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2007 Year-End FCPA Update
2007 – A "Landmark Year" in FCPA Enforcement
"2007 is by any measure a landmark year in the fight against foreign bribery." When Mark F. Mendelsohn, Deputy Chief of the Fraud Section in the Department of Justice's Criminal Division ("DOJ") and the government's top criminal Foreign Corrupt Practices Act ("FCPA") enforcer, opened the 2007 ACI FCPA Conference with this bold statement, not a single eyebrow rose across the ballroom filled with members of the ever-growing FCPA Bar. Nor was anyone surprised to hear Fredric D. Firestone, an Associate Director in the Securities and Exchange Commission's Division of Enforcement ("SEC"), which shares enforcement responsibility under the FCPA with the DOJ, utter moments later "ditto from the SEC." For Messrs. Mendelsohn and Firestone spoke only what everyone in the room already knew: as the statute celebrated its thirtieth birthday, FCPA enforcement, already trending steeply upward in recent years, exploded in 2007.
This client update provides an overview of the FCPA and other foreign bribery enforcement activities in 2007, a discussion of the trends we see from that activity, and practical guidance to help companies avoid or limit liability under these laws. A collection of Gibson, Dunn & Crutcher LLP ("Gibson Dunn") publications on the FCPA, including prior enforcement updates and more in-depth discussions of the statute's complicated framework, may be found on Gibson Dunn's FCPA website.
FCPA Overview
The FCPA's anti-bribery provisions make it illegal to provide money or anything of value to officials of foreign governments or foreign political parties with the intent to obtain or retain business. The anti-bribery provisions apply to "issuers," "domestic concerns," and "any person" that violates the FCPA while in the territory of the United States. The term "issuer" covers any business entity that is registered under 15 U.S.C. § 78l or is required to file reports under 15 U.S.C. § 78o(d). In this context, foreign issuers whose American Depository Receipts ("ADRs") are traded on U.S. exchanges are "issuers" for purposes of this statute. The term "domestic concern" is even broader and includes any U.S. citizen, national, or resident, as well as any business entity that is organized under the laws of a U.S. state or that has a principal place of business in the United States.
In addition to the anti-bribery provisions, the FCPA's books-and-records provision requires issuers to make and keep accurate books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the issuer's transactions and disposition of assets. Finally, the FCPA's internal controls provision requires that issuers devise and maintain reasonable internal accounting controls aimed at preventing and detecting FCPA violations.
The explosion of FCPA enforcement activity in 2007 is best captured in the following chart and graph, which each track the number of FCPA enforcement actions filed by the DOJ and SEC during the past five years:
FCPA Prosecutions 2003 — 2007
The thirty-eight FCPA enforcement actions brought by the DOJ and SEC in 2007 substantially more than doubled the fifteen governmental actions in 2006, which was until this year itself the busiest year ever in FCPA enforcement. And it is clear that the recent surge will not soon abate. Mr. Mendelsohn recently stated that the enforcement activity throughout the past few months represents "just the tip of the iceberg," noting that the DOJ has "many more matters under investigation." Mr. Firestone concurred, indicating that the SEC is engaging in "a full-court press on FCPA investigations." From our representation of corporations and individuals, our network of relationships, and our constant review of public disclosures, Gibson Dunn has identified approximately 100 companies that are the subject of open FCPA investigations.
2007 Enforcement Trends
Record-Setting Resolutions
Not only did the DOJ and SEC bring record numbers of FCPA enforcement actions in 2007, they brought cases with record-setting penalties. In the largest criminal FCPA resolution to date, on February 6, 2007, three wholly owned subsidiaries of Vetco International pleaded guilty and a fourth entered into a deferred prosecution agreement. These four subsidiaries (collectively "Vetco Subsidiaries") agreed to pay a total of $26 million in criminal fines. According to the plea agreements, the Vetco Subsidiaries engaged in a scheme to authorize corrupt payments to officials in the Nigerian Customs Service. From 2001 through 2003, the Vetco Subsidiaries made at least 378 corrupt payments totaling approximately $2.1 million to customs officials in Nigeria through an "international freight forwarding and customs clearance company." The purpose of the payments was allegedly to gain preferential treatment in the customs clearance process and to secure an improper advantage in the importation of goods and equipment into Nigeria. Notably, the charges did not allege that the payments were to "obtain or retain business." The deferred prosecution agreement also requires that Vetco International hire an independent compliance monitor to oversee the formation and maintenance of a robust FCPA compliance program.
