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German Software Company Self-Discloses Approximately $6.8 Million in Payments to Gupta Family-Related South African Entities
On October 26, a German multinational software corporation, announced that it has voluntarily disclosed commission payments of approximately $6.8 million to a wealthy South African family's related entities to the U.S. Department of Justice and the Securities and Exchange Commission. The voluntary disclosure in July has led to an ongoing DOJ and SEC investigation into the company's conduct.
The company acknowledged that between December 2014 and June 2017, contracts with two South African state-owned companies were closed with the assistance of family-related entities. The company’s internal investigation has also led to the initiation of disciplinary proceedings against three employees in South Africa. The family, which is connected to South African President Jacob Zuma, has previously denied wrongdoing associated with receiving such kickbacks. While acknowledging cooperation with the DOJ and the SEC, the company stated that it has had no interaction with South African authorities and has not decided whether the company will approach South African authorities in the future. The U.S. investigation is ongoing and the company has acknowledged that it has begun the process of sharing documents with authorities.
Deputy Attorney General Rod Rosenstein Issues Remarks on Individual Accountability for Corporate Wrongdoing
Deputy Attorney General Rod Rosenstein recently issued remarks highlighting the importance of the DOJ’s consistency in enforcing policies “hold[ing] individuals accountable for corporate wrongdoing.” In particular, Deputy AG Rosenstein stated that the agency should focus on improving the recent track record of bringing criminal proceedings against company employees and commented that “consistency promotes fairness and enhances respect for the rule of law.” His remarks also touched on the Yates Memo and the FCPA Pilot Program, noting the appropriateness of focusing on individual officer or director liability.
The comments are yet another in the steady drumbeat of calls, both internal and external to the DOJ, for DOJ enforcement strategy to hold individual corporate employees accountable for FCPA violations, although how much that strategy is being implemented remains to be seen. A recent review of DOJ corporate FCPA enforcement actions notes that the last 20 such actions have lacked related criminal charges against company employees, and going back to 2008, approximately 80% of DOJ corporate FCPA enforcement actions have lacked related criminal charges against company employees. As Deputy AG Rosenstein’s comments concluded: “When we are serious about wanting people to follow rules, it does no good merely to post them. We need to make clear our intent to enforce the rules, with sufficient vigor that people fear the consequences of violating them.”
President Trump Signs Law to Prevent Elder Abuse and Exploitation
On October 18, President Trump signed the Elder Abuse Prevention and Prosecution Act, which establishes new requirements aimed at improving the DOJ’s response to elder abuse crimes. Among other things, S 178 expands data collection and information sharing provisions to prevent financial crimes committed against seniors. The law also broadens the federal criminal code to include “email marketing” fraud, such as marketing measures designed to induce the commitment to a loan. Other notable provisions include enhanced penalties for fraud and increased training for federal investigators and prosecutors. Further, the law requires the FTC’s Bureau of Consumer Protection and the DOJ to appoint elder justice coordinators to oversee enforcement, consumer education efforts, and policy activities related to elder justice issues.
HUD Secretary Carson Testifies at House Financial Services Committee Hearing, Discusses Use of FCA Against FHA Lenders
On October 12, Secretary of HUD, Ben Carson, testified at a hearing before the House Financial Services Committee. The hearing entitled “The Future of Housing in America: Oversight of the Department of Housing and Urban Development,” provided an update on HUD’s vision for federal housing policy and touched upon topics such as the conservatorship of Fannie Mae and Freddie Mac, the agency’s role in hurricane disaster relief, and regulatory reform efforts. In his written testimony, Carson reaffirmed his personal interest, and that of the President Trump’s Administration, in working with the Committee on housing finance reform, specifically referencing the FHA mortgage insurance program and Ginnie Mae mortgage-backed security guaranty as “vital components” of the housing finance system. Towards the end of the three-hour-long hearing, Carson was asked by Representative Dave Trott (R-MI) about the federal government’s “unprecedented” use of the False Claims Act (FCA) as a means to “impose outrageous penalties against lenders for immaterial defects” in HFA loan originations, which, according to Rep. Trott, is turning lenders away from FHA lending and is resulting in increased costs to borrowers. Carson stated that his staff is already engaged in discussions with the DOJ staff and is “committed to getting that resolved, because it’s ridiculous, quite frankly.” Carson added, “I’m not exactly sure why there had been such an escalation previously, but the long-term effects of that escalation is obviously providing fewer appropriate choices for consumers, and that’s exactly the opposite of what we should be doing.”
Florida Energy Company Owner Pleads Guilty to Conspiracy to Violate the FCPA in Venezuelan Bribery Scheme
On October 11, the DOJ announced that the co-owner of several Florida-based energy companies pleaded guilty to FCPA charges that he conspired to bribe foreign officials in exchange for obtaining contracts from a Venezuela’s state-owned energy company. In his plea, the defendant admitted to conspiring with two other individuals from 2008 through 2014 to bribe purchasing analysts employed by the energy company through cash payments and other entertainment in order to win contracts for their companies. In total, ten individuals have now pleaded guilty in connection with the scheme.
