (see here); in December 2007, Robert Philip (the former Chairman/CEO of Schnitzer Steel was charged (see here); and in September 2007, Monty Fu (the former Chairman of Syncor International Corp. was charged (see here).

The facts of the underlying bribery scheme in the Jennings enforcement action are detailed in the prior posts linked above and this post details the allegations in the SEC's complaint (here) regarding Jennings knowledge and involvement in the scheme.

In summary fashion, the complaint alleges as follows:

"This action arises from widespread bribery of foreign officials by Innospec, Inc., some of which occurred and was approved by Paul W. Jennings beginning in mid to late 2004 during his tenure as Chief Financial Officer ("CFO") and continuing after he became Chief Executive Officer ("CEO") in 2005."

"Beginning in mid to late 2004, Jennings, who held various senior roles at Innospec, including CFO and CEO, actively participated in the bribery schemes in Iraq and Indonesia."

"Jennings violated [the FCPA's anti-bribery provisions] by engaging in widespread bribery of government officials in Iraq during the post-Oil for Food period in order to sell TEL to the Iraqi Ministry of Oil ("MoO") and by engaging in bribery of Indonesian officials to sell TEL to state owned oil companies in Indonesia. Jennings aided and abetted Innospec's violations of [the FCPA's anti-bribery provisions] by substantially assisting in Innospec's bribery of Iraqi and Indonesian government officials."

"Innospec, a U.S. issuer, made use of U.S. mails and interstate commerce to carry out the scheme, and Jennings, a dual U.S. and U.K. national was complicit in the scheme. Jennings both sent and received e-mails to and from the United States to carry out the scheme. He also used interstate commerce and the mails as part of the scheme. Jennings obtained $116,092 in bonuses that were tied to the success of the TEL sales, which were procured through bribery."

"Jennings also violated Section13(b)(5)of the Exchange Act and Rule 13b2-1 thereunder by falsifying documents as part of the bribery scheme. Jennings also violated Exchange Act Rule 13b2-2 by making false statements to accountants and violated Exchange Act Rule 13a-14 by signing false personal certifications required by the Sarbanes-Oxley Act of 2002 that were attached to annual and quarterly Innospec public filings."

"Jennings also aided and abetted Innospec's violations of [the FCPA's books and records and internal control provisions] by substantially assisting in Innospec's failure to maintain internal controls to detect and prevent bribery of officials in Iraq and Indonesia, and the improper recording of the illicit payments in Innospec's books and records."

According to the SEC, "beginning in 2005, Jennings, along with other members of Innospec's management, approved bribery payments to officials at the Iraqi Ministry of Oil in order to sell TEL to Iraq. The complaint alleges that Innospec, with the approval of Jennings, used Naaman as its agent in Iraq to make improper payments and the complaint alleges that Jennings was copied on certain e-mails between Naaman and Turner discussing the bribery scheme. The complaint further alleges that Jennings approved certain payments to Naaman to facilitate the bribery scheme including certain payments Jennings approved "while in the United States." Many of the SEC's allegations as to the Iraqi conduct are phrased as Jennings had "general knowledge" or that Jennings was "generally aware" of the conduct at issue.

As to Indonesian payments, the complaint alleges that "Jennings became aware of and approved the improper payments to Indonesian government officials in order to win contracts for the sale of TEL to state owned oil and gas companies. Among other allegations, the complaint alleges that "in December 2004, Jennings and Executive B [the CEO of Innospec from 1998 to April 2005] discussed Innospec's bribery scheme in Iraq and Indonesia on a flight from Denver to New York" and that "while Indonesian Agent was in the United States during the holidays, various e-mails were sent to and from the United States that discussed Jennings' and Turner's continued efforts to support Indonesian Agent's payment of bribes on Innospec's behalf." The SEC also alleges that the "bribery scheme" was also discussed "during Jennings' performance review in January 2005."

As to Jennings false certifications, the complaint alleges as follows.

"From 2004 to February 2009, Jennings signed annual certifications that were provided to auditors where he falsely stated that he complied with Innospec's Code of Ethics incorporating the company's Foreign Corrupt Practices Act policy, and that he was unaware of any violations of the Code of Ethics by anyone else. During that time frame, Jennings actively participated in bribery of Iraqi and Indonesian officials as described above. Jennings also signed annual and quarterly personal certifications pursuant to the Sarbanes-Oxley Act of 2002 in which Jennings made false certifications concerning the company's books and records and internal controls. Jennings also signed false management certifications to Innospec's auditors indicating that the books and records were accurate and that Innospec had appropriate internal controls."