In the largest combined FCPA settlement to date, on April 26, 2007, the DOJ and SEC announced settlements with Texas-based oilfield services provider Baker Hughes, Inc. and its wholly owned subsidiary, Baker Hughes Services, International ("BHSI"), worth a combined $44 million. According to the settlement documents, between 2001 and 2003, Baker Hughes and BHSI paid approximately $5.2 million to two agents operating in Kazakhstan with the knowledge that some or all of that money would be funneled to officials of Kazakhstan's state-owned oil company. Additionally, between 1998 and 2004, Baker Hughes and BHSI allegedly paid or authorized more than $15 million in commission payments to agents operating in Angola, Indonesia, Kazakhstan, Nigeria, Russia, and Uzbekistan "under circumstances in which the compan[ies] failed to adequately assure [themselves] that such payments were not being passed on, in part, to [government] officials."
To resolve the SEC's complaint, which alleged violations of the FCPA's anti-bribery, books-and-records, and internal controls provisions, Baker Hughes agreed to pay approximately $23 million in disgorgement and prejudgment interest and to pay a $10 million civil penalty for purportedly violating a 2001 SEC cease-and-desist order prohibiting future violations of the FCPA. This $10 million penalty, the first of its kind in FCPA enforcement, underscores that an injunction should never be entered into nonchalantly as it may form the basis for an increased penalty should the party become involved in a subsequent FCPA matter.
In the DOJ action, BHSI pleaded guilty to violating and conspiring to violate the FCPA's anti-bribery provisions and aiding and abetting the falsification of Baker Hughes's books and records, and it agreed to pay an $11 million criminal fine. Baker Hughes also entered into a deferred prosecution agreement alleging the same three violations to which BHSI pleaded guilty. Both the DOJ and SEC resolutions require the company to retain a compliance monitor for three years.
Commenting on the Baker Hughes settlements, Assistant Attorney General Alice S. Fisher, head of the DOJ's Criminal Division, noted that "[t]he record penalties leveled in this case leave no doubt that foreign bribery is bad for business." And from the SEC side, Director of Enforcement Linda Thompson noted that the $10 million civil penalty for violating a prior cease-a-desist order "demonstrates that companies must adhere to Commission Orders and that recidivists will be punished."
Leveraging Isolated Cases into Worldwide & Industry-Wide Investigations
Two other trends that emerged in FCPA enforcement in 2007 were investigations involving worldwide activities of single companies and industry-wide investigations of multiple companies. Traditionally, most FCPA investigations involved corrupt payments to government officials in a single country by a single company (and occasionally one or more of its employees). But today it is not uncommon for multinational companies that identify FCPA concerns in one locale to expand their internal inquiry to examine their operations around the globe. And where they do not, they can expect to receive the "So where else have you looked?" inquiry should they ever find themselves across the table from the DOJ or SEC. Prominent examples from 2007 of single-company FCPA resolutions spanning multiple countries include the following:
York International Corp. — charged with making more than 870 improper payments, totaling more than $8.7 million, to obtain or retain more than 775 contracts in Bahrain, China, Egypt, India, Iraq, Nigeria, Turkey, the United Arab Emirates, and unspecified European countries;
Textron, Inc. — charged with making nearly $700,000 in improper payments to obtain or retain business in Bangladesh, Egypt, India, Indonesia, Iraq, and the United Arab Emirates; and
Paradigm B.V. — charged with providing foreign government officials with hundreds of thousands of dollars in cash and improper travel and entertainment benefits to obtain or retain business in China, Indonesia, Kazakhstan, Mexico, and Nigeria.