This investigation has been a collaboration between the DOJ, ICE-HSI, and IRS-Criminal Investigation Division. Previous FCPA Scorecard coverage of the investigation can be found here.
DOJ Civil Rights Division Issues Annual Report to Congress
In September, the DOJ Civil Rights Division issued its Annual Report to Congress regarding its 2016 activities related to the Equal Credit Opportunity Act (ECOA), the Fair Housing Act (FHA), and the Servicemembers Civil Relief Act (SCRA). Highlights include:
- Fair lending: The DOJ opened 18 fair lending investigations; filed seven lawsuits and settled six of them; and obtained almost $37 million in relief. At the end of 2016, the DOJ had 33 open fair lending investigations.
- Servicemembers Civil Relief Act: In November 2016, the DOJ announced a new pilot program funding additional attorneys and resources to support enforcement efforts related to the SCRA. In addition, the DOJ entered into two SCRA settlements, initiated a new lawsuit (subsequently settled in 2017), and continued to support distribution of compensation under the National Mortgage Settlement.
- ECOA/FHA Referrals: The DOJ received 22 ECOA and FHA referrals in 2016; opened eight investigations from these referrals; and noted that all but one of the lawsuits filed by the Civil Rights Division in 2016 were based in part on referrals.
South Korean Earthquake Research Official Sentenced for Laundering Bribes
On October 2, the former director of the earthquake research center of South Korea’s Institute of Geoscience and Mineral Resources was reportedly sentenced in U.S. federal court to 14 months in prison for laundering bribes he had received in South Korea from seismology companies. Prosecutors argued to the federal jury, which convicted him in July, that he had demanded and received more than $1 million in bribes from two seismological companies in exchange for providing them with insider information and directed some of the funds to be transferred to his personal bank account in California.
The former director has not been charged in South Korea, and his conviction and sentencing in the United States illustrate the US DOJ’s continued focus on targeting foreign officials who receive bribes and then travel to the US or use its financial system.
Additional Charges for Retired U.S. Army Colonel
On October 4, the Department of Justice expanded the scope of its indictment against a retired U.S. Army colonel. On August 29, he was charged with conspiracy to violate the Foreign Corrupt Practices Act after he allegedly solicited bribes from undercover agents who posed as potential investors for infrastructure projects in Haiti. The expanded charges include conspiracy to launder money and violate the Federal Travel Act. Prior FCPA Scorecard coverage of the initial indictment and the related FCPA sting operation can be found here.
HUD IG Blames Ginnie Mae for Inadequate Supervision; HUD IG Concludes HUD Did Not Follow Requirements When Forgiving Debts
On September 21, the HUD Inspector General (IG) released an audit report of Ginnie Mae’s oversight of nonbanks in the mortgage servicing industry. The report found that Ginnie Mae did not adequately respond to the growth in its nonbank issuer base; a base, the report notes, that tends to have more complex financial and operating structures than banking institutions. The IG found, among other things, that Ginnie Mae may not be prepared to identify problems with nonbank issuers prior to default, requiring additional funds from the U.S. Treasury to pay back investors in the event of a large default.
On the same day, the IG also announced a report which found that HUD did not always follow applicable requirements when forgiving debts and terminating debt collections. The report determined that HUD’s review process for evaluating debt forgiveness or collection termination was not thorough enough to ensure that statutory, regulatory, and policy requirements associated with this process were met—such as ensuring DOJ approval was obtained when required.
DOJ Obtains Auto Repossession Settlement for Servicemembers
On September 27, the DOJ announced a settlement with a California-based indirect auto financing company and its subsidiary responsible for extending auto title loans (defendants) resolving allegations that the defendants violated the Servicemembers Civil Relief Act (SCRA) by illegally repossessing at least 70 SCRA-protected servicemembers’ vehicles. The DOJ filed its complaint against the defendants in the U.S. District Court for the Central District of California the same day the settlement agreement was reached. This is the second DOJ settlement reached this month over alleged SCRA violations concerning auto repossessions. (See previous InfoBytes summary here.) According to the complaint, the CFPB’s Office of Servicemember Affairs alerted the DOJ in 2016 to the alleged unlawful vehicle repossessions. The DOJ’s investigation concluded that the defendants repossessed the vehicles between 2011 and 2016, without confirming whether the servicemembers were SCRA-protected or obtaining court orders. The defendants’ practice of violating the SCRA, the DOJ contends, was “intentional, willful, and taken in disregard for the rights of servicemembers.”
Under the terms of the settlement agreement, the defendants must comply with the following: (i) obtain a court order or “valid SCRA waiver” in compliance with the outlined terms of the agreement before repossessing servicemember vehicles; (ii) develop a set of SCRA policies and procedures that outline repossession compliance measures and another set of policies and procedures to provide SCRA relief; (iii) appoint SCRA-specialized employees; and (iv) provide SCRA compliance training. The defendants must also compensate affected servicemembers $700,000, in addition to “lost equity,” accrued interest, credit repair relief, and an auto loan interest rate cap for eligible servicemembers. Further, the defendants must pay a civil penalty of $60,788 to the Treasury, and provide a list of repossessions between October 2016 and the effective date of the settlement to be reviewed by the DOJ for additional SCRA-violations.