As noted in the SEC release, without admitting or denying the SEC's allegations, Jennings agreed to disgorge $116,092 plus prejudgment interest of $12,945 and pay a civil penalty of $100,000. The SEC stated that the figures take into consideration Jennings's cooperation in this matter.

In the release, Cheryl Scarboro (Chief of the SEC's FCPA Unit) stated, "we will vigorously hold accountable those who approve such bribery and who sign false SOX certifications and other documents to cover up the wrongdoing."

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State of the Union January 24, 2011

Jan. 24, 2011 online at www.uawlocal2250.com

Correction: Some copies of the State of the Union from Friday, Jan. 21 said that the long February weekend for the VAP Make-A-Wish raffle was the third weekend. That is incorrect. As it stands now, the long weekend is the 4th weekend, or the weekend of Feb. 25, 26 and 27. Since that Friday is tentatively scheduled off, the winners will have the vehicles for 5 days beginning Wednesday, Feb. 23.

From the Detroit News: Small businesses spent big last year to replace their aging cars and trucks, another indication that the auto industry is rebounding. General Motors Co. said Friday that Chevrolet sales to small businesses shot up 36 percent in the fourth quarter of 2010 over the year earlier, outpacing the brand's overall performance. Ford Motor Co. does not specifically track sales to small companies, said George Pipas, a market analyst for the Dearborn automaker. But he said Ford's sales to businesses that buy work vehicles rose more than 70 percent last year. Most businesses buy pickups and cargo vans, according to GM. "A lot of companies have reached a point where the existing trucks they have need to be replaced," said Ron Childress, a commercial truck sales manager at Ed Rinke Chevrolet Buick GMC in Center Line. "In fact, we're stocking more trucks this year just because we believe 2011 is going to be a much better year than 2010."

From the Detroit Free Press: Ford Motor Co. plans to announce year-end financial results Friday and is poised to report a profit for 2010 of about $8 billion excluding onetime charges -- the automaker's biggest annual profit in a decade. Ford usually announces how much annual profit-sharing checks will be that day. The checks, expected in March, could give the local economy a $240-million boost, said David Sowerby, economist and chief portfolio manager for Loomis Sayles. Bernie Ricke, president of UAW Local 600, said the checks will be "fairly significant and more than we've seen in several years."

From the Detroit News: General Motors Co. is expected to announce a major investment Monday to increase truck production at its Flint Assembly plant, adding a third shift and more than 650 jobs, according to sources familiar with the plan. The plant in economically ravaged Flint, builds big trucks, such as the Chevrolet Silverado and GMC Sierra. It employs about 2,000 hourly and salaried workers. GM hourly workers on layoff would be eligible for the jobs added at Flint Assembly. The sources didn't have details on the amount of the investment, or exactly how the money would be used. GM officials declined to comment Friday. Gov. Rick Snyder is scheduled to visit Flint on Monday, but a spokeswoman for the governor declined to divulge details.

From the Wall Street Journal: Even as organized labor's share of America's public and private work force continued to slide last year, unions appeared to be growing in one place, among government managers and high-paid workers. The moves come as union membership as a whole continues to slide in the U.S., both in the public and private sectors. Union members accounted for only 11.9% of the work force in 2010, the Labor Department reported Friday, down from 12.3% in 2009 and far below the peak of 28.3% hit in 1954. The 7.6 million government workers in unions made up more than half of the 14.7 million workers in the U.S. who belonged to a union last year, with the state and local government sectors among the most heavily unionized in the economy.

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The Akim Of Nookat, Lots Of Nigerian Customs Officials, The Congo Merchant Marine, And Lots Of Telecom Employees - The "Foreign Officials" Of 2010

A "foreign official".

Without one, there can be no FCPA anti-bribery violation (civil or criminal).

Besides the fake Gabonese "foreign official" in the Africa Sting cases, who where the "foreign officials" of 2010?

This post describes the categories of "foreign officials" from 2010 corporate FCPA enforcement actions.