In 2007, the DOJ and SEC also took clear aim at leveraging single-company inquiries into industry-wide probes. The most recent example involves orthopedic implant manufacturers Biomet, Inc.; Medtronic, Inc.; Smith & Nephew plc; Stryker Corp.; and Zimmer Holding, Inc.; all of which publicly disclosed receiving letters from the DOJ or SEC requesting information concerning payments to government-employed physicians in various foreign countries, including Germany, Greece, and Poland. The letters followed on the heels of each of the companies, except Medtronic, entering into settlements with the New Jersey U.S. Attorney's Office on September 27, 2007 alleging violations of the domestic anti-kickback statute relating to their sales of orthopedic implants to physicians in the United States. And in February 2007, Johnson & Johnson, the parent company of DePuy Orthopedics, which was also a party to the domestic physician anti-kickback settlement, publicly reported having voluntarily disclosed to the DOJ and SEC potential improper payments to government-employed physicians in foreign countries.
In another prominent example of an industry-wide probe from 2007, on July 2, the DOJ sent letters to eleven oil and oil services companies requesting information about their dealings with Panalpina Welttransport Holding AG, a Swiss logistics and freight forwarding company. Panalpina is widely believed to be the "major international forwarder and customs clearance agent" implicated in the February Vetco International FCPA settlement that allegedly made improper payments to officials of the Nigerian Customs Service. The DOJ is investigating Panalpina's activities in Nigeria, Kazakhstan, and the Middle East. Most of the eleven companies that received the DOJ letter, as well as several other oil services companies, have publicly disclosed internal investigations concerning potential improper payments made through Panalpina and other agents to government officials in various countries, including Nigeria. Panalpina has announced that it is and will continue to cooperate with the DOJ's investigation and that it has suspended its services in Nigeria. This investigation demonstrates the risks of doing business in countries where corruption is rampant, and it also emphasizes the need for companies to conduct adequate due diligence before hiring agents or consultants and to monitor the activities of those third parties post-retention to ensure FCPA compliance.
The mother of all 2007 industry-wide investigations has to be that arising from the Oil-for-Food Program ("OFFP"). Likely the largest international corruption investigation ever — involving a U.N.-commissioned international investigative body, four congressional committees, the DOJ, two U.S. Attorney's Offices, the SEC, the Manhattan District Attorney's Office, the Department of Treasury's Office of Foreign Assets Control ("OFAC"), and at least six foreign governments — OFFP spawned six SEC and four DOJ FCPA enforcement actions in 2007. This all began when the U.N. Independent Inquiry Committee ("IIC"), commonly known as the Volcker Committee after its Chairman (and former Chairman of the Federal Reserve) Paul A. Volcker, published its final report detailing the results of its sixteen-month investigation into alleged corruption surrounding the OFFP. When the smoke cleared, the IIC had named 2,253 companies worldwide as having made more than $1.8 billion in "kickbacks" to the Iraqi government. More than two dozen companies have since publicly disclosed that they are under investigation by the DOJ and/or SEC, suggesting there may be more OFFP prosecutions to come in 2008.
First to settle FCPA-related OFFP charges was El Paso Corp., a Houston-based energy company. On February 7, 2007, El Paso agreed to settle with the SEC on charges that it violated the FCPA's books-and-records and internal controls provisions, and at the same time entered into a non-prosecution agreement with the U.S. Attorney's Office for the Southern District of New York ("SDNY") on non-FCPA (wire fraud and OFAC) charges. According to the SEC's complaint, El Paso purchased oil from third parties while knowing that the third parties had themselves made approximately $5.5 million in illegal kickback payments in connection with their purchase of the oil from the Iraqi government. El Paso allegedly reimbursed the intermediary purchasers for their kickback payments through higher commission payments and then improperly recorded the whole of the commissions as "cost of goods sold." El Paso agreed to pay a $2.25 million civil penalty to the SEC and agreed to forfeit $5.48 million — the SEC refers to the forfeiture as disgorgement of "profits," while the SDNY refers to the figure as reflecting the value of the kickback payments — to the SDNY for ultimate transfer to the Development Fund for Iraq.
