Longtime readers know I have frequently argued that claims related to the enforcement of the Foreign Corrupt Practices Act are a growing source of liability exposure for companies and their senior officials, a stand that has made me the subject of occasional derisive comments. One reader recently suggested to me that I am "obsessive" about the topic. But after yesterday’s massive indictment of 22 individuals as a result of an FBI sting — the DoJ’s largest FCPA-related investigative action ever — I think my occasional critics will have to agree that enforcement activities really do represent a significant corporate exposure that must be taken very seriously.
As reflected in the Department of Justice’s January 19, 2010 press release (here), the 22 individuals were indicted for engaging in schemes to bribe foreign government officials. The indictments are the result of an FBI undercover operation that focused on allegations of foreign bribery in the military and law enforcement products industries.
The 16 separate indictments can be found here. Only individuals are named in the indictments; no companies have been named. The individuals worked for companies in the U.S, the U.K and Israel. All but one of the individuals was arrested while attending an industry convention in Las Vegas.
According to the DoJ’s press release, the indictments represent "the largest single investigation and prosecution against individuals in the DoJ’s enforcement of the Foreign Corrupt Practices Act." The press release also quotes the Assistant Attorney General as saying that the "ongoing investigation" is "the first large-scale use of undercover law enforcement techniques to uncover FCPA violations."
If you have any doubts about the government’s willingness to commit resources to enforce the FCPA, you should know that, as part of this investigation, 150 FBI agents executed 14 search warrants in at least twelve locations around the country.
The investigation also reflects a frequently common aspect of these kinds of enforcement actions – that is, crossborder cooperation between investigative agencies. Specifically, in this case, the City of London’s police executed seven search warrants in connection with their own investigation of the foreign bribery conduct that formed the basis of the indictments.
The DoJ’s press release describers how the FBI’s sting operation worked:
the defendants allegedly agreed to pay a 20 percent "commission" to a sales agent who the defendants believed represented the minister of defense for a country in Africa in order to win a portion of a $15 million deal to outfit the country’s presidential guard. In reality, the "sales agent" was an undercover FBI agent. The defendants were told that half of that "commission" would be paid directly to the minister of defense. The defendants allegedly agreed to create two price quotations in connection with the deals, with one quote representing the true cost of the goods and the second quote representing the true cost, plus the 20 percent "commission." The defendants also allegedly agreed to engage in a small "test" deal to show the minister of defense that he would personally receive the 10 percent bribe.
The indictments were returned on December 11, 2009 by a grand jury sitting the District of Columbia and were unsealed yesterday.
The indictments allege that the individuals conspired to violate the FCPA, conspired to engage in money laundering, and engaged in substantive violations of the FCPA.
The maximum prison sentence for the conspiracy count and for each FCPA count is five years. The maximum sentence for the money laundering conspiracy charge is 20 years in prison. The indictments also seek criminal forfeiture of the defendants’ ill gotten gains.
According to statements quoted in a January 19, 2010 Bloomberg article (here), the investigation has been underway for 2 ½ years, and "is continuing." The official quoted in the article declined to say whether there would be further indictments as a result of this investigation. However, the official noted that there are over 140 open investigations into violations of the bribery laws and he added that ""I can assure you there will be more charges as a result of some of those investigations."
The involvement of criminal charges against so many individual defendants raises many questions, including whether or to what extent D&O insurance might respond in these circumstances. The issue will of course depend to a large extent on the precise wording of the policies involved. The criminal forfeitures would not in any event be covered under any policy. However many policies include within their definition of claim the filing of criminal charges in an indictment, which at least for policies with that language might hold open the possibility that the policies might provide at least defense cost coverage.
Whether any specific policy would provide coverage for criminal defense expenses will depend in large part on the wordings of other policy provisions, including in particular any potentially relevant policy exclusions. Though they do not appear in many contemporary policies, some older policy forms contain certain exclusions that (if not removed by endorsement) could potentially operate to preclude coverage for FCPA-related criminal defense expenses.
But as I have frequently pointed out, the greatest relevance of the D&O policy in connection with bribery related legal proceedings may be in connection with any follow-on civil action that may arise. The FCPA itself does not contain a private right of action, but investors and others sometimes raise claims that company’s senior officials did not take appropriate steps to protect against the improper conduct, or that the company misrepresented its financial condition.
The sheer magnitude of this most recent FCPA criminal enforcement action, taken together with the existence of 140 open FCPA-related investigations and the likelihood of further enforcement actions ahead, underscores the seriousness of FCPA exposures for senior company officials. And as highlighted by my brief discussion above of the way the D&O policy may respond in connection with FCPA claims, it is critically (and increasingly) important that these issues are taken into account at the time the D&O policy is formed.
Year-End Securities Litigation Review Webinar: On January 22, 2010 at 11 am EST, I will be participating in a webinar sponsored by Advisen entitled "Review of Securities Litigation 2009 and Expert Views for the Year Ahead." Joining me for the hour-long webinar will be Jeffrey Lattman of Beecher Carlson and Mark Lamendola of Travelers, as well as David Bradford and Jim Blinn of Advisen. You can register for the webinar here.