By my count, there were 21 corporate FCPA enforcement actions in 2010 (DOJ and SEC). (See here for my SEC FCPA Enforcement Year in Review - stay tuned for a similar DOJ FCPA Enforcement Year in Review).

I excluded from the tally, the General Electric SEC enforcement action as it related only to Iraqi Oil for Food conduct (and alleged kickback payments to the Iraqi government - not to any specific "foreign official) and thus resulted in FCPA books and records and internal controls charges only. There were other Iraqi Oil for Food cases in 2010, including Innospec, Daimler, and ABB, but these enforcement actions stayed on the list because the allegations related to other conduct as well.

In addition to the GE action, there were two additional FCPA books and records and internal controls only cases in 2010 - Natco Group and Veraz Networks. However, these enforcement actions stayed on the list because, let's face it, if an employee from either of these companies consistently entertained their brother-in-law in the corporate suite and sought reimbursement for "client entertainment" you wouldn't be reading about it - even if such conduct would nevertheless likely constitute an FCPA books and records and internal control violation. In other words, Natco Group and Veraz Networks, even if only FCPA books and records and internal controls cases, remain very much about the "foreign officials" in those cases.

Of the 20 corporate enforcement actions, 12 enforcement actions (60%) involved (in whole or in part) employees of alleged state-owned or state-controlled enterprises ("SOE"). In these cases, the enforcement agencies generally allege that such enterprises are "instrumentalities" of a foreign government and that such employees are therefore "foreign officials" under the FCPA. However, as I noted in my prepared Senate testimony (here) this central feature of FCPA enforcement contradicts the intent of Congress in enacting the FCPA.

The 60% figure from 2010 FCPA enforcement is similar to the 66% figure I calculated from 2009 FCPA enforcement (see here pages 410-414). As in 2009, the impact of this dubious "foreign official" interpretation extends beyond corporate FCPA enforcement actions as this interpretation is also at the core of several individual FCPA prosecutions - most notably in 2010, the many individual prosecutions (Lindsey, Lee, Aguilars, O'Shea, and Basurto) involving officials of Comision Federal de Electricidad - an alleged Mexican SOE.

Not only did SOE employees comprise the bulk of "foreign officials" in 2010, but so too did individuals with apparent ministerial or clerical duties.

Of the 20 corporate enforcement actions, 10 enforcement actions (50%) - including most notably all the Panlapina-related enforcement actions - involved (in whole or in part) officials with apparent ministerial or clerical duties such as customs, immigration and tax matters

Why is this noteworthy?

The FCPA's original definition of "foreign official" was as follows. "... any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or any person acting in an official capacity for or on behalf of such government or department, agency or instrumentality. Such terms does not include any employee of a foreign government or any department, agency, or instrumentality thereof whose duties are essentially ministerial or clerical."

This last sentence was the FCPA's original (albeit indirect) facilitating payment or grease exception. The relevant House Report states in pertinent part as follows: "... a gratuity paid to a customs official to speed the processing of a customs document would not be reached by this bill. Nor would it reach payments made to secure permits, licenses, or the expeditious performance of similar duties of an essentially ministerial or clerical nature which must be performed in any event."

When Congress amended the FCPA in 1988 it, among other things, amended the definition of foreign official by removing this indirect facilitating payment exception from the "foreign official" definition by creating a stand-alone facilitating payment exception currently found in the statute.

The relevant House Report indicates that Congress did not seek to disturb Congress's original intent. "The policy adopted by Congress in 1977 remains valid, in terms of both U.S. law enforcement and foreign relations considerations. Any prohibition under U.S. law against this type of petty corruption would be exceedingly difficult to enforce, not only by U.S. prosecutors but by company officials themselves. Thus while such payments should not be condoned, they may appropriately be excluded from the reach of the FCPA. U.S. enforcement resources should be devoted to activities have much greater impact on foreign policy."

The remainder of this post describes (as per DOJ/SEC allegations) the "foreign officials" of 2010. As apparent from the descriptions below, in certain instances the enforcement agencies describe the "foreign official" with reasonable specificity; in other instances with virtually no specificity.

Natco Group

Kazakhstan immigration authorities; employees of the Kazakh Ministry of Labor

Innospec

Iraqi Ministry of Oil and its component oil refineries (MoO) officials;

Official X of the Indonesian Ministry of Energy and Mineral Resources who later became a senior official at BP Migas, an Indonesian state owned oil and gas company; officials at Pertamina, another state owned oil company related to BP Migas.