For the first half of 2007, El Paso remained the only company to settle FCPA charges arising from the OFFP. Then, on August 23, the DOJ and SEC announced FCPA books-and-records settlements (the SEC's complaint also alleged internal controls violations) with Textron, Inc. According to the settlement documents, two relatively recently acquired French subsidiaries of Textron — which participated in the "Humanitarian" side of the OFFP, unlike El Paso, which was an "Oil" side participant — used a third-party agent to funnel $580,000 to ministries of the Iraqi government in connection with the sale of industrial pumps and related spare parts under the OFFP. Textron's subsidiaries allegedly funded the payments, which equaled 10% of the contracts' values, by inflating the value of their contracts by 10%, thereby receiving an extra 10% from the U.N.'s escrow account. Textron's subsidiaries then increased the value of their agents' commissions by 10%, reimbursing the agents for making the payments, and improperly recorded the whole of the payments to the agents as "commissions" and "consultation fees." To resolve the allegations concerning the OFFP, as well as other allegedly improper payments made in several countries outside the OFFP, Textron paid a $1.15 million fine to the DOJ as part of a non-prosecution agreement, and paid an $800,000 civil penalty to the SEC along with approximately $2.7 million in disgorgement with prejudgment interest. Both the DOJ and SEC acknowledged Textron's early discovery and self-reporting of the improper payments, as well as the company's remedial actions and significant cooperation in the government's investigation of it and other companies.
Rounding out the ranks of companies to settle OFFP FCPA charges (thus far) are the following:
York International Corp. — On October 1, settled FCPA books-and-records and internal controls charges with the SEC, and books-and-records and wire fraud charges with the DOJ, for its Dubai subsidiary allegedly funneling approximately $670,000 in kickbacks to the Iraqi government through third-party agents, funded by inflated contract price submissions to the United Nations. Also, as described above, York International's subsidiaries in China, India, and the United Kingdom allegedly paid more than $8 million in bribes in Bahrain, China, Egypt, India, Nigeria, Turkey, the United Arab Emirates (SEC alleged FCPA anti-bribery violations in the UAE only), and unspecified European countries. York paid a $2 million civil penalty to the SEC and agreed to disgorge just over $10 million in profits plus prejudgment interest. As part of a deferred prosecution agreement with the DOJ, York paid a $10 million criminal fine and was required to retain an independent compliance consultant.
Ingersoll-Rand Co. Ltd. — On October 31, settled FCPA books-and-records and internal controls charges with the SEC, and books-and-records and wire fraud charges with the DOJ, for its subsidiaries in Belgium, Germany, Ireland, and Italy allegedly paying or promising to pay approximately $1.5 million in kickbacks to the Iraqi government through third-party agents, funded by inflated contract price submissions to the United Nations. Ingersoll-Rand paid a $2.5 million criminal fine to the DOJ in connection with a deferred prosecution agreement and paid a $1.95 million civil penalty to the SEC together with approximately $2.27 million in disgorgement plus prejudgment interest.
Chevron Corp. — On November 15, 2007, entered into a books-and-records and internal controls resolution with the SEC and agreed to pay a $3 million penalty to settle allegations that it purchased oil from third parties while knowing that the third parties had themselves made approximately $20 million in kickbacks in connection with their purchase of the oil from the Iraqi government. Chevron's SEC settlement required $20 million in disgorgement, but the disgorgement was deemed satisfied by the company's payment of the same amount to the SDNY (to be transferred to the Development Fund for Iraq) as part of a non-prosecution agreement on non-FCPA charges. The company also paid a $2 million civil penalty to OFAC and paid $5 million to the Manhattan District Attorney's Office to reimburse it for investigative costs.
Akzo Nobel N.V. — On December 20, settled FCPA books-and-records and internal controls charges with the SEC, and books-and-records charges with the DOJ, for its Dutch subsidiaries allegedly funneling nearly $280,000 in kickbacks to ministries of the Iraqi government through their third-party agents, funded by inflated contract price submissions to the United Nations. Akzo Nobel agreed to pay a $750,000 civil penalty to the SEC and to disgorge approximately $2.23 million in profits plus prejudgment interest. Its non-prosecution agreement with the DOJ does not require the payment of a fine, provided that one of Akzo Nobel's subsidiaries reaches a criminal settlement with Dutch authorities by June 2008 and pays at least a EUR 381,602 ($549,419) fine in connection with that settlement. This is the first time that the DOJ has declined to impose a financial penalty altogether in an FCPA case in light of a foreign disposition, although it did credit a foreign government-imposed fine in the 2006 Statoil ASA FCPA prosecution.
