ANTI-CORRUPTION Quarterly 2nd Quarter 2015 IN THIS ISSUE: FCPA IMPLICATIONS OF RECENT DODD-FRANK WHISTLEBLOWER AWARDS FEATURES Under the Dodd-Frank Act, whistleblowers who provide information that helps the SEC recover money for violations of federal securities laws—including FCPA IMPLICATIONS OF RECENT the FCPA—can receive as much as 30 percent of the amount recovered. This DODD-FRANK WHISTLEBLOWER whistleblower bounty creates a strong financial incentive to report potential AWARDS ............................................ 1 violations. Recent whistleblower awards show just how strong that incentive is. And the rise in whistleblower tips related to potential FCPA violations, IMPACT OF THE CURRENT FIFA SCANDAL: DOJ TARGETS combined with an increase in awards to individuals abroad, suggests that the INTERNATIONAL CORRUPTION whistleblower provision is likely to have an increasing influence on corporate BEYOND THE FCPA ......................... 1 FCPA compliance. CONTINUED ON PAGE 4 COLUMNS GLOBAL WATCH ............................... 1 IMPACT OF THE CURRENT FIFA SCANDAL: DOJ TARGETS INTERNATIONAL CORRUPTION BEYOND THE FCPA IN THE INTERIM ................................ 2 On May 27, 2015, the Department of Justice announced an indictment against nine high-ranking Fédération Internationale de Football Association (FIFA) COMPLIANCE CORNER: officials and five corporate executives on corruption charges. The 164-page COMPLIANCE OFFICERS BEWARE: INDIVIDUALS PAYING THE PRICE indictment alleges that the defendants took advantage of their positions in UNDER THE FCPA AND NON-U.S. organized soccer to unlawfully enrich themselves. While none of the current ANTI-CORRUPTION LAWS .............. 4 allegations gives rise to an FCPA violation, the FIFA indictment, together with other recent enforcement actions against Goodyear Tire & Rubber Company OF NOTE ........................................... 8 and Diebold, Inc., demonstrates that federal prosecutors are pursuing aggressively all forms of corrupt payments, not just those that violate the FCPA. CONTINUED ON PAGE 6 GLOBAL WATCH HIRING FAMILY MEMBERS OF FOREIGN OFFICIALS COMES WITH A RISK The U.S. government recently increased scrutiny of companies’ hiring of the children of foreign officials, alleging that such practices could amount to bribery under the FCPA. The SEC and DOJ reportedly are investigating whether the hiring of children of prominent foreign officials was done for the purpose of assisting companies in winning lucrative business. The VISIT SIDLEY.COM FOR MORE INFORMATION ON SIDLEY’S investigations initially focused on U.S. banks, but in 2014 the government FCPA/ANTI-CORRUPTION PRACTICE began widening its net, asking global companies in a range of industries for information on their hiring practices, with a focus on Asia. This Sidley update has been prepared by Sidley Austin LLP for informational purposes only and does not constitute While these investigations are ongoing, some believe the DOJ sent mixed legal advice. This information is not intended to create, and receipt of it does not constitute a lawyer-client relationship. signals at the June 2015 International Bar Association Anti-Corruption Readers should not act upon this without seeking advice from Conference, where Assistant Chief Matthew Queler of the DOJ’s FCPA professional advisers. Attorney Advertising—For purposes of compliance with New unit told the audience that hiring children of foreign officials does York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One not necessarily run afoul of the FCPA. Queler added that, if a foreign South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000. Sidley official’s child is the best qualified for the job and the employment offer Austin refers to Sidley Austin LLP and affiliated partnerships as explained at sidley.com/disclaimer. CONTINUED ON PAGE 7 Prior results described herein do not guarantee a similar outcome. ANTI-CORRUPTION Quarterly IN THE INTERIM 4/1/2015 – The SEC 4/17/2015 – The UK 4/27/2015 – Connecticut- 5/4/2015 – An Austrian announced its first Serious Fraud Office (SFO) based United Technologies court refused to extradite enforcement action against brought new charges Corp. disclosed that it had the pro-Russian Ukrainian a company for using against a UK subsidiary of received a second subpoena energy executive, Dmytro restrictive language in Paris-based Alstom S.A. from the SEC seeking Firtash, to the U.S., confidentiality agreements for alleged corruption in a information about potential claiming FCPA and related in violation of Dodd- project to supply trains to payments by a company charges against him were Frank’s whistleblower the Budapest Metro in 2006 agent in China that might politically motivated. protection Rule 21F-17. and 2007. In December, have violated the FCPA. Austrian authorities had KBR, a Houston-based Alstom pleaded guilty in The SEC issued its first detained Firtash in March technology and engineering the U.S. to violating the subpoena in April 2014. 