Daimler

Russian government officials employed at Russian government customers (Russian Ministry of Internal Affairs, the Russian military, the City of Moscow, the City of Ufa, and the City of Novi Urengoi); Machinoimport and Dorinvest, both Russian government purchasing agents for the City of Moscow; Russian government officials employed by state-owned customers; Russian military officials; official with the Department of Communal Economy and Town Improvements for the City of Ufa, a Russian municipal government official; a senior municipal government official with the city of Novi Urengoi.

Chinese government customers – including principally the Bureau of Geophysical Prospecting, a division of the China National Petroleum Corporation, a Chinese state-owned oil company and Sinopec, a Chinese state owned energy company; Changqing Petroleum – a Chinese state-owned or controlled entity in the energy sector.

Saigon Passenger Transport Company a government entity in Vietnam; government official with the government owned Saigon High Tech Park; officials of a Vietnamese government office associated with import licensing; Ministry of Public Security official.

High-level executive official of Turkmenistan’s government; various officials of the Turkmenistan government.

Nigerian government officials; Nigerian officials to secure a State House (Nigerian Presidential Complex) contract; high-level executive branch official of Nigeria; chief buyer for the State House contract; Savannah Sugar Company Ltd – a Nigerian sugar company that was then majority owned by the Nigerian government; Nigerian police force; government official with the Ministry of Industry and an employee of the Ministry; Comite d’ Organisation de Jeux Africains – a state controlled agency organization committee for the All-Africa games; a senior Nigerian diplomat in Brazil.

Government officials at customers in the Ivory Coast and elsewhere in West Africa.

Ghanaian army officials.

Senior executive branch official in Liberia.

Members of the Riga City Council; members of the political party in control of the Riga City council; members of a different political party that was in control of the Riga City Council.

Volanbusz – a state owned regional public transport company in Budapest.

An executive of Mangyong Trading Corporation, an instrumentality of the North Korean government.

E.S.H.O.T. – a public transport agency for the municipality of Izmir in Turkey; Turkish police through the Ministry of Interior.

Perum Damri – an Indonesian state-owned bus company; tax officials in Indonesia.

Croatian government officials; Croatian Ministry of the Interior official; IM Metal – a Croatian government controlled and partially owned former weapons manufacturer and an instrumentality of the Croatian government.

Technip

"The Nigerian National Petroleum Corporation ("NNPC") was a
Nigerian government-owned company charged with development of Nigeria's oil and gas wealth and regulation of the country's oil and gas industry. NNPC was a shareholder in certain joint ventures with multinational oil companies. NNPC was an entity and instrumentality of the Government of Nigeria and officers and employees of NNPC were "foreign officials" within the meaning of the FCPA." "Nigeria LNG Limited ('NLNG') was created by the Nigerian government to develop the Bonny Island Project and was the entity that awarded the related EPC contracts. The largest shareholder of NLNG was NNPC, which owned 49% of NLNG. The other owners of NLNG were multinational oil companies. Through the NLNG board members appointed by NNPC, among other means, the Nigerian government exercised control over NLNG, including but not limited to the ability to block the award of EPC contracts. NLNG was an entity and instrumentality of the Government of Nigeria and its officers and employees were "foreign officials."

Nigerian government officials, including officials of the executive branch of the government of Nigeria; a political party in Nigeria; a senior official of the Ministry of Petroleum.

Eni / Snamprogetti

Same as Technip described above.

Veraz Networks

Employees of government-controlled telecommunications companies in China and Vietnam

Alliance One

"... The government of Kyrgyzstan established the Kyrgyz Tamekisi an agency and instrumentality of the government, to manage and control the government-owned share of the tobacco processing facilities throughout Kyrgyzstan. Kyrgyz Official A served as the General Director of the Tamekisi and as such was a foreign official within the meaning of the FCPA." "In Kyrgyzstan, each municipal, district or provincial government unit was headed by a public official known as an “akim” who was appointed to the post by the President of Kyrgyzastan on the advice of the Prime Minister. Accordingly, the Akims were 'foreign officials' within the meaning of the FCPA. Each Akim could exercise authority over the sale of tobacco by the growers within the local geographical area."