The OFFP investigation has also highlighted another topic of great interest to those involved in FCPA matters: the increasingly inconsistent usage of non-prosecution and deferred prosecution agreements by the DOJ and the many United States Attorneys' Offices. Thus far, Akzo Nobel, Chevron, El Paso, and Textron have received non-prosecution agreements from the DOJ and SDNY, while for essentially the same conduct, York International and Ingersoll-Rand received deferred prosecution agreements, widely believed (and for good reason) to be a more harsh sanction.
DOJ and SEC Target Individual Defendants
This year, of thirty-one FCPA defendants, fifteen were individuals, by far the highest annual total in the statute's thirty-year history. Asked at a recent American Bar Association event whether the prosecution of individuals in 2007 is a trend or an aberration, SEC Assistant Director Cheryl J. Scarboro said that the SEC will "continue to focus on individuals." Mr. Mendelsohn, also a panelist at this event, added that the trend of individual enforcement is "part of a very concerted effort" intended to "deter the conduct." And as if this were not disconcerting enough for individuals with potential FCPA liability, Donald W. Freese, the head of the Federal Bureau of Investigation's new FCPA unit, recently expressed his view that the only way to deter FCPA conduct is to put people in jail.
Perhaps the highest profile FCPA prosecution of an individual in 2007 is that of sitting United States Congressman William J. Jefferson. On June 4, 2007, a grand jury in the Eastern District of Virginia returned a sixteen-count indictment charging Jefferson with violating the FCPA's anti-bribery provisions, solicitation of a bribe by a public official, wire fraud, money laundering, obstruction of justice, and violating the Racketeer Influenced and Corrupt Organizations Act. The FCPA charges stem from Jefferson's alleged promise to make a $500,000 "front-end payment" to a high-ranking Nigerian official, widely believed to be former Vice President Atiku Abubakar, to induce the official to assist Jefferson in obtaining regulatory approvals from the Nigerian state-owned telecommunications company for a joint venture between a Nigerian company and iGate, Inc., a Kentucky-based company for which Jefferson was acting as agent. Jefferson also allegedly offered the Nigerian official a "back-end payment" of 50% of the joint venture's future profits. When the FBI raided Jefferson's Washington, D.C. home, acting on the tip of a confidential informant, they discovered $90,000 cash in Jefferson's freezer, which the indictment alleges was to be used in partial satisfaction of the $500,000 front-end payment. Jefferson has pleaded not guilty to all charges and is presently scheduled to go to trial in February 2008.
Although lacking the media cachet of the Jefferson indictment, another particularly interesting 2007 FCPA individual enforcement action was the SEC's settlement with Monty Fu, the founding Chairman of Syncor International Corp., a California-based provider of radiopharmaceutical products. Otherwise relatively standard FCPA fare, what makes this case truly significant is that the resolution was reached nearly five years after Syncor International and its foreign subsidiary Syncor Taiwan settled FCPA charges with the DOJ and SEC in December 2002. The SEC's complaint charged Fu only with FCPA books-and-records and internal controls violations. According to the complaint, from 1985 through 2002, Syncor Taiwan made more than $1.1 million in improper commission payments to both private and state-employed physicians in Taiwan to influence them to purchase Syncor Taiwan's products. The SEC alleged that Fu, as the Chairman of Syncor International, had the authority to implement a system of internal controls within Syncor Taiwan, yet failed to do so. Additionally, the SEC alleged that he either knew, or was reckless in not knowing, that the improper payments were being falsely recorded on Syncor Taiwan's books and records, which were then incorporated into Syncor International's books and records. Interestingly, given the nature of the charges and the lengthy time period to reach a settlement, it does not appear that Mr. Fu will be criminally prosecuted.