2014 on an arrest warrant firm, had required FCPA by bribing officials issued by the U.S. Firtash 4/29/2015 – The SEC witnesses in certain in Indonesia, Saudi Arabia, subsequently paid $174 awarded the former head internal investigations Egypt and the Bahamas. million to post bail. trader at Paradigm Capital to sign confidentiality 4/27/2015 – Brazil’s state- Management, who was 5/12/2015 – The UK statements that warned owned oil and gas giant, demoted and marginalized Serious Fraud Office them of possible discipline Petrobras, put a $2 billion by the broker-dealer (SFO) charged Jean- or even termination if price tag on corruption- after reporting conflicts Daniel Lainé, a French they discussed the matters related expenses in its of interest to the SEC, national and former with anyone outside KBR. 2014 earnings report. more than $600,000 in the senior vice president of 4/17/2015 – Shi Tao, the The company booked a agency’s first enforcement ethics and compliance at former executive deputy $7 billion loss for 2014, action based on retaliation Alstom International, for general of FAW-Volkswagen primarily due to a $14 against a whistleblower. Last bribing foreign officials in Sales Co. Ltd., a subsidiary billion impairment charge year, Paradigm Capital and connection with a contract of Volkswagen AG’s China and a $2 billion write-down its owner, Candace King to supply trains to the joint venture, was sentenced for “improperly capitalized Weir, paid $2.2 million to Budapest Metro. Lainé is to life in prison for accepting additional spending” settle the retaliation charges. the sixth individual the bribes totaling $5.3 million tied to the ongoing SFO has charged in its in connection with building corruption investigation. investigation of Alstom. new car dealerships. CONTINUED ON PAGE 3 1885.12 FCPA-Related Cases* 116 Corporate FCPA-Related 1569.71 95 Penalties* (in U.S. millions) DOJ SEC 803.0 49 731.1 644.6 502.7 28 26 25 22 21 19 20 20 19 16 260.3 14 15 11 12 11 155.1 5 61.25 3 2 2007 2008 2009 2010 2011 2012 2013 2014 2015 Pending 2007 2008 2009 2010 2011 2012 2013 2014 2015 Pending Investigations** Settlement** * New criminal or civil cases (settled or contested) instituted by year * Includes disgorgement; does not include non-U.S. fines ** Based upon public disclosures of investigations ** Includes publicly disclosed reserves for future FCPA settlements ANTI-CORRUPTION Quarterly 2Q/2015 • 2 ANTI-CORRUPTION Quarterly IN THE INTERIM CONTINUED FROM PAGE 2 5/15/2015 – The retaining concession rights into potential violations system. Former vice Texas Supreme Court and its relationship with of the FCPA and Brazilian president of IAP, James issued an opinion in charitable organizations. anti-corruption laws. Rama, also pleaded guilty Shell Oil Co. v. Writt, In its declination letter, the Because Eletrobras is 52 to one count of conspiracy holding that an internal DOJ noted the value of the percent owned by the to violate the FCPA. investigation report Shell company’s cooperation. Brazilian government, its 6/26/2015 – South African provided to the DOJ about employees likely would be 5/27/2015 – The DOJ mining company Gold potential FCPA violations is considered foreign officials issued a 47-count Fields Ltd. announced that “absolutely privileged” and for purposes of the FCPA. indictment charging 14 the SEC had closed its FCPA cannot be used to form the defendants, including 6/16/2015 – Joseph investigation and would not basis of a defamation claim. high-ranking officials of Sigelman, the former recommend enforcement The Texas Supreme Court FIFA, with racketeering and co-CEO of PetroTiger, action be taken against the said the fact that Shell had bribery offenses as part of a pleaded guilty to conspiracy company. In 2013, the SEC been the target of a DOJ “24-year scheme to enrich to violate the FCPA and was launched its investigation FCPA investigation satisfied themselves through the sentenced to probation into alleged improprieties the standard of absolute corruption of international with no jail time. This associated with the privilege applicable to soccer.” Police in followed the DOJ’s sudden granting of a mining defamation suits. Switzerland, at the request decision to drop all other license to Gold Fields and 5/20/2015 – BHP Billiton, of the U.S., arrested at least charges against Sigelman, a nine percent stake in Australia-based mining six officials the same day, as apparently driven in large the operation granted by company, paid $25 million FIFA was holding its annual part by an admission by Gold Fields to the ruling to settle SEC charges meeting near Zurich. the Government’s star African National Congress that it violated the FCPA witness that he made party chairwoman, 6/11/2015 – Net 1 UEPS when it sponsored foreign false statements to the Baleka Mbete. Technologies, a South government officials as jury during his testimony. African-based payment guests at the 2008 Summer Following Sigelman’s plea, processing company, Olympics in Beijing.