The following Akims are referenced: the Akim of Nookat; the Akim of Alabuka; the Akim of Alafuko; and the Akim of Chilik. Kyrgyz tax inspection police foreign officials.

"The government of Thailand established the Thailand Tobacco Monopoly as an agency and instrumentality of the government, to manage and control the government-owned tobacco industry in Thailand. The TTM supervised the cultivation of domestic tobacco crops, purchased imported tobacco and manufactured cigarettes and other tobacco products in Thailand. The TTM was headed by a managing director appointed by the Finance Ministry, who reported through a board of directors directly to the Minster of Finance of Thailand and, as such, was a 'foreign official' within the meaning of the FCPA.”

Universal

Same TTM officials as Alliance One.

Five Mozambiquen government officials and/or their family members; wife of an official in the Mozambique Ministry of Agriculture and Fisheries; brother of an official in Ministry of Agriculture and Fisheries; Governor in Mozambique.

High-ranking Malawian government officials; political opposition leader.

ABB

"Comision Federal de Electricidad was an electric utlility company owned by the United Mexican states and responsible for supplying electricity to all of Mexico other than Mexico City. CFE officials N, J, C, and G held official positions a CFE and had influence over decisions concerning ABB’s contracts with CFE. CFE officials N,J,C and G, were “foreign officials” as that term is defined in the FCPA."

Panalpina

"Officials of the Nigerian Customs Service [NCS], a Nigieran government agency within the Ministry of Finance of the Federal Republic of Nigeria. The NCS was responsible for assessing and collecting duties and tariffs on goods imported into Nigeria. The NCS was an agency and instrumentality of the government of Nigiera and its employees were foreign officials within the meaning of the FCPA"; Nigerian government officials, most of the payments were paid to NCS officials; Nigeria Port Authority officials; Maritime Authority officials, police officials, Department of Peteroleum officials, immigration authority officials, and National Authority for Food and Drug Control officials;

"Nigerian National Petroleum Investment Management Services [NAPIMS] officials. NAPIMS is a component of Nigeria National Petroleum Corporation [NNPC], a Nigerian government owned oil company, that supervises and manages Nigeria’s investment in the oil and gas industry. NNPC was an agency and instrumentality of the government of Nigiera and its employees were foreign officials within the meaning of the FCPA. As part of its oversight authority, NAPIMS officials had the authority to approve or disapprove logistics contracts awarded for joint venture projets. NAPIMS employees were foreign officials."

Angolan government officials responsible for customs and immigration matters; Angolan government officials responsible for Angolan oil and gas operations; customs officials, Economic Police, Port Authority officials, and other Angolan officials; Angolan immigration and/or Ministry of Petroleum officials; Angolan military officials.

Azeri government officials responsible for assessing and collecting duties and tariffs on imported goods; Azeri tax officials.

Brazilian government officials responsible for assessing and collecting duties and tariffs on imported goods.

Kazakh government officials, including officials responsible for assessing and collecting duties and tariffs on imported goods and officials responsible for administering and enforcing Kazakh tax policy.

Russian government officials responsible for assessing and collecting duties on imported goods.

Turkmen government officials responsible for assessing and collecting duties and tariffs on imported goods to expedite the release of shipments and undocumented shipments and to cirucumvent the official Turkmen customs and immigration regulations; Turkmen government officials responsible for auditing, assessing, and collecting taxes on economic activity in Turkmenistan; and Turkmen government officials responsible for enforcing Turkmenistan labor, health, and safety laws.

Pride International

Same NCS officials as described above.

"Petroleos de Venezuela S.A. [PDVSA] was a Venezuelan state-owned oil company. In 1975, the government of Venezuela established PDVSA, an agency and instrumentality of the government, to manage and control the exploration, production, refinement, and transport of oil as well as the exploration and production of natural gas in Venezuela. Officals and members of the board of directors of PDVSA were foreign officials within the meaning of the FCPA."

"The customs, excise and gold appellate tribunal [CEGAT] in India was an administrative judicial tribunal. Judges who were members of the CEGAT were 'foreign officials' within the meaning of the FCPA."

"The Mexico customs official was a customs administrator operations assistant for the Mexican Customs Service. The Mexico customs official was a foreign official within the meaning of the FCPA."