Other corporate officials to be charged in 2007 after their respective employers settled FCPA charges in prior years include Robert W. Philip (SEC) and Si Chan Wooh (DOJ and SEC), formerly the CEO and Executive Vice President, respectively, of Schnitzer Steel Industries, Inc., which together with its Korean subsidiary settled criminal and administrative FCPA charges with the DOJ and SEC in October 2006, and Charles M. Martin (SEC), formerly the Asian Governmental Affairs Director of Monsanto Co., which itself settled civil and administrative FCPA charges with the SEC in January 2005.
International Enforcement and Cooperation
One can't help but suspect that Mark Mendelsohn chose carefully his words featured at the outset of this Update — "2007 is by any measure a landmark year in the fight against foreign bribery." For not only did FCPA enforcement reach unprecedented levels in 2007, but this year also featured never-before-seen vigor among foreign prosecutors in at least investigating, if not yet prosecuting, international graft. Chiming in on this point, Alice Fisher recently described the DOJ's efforts to work "more effectively with foreign authorities around the world to investigate and prosecute FCPA offenses," resulting in "an increase in the number of joint investigations." Representative of this increased multinational cooperation, on November 20 and 21, 2007, Ms. Fisher, Mr. Mendelsohn, and William B. Jacobson, Assistant Chief of the DOJ's Fraud Section and the DOJ's second-most senior FCPA prosecutor, participated in an international conference to celebrate the tenth anniversary of the OECD Anti-Bribery Convention. Together with the DOJ representatives, prosecutors from Brazil, Chile, France, Germany, Hong Kong, Hungary, Italy, South Africa, and Switzerland gave presentations on the status of international bribery enforcement in their own countries. This coordination between U.S. and foreign anti-bribery enforcement agencies may subject multinational companies to dual enforcement actions in the United States and foreign countries, much as we saw in the 2006 prosecutions of Statoil ASA and expect to soon see for Akzo Nobel N.V.
Several recent cases highlight this trend toward more aggressive international enforcement of foreign anti-bribery laws.
On October 5, 2007, German conglomerate Siemens AG announced that it had accepted a German court's order to pay a EUR 201 million ($284 million) fine in connection with alleged bribes paid by Siemens's telecommunications unit to win contracts in a number of countries, including Russia. Siemens also agreed to pay German tax authorities EUR 179 million ($253 million) in back taxes related to improper deductions taken for the unlawful payments. In addition, the German authorities indicted at least one executive from the telecommunications unit in connection with the alleged bribery, and press reports indicate that additional indictments are expected. These significant fines came on the heels of a EUR 38 million ($51 million) fine levied against Siemens's power-generation unit in May 2007, and Siemens has confirmed that it is continuing to investigate suspicious payments made by several other units. Both the DOJ and SEC have open FCPA investigations related to the alleged bribery, which many speculate will lead to even more sizeable penalties than those imposed in Germany, which already dwarf the highest FCPA settlement on record, Baker Hughes, Inc. with $44 million. China, Greece, Hungary, Indonesia, Italy, Japan, Norway, and Switzerland also have reportedly launched investigations into the same conduct.
In one of the most highly publicized and controversial international corruption investigations in recent memory, BAE Systems PLC, a major British defense contractor, is suspected of having paid billions of dollars to members of the Saudi royal family over several decades to secure lucrative contracts to provide fighter jets and other military equipment to Saudi Arabia. The British Serious Fraud Office ("SFO") had reportedly been investigating BAE for several years when then-Prime Minister Tony Blair intervened to halt the inquiry in December 2006, invoking national security concerns when Saudi Arabia threatened to withdraw from cooperative anti-terrorism efforts. But that would not be the end of BAE's troubles, for on June 26, 2007, BAE announced that the DOJ had opened its own investigation into the Saudi payments. While British authorities have reportedly resisted cooperating with the DOJ, the Swiss authorities have agreed to provide relevant financial records to assist the DOJ's investigation. And according to media reports, the DOJ recently flew a BAE employee to the United States for interviews, routing him through Paris so as to avoid attention. Accordingly, the BAE investigation highlights the fact that the level of international cooperation may vary greatly, depending on the particular countries involved. In early December, the SFO announced a new investigation of BAE, focusing on potentially improper payments made to secure contracts with the governments of Romania, South Africa, and Tanzania.
