17 July 2009

FCPA: Modern Day "Smoking Gun"...

Corporate malfeasance is on the mind of most global executives today. Their enterprise is consistently fighting the economic challenges and at the same time defending it's reputation as new "Smoking Guns" are revealed. Perhaps these modern day discoveries of wrong doing should be renamed "Smoking Digital Evidence" because this is exactly what it is. Information uncovered through normal monitoring practices or as the result of a specific investigation produces "Red Flag" alerts based upon acceptable use policy or corporate rule sets.

These "Red Flags" uncovered in the context of programs devoted to processing digital evidence is now a standard Modus Operandi for corporate governance, legal and operations risk management. These new tactical business units are being developed in a rapid response to new regulatory and compliance mandates yet the greater pressure is coming from the wake-up calls senior executives have been receiving lately.

The Justice Department's probe of the credit default swaps market is reportedly focusing on Markit Group Holdings Ltd., the London-based supplier of prices in OTC derivatives, and its relationship to a group of major banks that own a stake in the company. The DOJ is scrutinizing the ownership of Markit by a group of banks that control a large amount of pricing in the $28 trillion credit derivatives market.

The banks have received a notice of investigation from the DOJ asking them for details on their trading activity, including how much they have at risk in the market and their monthly value of their credit default swaps, according to Bloomberg News. Banks that own the largest stakes in Markit, include: J.P. Morgan, Bank of America (through its acquisition of Merrill Lynch), Deutsche Bank, Royal Bank of Scotland which acquired ABN Amro, as well as Credit Suisse, Goldman Sachs, Morgan Stanley and UBS, according to Bloomberg News.

"The DOJ is looking to find any wrongdoing in that marketplace," commented Paul Zubulake, senior analyst at Aite Group in an interview with Wall Street & Technology. "Obviously that is going to open up a large can of worms," he said. "It will be costly for the dealers that have to battle the DOJ given the discovery issues, about all the information, emails and instant messages they will need to turn over."

Digital Forensics, Records Management and eDiscovery units at some of the largest financial institutions are working overtime. Finding any "Smoking Digital Evidence" will be the standard operating procedure on most international transactions whether it be in the financial services industry or even telecommunications:

Good news for compliance officers: You now have solid evidence that the benefit of implementing an effective compliance program far outweighs the cost, in the form of the massive Foreign Corrupt Practices Act settlements swallowed by Siemens AG and three of its foreign subsidiaries.

Siemens, a German conglomerate that is one of the largest engineering firms in the world, agreed in December to pay more than $1.6 billion to U.S. and German regulators for a massive bribery scheme that felled the highest executives at the company. Penalties paid to the Justice Department and Securities and Exchange Commission alone topped $800 million, by far the largest sanction ever imposed in an FCPA case.

In the following excerpt, Linda Chatman Thomsen speaks on the massive Siemens investigation: "Furthermore, the $1.6 billion total that Siemens will pay in these settlements is the largest amount that any company has ever paid to resolve corruption-related charges.

And that is fitting because the alleged conduct by Siemens was egregious and brazen. It was systematic, it involved thousands of payments, and it occurred over an extensive six-year period. Siemens created elaborate payment schemes to conceal these corrupt payments to foreign officials. The company’s inadequate internal controls allowed the conduct to flourish.

The details tell a very unsavory story: employees obtained large amounts of cash for Siemens’ cash desks; employees sometimes carried that cash in suitcases across international borders to pay bribes; payment authorizations were recorded on post-it notes that were later removed to avoid leaving any permanent record; there were slush funds and a cadre of consultants and intermediaries to facilitate paying the bribes.

Investigating this intricate scheme and righting Siemens’ wrongs has taken a remarkable and unprecedented level of coordination among many law enforcement agencies around the world."

The internal threat of employees, partners and so called in-country agents who help facilitate business deals is one square in the risk management matrix. The business transactions themselves are becoming part of the Venn Diagram that includes:

  • Business & Global Commerce
  • Personnel Security & Integrity
  • Rule of Law & Litigation
As global institutions continue their expansion across the continents where capital follows security and the rule of law, so too will the attacks on the corporate enterprise.

No comments:

Post a Comment