Kazakh customs officials; Kazakh tax officials; Nigerian tax officials; Saudi customs officials; Congo Merchant Marine official; officials of Libya’s social security agency, INAS.

Tidewater

Same NCS officials as described above.

“The general state tax inspection office within the Ministry of Finance for the Republic of Azerbaijian (later renamed the Ministry of Taxes for the Republic of Azerbaijan – collectively referred to as the Azeri Tax Authority) was responsible for administering and collecting tax assessments and duties for the Republic of Azerbaijan. The Azeri Tax authority was an agency and instrumentality of the Republic of Azerbaijan and its employees, including tax inspectors, were foreign officials.

Transocean

Same NCS officials as described above.

GlobalSantaFe

Same NCS officials as described above.

"Government officials in Gabon, Angola, and Equitorial Guinea.”

Noble

Same NCS officials as described above.

Royal Dutch Shell

Same NCS officials as described above.

RAE Systems

"A significant number of RAE-KLH's and RAE Fushun's customers were [China] government departments and bureaus and large state-owned agencies and instrumentalities."

"The Lanzhou City Honggu Mining Safety Bureau, for example, was a government customer. Other government clients included regional fire departments, emergency response departments, and entities under the supervision of the provincial environmental agency."

"officials of a state-owned enterprise doing business in the Dagang Oil Field."

"Deputy Director of a state-owned chemical plant."

Alcatel Lucent

"Instituto Costarricense de Electricidad S.A. was a wholly state-owned telecommunications authority in Costa Rica responsible for awarding and administering public tenders for telecommunications contracts. ICE was governed by a seven member board of directors that evaluated and approved, on behalf of the government of Costa Rica, all bid proposals submitted by telecommunications companies. The board of directors was led by an executive president, who was appointed by the President of Costa Rica. The other members of the board of directors were appointed by the President of Costa Rica and the Costa Rican cabinet. Accordingly, officers, directors and employees of ICE were foreign officials."

"High ranking official in the Costa Rican executive branch. Legislator in the legislative assembly."

"Empresa Hondurena de Telecomunicaciones [Hondutel] a wholly state-owned telecommunications authority in Honduras, established under Honduran law, and it was responsible for providing telecommunications services in Honduras which until late 2002, included evaluating and awarding telecommunications contracts on behalf of the government of Honduras. Several senior government officials sat on Hondutel’s board of directors. Hondutel’s operations were overseen by another Honduran government entity, Comision Nacional de Telecomunicaciones. Profits earned by Hondutel belonged to the government of Honduras, though part of the profit was permitted to be used by Hondutel for its operations. Accordingly, employees of Hondutel were “foreign officials."

"Comision Nacional de Telecomunicaciones [Contal] was the Honduran government agency that regulated the telecommunications sector in Honduras. Contal was part of the Honduran executive branch under the Secretariat of Finance. Conatel’s commissioners were appointed by the President of Honduras. Accordingly, officers, commissions and employees were foreign officials."

"High ranking government officials in the Honduran executive branch."

"Telekom Malaysia Berhad ('Telekom Malaysia') was a state-owned and controlled telecommunications provider in Malaysia. Telekom Malaysia was responsible for awarding telecommunications contracts during the relevant time period. The Malaysian Ministry of Finance owned approximately 43% of Telekom Malaysia's shares, had veto power over all major expenditures, and made important operational decisions. The government owned its interest in Telekom Malaysia through the Minister of Finance, who had the status of a 'special shareholder.' Most senior Telekom Malaysia officers were political appointees, including the Chairman and Director, the Chairman of the Board of the Tender Committee, and the Executive Director. Accordingly, officers, directors and employees of Telekom Malaysia were 'foreign officials' within the meaning of the FCPA."

"Taiwan Railway Administration was the wholly state-owned authority in Taiwan responsible for managing, maintaining and running passenger freight service on Taiwan’s railroad lines. It was responsible for awarding and administering all public tenders in connection with Taiwan’s railroad lines, including contracts to design, manufacture, and install an axle counting system to control rail traffic. TRA was an agency of Taiwan’s Ministry of Transportation and Communications, a cabinet level governmental body responsible for the regulation of transportation and communications networks and operations. Accordingly, officers and employees of TRA were foreign officials."

"Members of the Legislative Yuan, the unicameral legislative assembly of the Republic of China."

"Kenyan government officials who had played a role in awarding the original contract to French telecom."

Government officials in Nigeria including the Nigerian police, a former Nigerian Ambassador to the United Nations to arrange a meeting with Nigerian Senior Government Official 1 – a high-ranking official in the Nigerian executive branch, and People Democratic Party officials.

"Bangladesh Telegraph and Telephone Board" – the state-controlled telecommunications services provider.

"Andinatel, Pacifictel, and Empressa Muncipal de Telecomunicaciones, Agua Potable, Alcantarillados y Saneamiento – all state-owned telecommunications companies."

Empresa Nicaraguense de Telecomunicaciones S.A., state owned during the relevant time period

Angolan telecommunications company with close ties to Angolan senior government official – a high-ranking Angolan executive branch official.

An Ivory Coast company – registered in the Ivory Coast with ooperations in Ivory Coast and Burkina Faso. Company was owned by an Ivory Coast government official. Government official ran Ivory Coast Company’s operations from his government office and was a close advisor to a high-ranking official in the Ivory Coast excecutive branch.

Uganda company registered in Uganada with operations in that country. One of the owners was a close friend of an advisor to a high-ranking official in the Uganadan executive.

Senior executive of the state controlled celluar telephone company in Mali.

Lindsey Manufacturing

"Comision Federal de Electricidad [CFE] was an electric utlity company owned by the government of Mexico. During the time period relevant to this indictment, CFE was responsible for supplying electricity to all of Mexico other than Mexico City."

"Official 1 was a Mexican citizen who held a senior level position at CFE. Official 1 became the sub-director of generation for CFE in 2002 and the Director of operations in 2007. Officials 1’s position at CFE made him a foreign official."

"Official 2 was a Mexican citizen who also held a senior level position at CFE. Official 2 was the Director of Operations at CFE until that position was taken over by Offical 1 in 2007. Officials 2’s position at CFE made him a foreign official."

Mercator Corp.

“three senior officials of the Kazakh Government"

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State of the Union January 21, 2011

Jan. 21, 2011 online at www.uawlocal2250.com

From Chairman Mike Bullock: Management has agreed to delay the layoff of 10 employees until Friday, Feb. 11(the layoff was originally scheduled for Jan. 28). These extra weeks will entitle them to additional health care benefits

Everyone should have received a handout about the VAP (overnight drive) program. If not, contact your group leader. You need to fill out the entry form on the bottom and drop it in the box in the cafeteria. The deadline to submit entries is Friday, Jan. 28. This year, winners will have the vehicle for two nights instead of one. Also, there will be a raffle for the vehicles over the third weekend of February (which will be extended because of the off-day that Friday to 5 days) to benefit this year’s Make-A-Wish dream. Ticket sales will begin Tuesday, Feb. 1. Tickets will be $5 or 3 for $10.

From USA Today: Nissan is looking to jump start its first commercial truck sales by offering companies free graphics slathered on the sides of their Nissan delivery vans. "We're taking an innovative approach to offering...custom exterior graphics right from the launch of the exciting new Nissan NV," said Joe Castelli, vice president, Nissan Commercial Vehicles. "We know commercial vehicle buyers customize their vehicles to meet their business needs, and we want to be part of the solution for them." The deal is being put to companies that buy or lease a new Nissan NV1500, NV2500 HD or NV3500 HD commercial van. The no-charge upgrade program is offered through Nissan Commercial Vehicle dealers to qualified commercial businesses. Prices start at $24,590.(ed. Note: While there has been much coverage of the launch of this van, there have been no sales estimates offered by Nissan. They have only lined up 250 dealers to sell them. The van offers only one wheelbase, two engine choices, and no 60/40 door option on either side. They are banking heavily on a pickup-cab interior and a high roof option.)

Chrysler CEO Sergio Marchionne had this to say when asked about the level of fleet versus retail sales for the compact Dodge Caliber: "To call the Caliber a retail vehicle would be an absolute abomination. It's not true," he said. "But when you tell me, 'Buddy your C-segment car is the Caliber' and it's the only thing I've got and then you want me to tell you how many of those are fleet, that's the day I would prefer to slash my wrists."

Here’s the final part of UAW President Bob King’s speech to the Automotive News Congress seminar:
If a company makes the business decision to engage in anti-union activity and suppress the rights of freedom of speech and assembly, we will launch a global campaign to brand that company as a human rights violator. We are joining with our sister unions in the U.S. and around the world, friends and allies in the U.S. and around the world, and together we will wage a united front to expose and publicize any auto company whose aim is the destruction of the right to organize and the institution of collective bargaining.

We are establishing the UAW Global Organizing Institute whose mission is to recruit young people and other activists to demonstrate globally on behalf of Workers’ Right to Organize Unions.

We do not want to fight with any company. We want to help companies produce the best cars for the best value. We do not want an adversarial relationship. We seek common ground and common goals. We do not want to spend all of our resources to defend the rights of workers to organize; we would rather spend our resources helping to fund innovation and training and collaborative projects.

We do not want to fight, but we will not run from a fight. The UAW will not rest until workers in the United States and globally are guaranteed their First Amendment right to organize and bargain collectively.

Unions are vital to democracy. Unions are essential to social justice. Like any social institution, unions are not perfect. But unions are the sole vehicle throughout history by which working people have gained a voice on the job and a decent standard of living. Just as the UAW helped to build the American middle class, the UAW will now work to build a global middle class. The interests of American workers are inextricably linked to the aspirations and uplifting of the world’s poor.
The best way to achieve global prosperity and as a result global peace is to support workers rights to organize and collectively bargain. We see this need dramatically in China, India, Bangladesh, Mexico, and many other parts of the world.

In conclusion I want to emphasize what we see as the fundamental question of this moment in history. The question is not whether unions are perfect. We are not. The question is not whether management would prefer to operate without a union. No doubt, many managers would. The fundamental question is a question of freedom and democracy: whether societies will allow workers who want unions to form unions. The UAW will not rest until that freedom is secured for workers in America and throughout the world.

We are saying to global corporations that the best moral decision AND the best business decision is to work with the UAW and to respect workers democratic right to choose to form their local union or not to! If management and labor in the automotive industry work together we can create a strong global middle class just as the UAW and automotive companies created the U.S. middle class. I believe this is our calling, this is our opportunity: We will together build a better world by together building a global middle class.

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Friday Roundup

FCPA enforcement down 100% and some items for the weekend watch/read list.

Enforcement Down 100%

Last year at this time there were already 23 FCPA enforcement actions (22 defendants in the Africa Sting case and the Natco Group enforcement action).

So far this year there have been 0.

Thus, FCPA enforcement is down 100%.

I don't expect you to take this statistic seriously and I don't intend it to be. Rather, it is meant as a commentary on the often times odd obsession some have with FCPA enforcement statistics (misleading as they may be in many cases).

On to more meaningful commentary by others.

For Your Viewing Pleasure

Two titans of the FCPA bar, Homer Moyer (here) and Martin Weinstein (here) were recently the focus of separate interviews on the BulletProofBlog as to various FCPA topics.

Informative views here and here.

For Your Reading Pleasure

Gary Stein (here - Schulte Roth & Zable) has an informative overview (here) of "Sentencing of Individuals in FCPA Cases."

I've been documenting the growing trend of judges significantly rejecting DOJ sentencing recommendations in FCPA cases (see here) and Stein "hits the nail on the head" with this paragraph:

"The DOJ exercises virtually unlimited discretion in deciding who gets charged in FCPA cases and, for all practical purposes, in deciding the amount of the financial penalty imposed against corporate violators. But sentencing of individual defendants, particularly after U.S. v. Booker, is ultimately a matter of judicial, not prosecutorial discretion. And it has become apparent that there is a wide and growing rift between the views of the DOJ and the courts as to the appropriate sentences for individual violators in FCPA cases."

Tired of all the "are you ready" hysteria surrounding the U.K. Bribery Act?

If so, you will want to read "Keep Calm and Carry On" (here) by Alexandra Wrage (President of Trace) recently published by In Compliance Magazine. Among other things, Wrage states that "the argument that companies that have navigated FCPA waters for a decade or more are unprepared for the new UK Act is unfounded."

See here for my "bold" prediction that implementation of the U.K. Bribery Act (whenever that occurs) is not that big of deal for most companies and that U.K. enforcement of the Bribery Act is likely to be measured and disciplined.

*****

A good weekend to all.

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