In November 2007, the former chief legal officer for the Samsung Group, the largest conglomerate (chaebol) in South Korea, publicly reported that the company and its affiliates paid billions of dollars to various government officials to ensure that the son of Samsung's current chairman would succeed his father as the head of the chaebol. The whistleblower claimed that the money was kept in slush funds that were concealed through unlawful bookkeeping practices. State prosecutors in South Korea are investigating the allegations, and President Roh Moo-hyun recently approved legislation mandating the launch of a separate, independent, investigation. Several commentators have speculated that the negative press arising from the bribery allegations may trigger changes in Samsung's business practices, but skeptics have noted that the culture of bribery is deeply rooted in South Korea, where the chaebols wield significant political influence.
The Only Way to (Sponsor) Travel
Company-sponsored travel by government officials was clearly an area of focus for the DOJ and SEC in 2007. The FCPA's anti-bribery provisions provide for an affirmative defense permitting companies to pay for the "reasonable and bona fide" expenses of foreign government officials, "such as travel and lodging expenses," incurred in connection with either (1) the "promotion, demonstration, or explanation" of the payer's products or services or (2) "the execution or performance of a contract with a foreign government or agency thereof." But as the DOJ and SEC made clear in 2007, there is a right way and a wrong way to go about sponsoring travel for foreign government officials.
The "right way" is exemplified in two very similar FCPA Opinion Procedure Releases issued by the DOJ in July and September, respectively (the FCPA Opinion Procedure Release process is described in greater detail below). In FCPA Op. Proc. Rel. 2007-01, the DOJ wrote that it would not take enforcement action against a company that wished to cover domestic travel expenses — including transportation, lodging, and meals — expected to be incurred by a six-person delegation of a foreign government in connection their visit to one of the requestor's U.S. sites (the foreign government agreed to pay the officials' international travel expenses). The Opinion highlighted the following facts as relevant to the DOJ's conclusion that the requestor's contemplated conduct would fall within the FCPA's "promotional expenses" affirmative defense:
the foreign officials making the trip were selected by the foreign government, not the requestor;
the foreign officials had no authority to make decisions that would affect the requestor's planned operations in the foreign country;
the requestor would pay all incurred expenses directly to the service providers, not to the officials, and would properly record such payments in its books and records;
the air transportation to be provided by the requestor would be "economy class";
the requestor obtained a written legal opinion "that the requestor's sponsorship of the visit and its payment of the expenses described in the request is not contrary to the law of the foreign country";
the requestor would not "fund, organize, or host any entertainment or leisure activities for the officials, nor [would] it provide the officials with any stipend or spending money";
any souvenirs to be provided to the foreign officials "would reflect the requestor's name and/or logo and would be of nominal value"; and
the requestor would "not pay any expenses for spouses, family, or other guests of the officials."
In FCPA Op. Proc. Rel. 2007-02, the DOJ issued very similar advice to a requestor contemplating the payment of domestic travel and lodging expenses for foreign government officials already in the United States on business unrelated to the requestor. The only significant differences between FCPA Op. Proc. Rels. 2007-01 and 2007-02 are that the requestor in this instance additionally sought:
to reimburse incidental expenses incurred by the visiting foreign officials "up to a modest daily minimum, upon presentation of a written receipt"; and
to provide a "modest four-hour city sightseeing tour" for the officials.
The DOJ again concluded that payment of the foreign officials' travel expenses under these circumstances would fall within the FCPA's "promotional expenses" affirmative defense.
On the "how not to" side of the government official travel sponsoring ledger, on December 21, 2007, the DOJ and SEC announced FCPA books-and-records and internal controls settlements with Lucent Technologies, Inc., a global telecommunications provider that merged with Alcatel SA in November 2006. The settlement documents allege that, between 2000 and 2003, Lucent spent more than $10 million sponsoring 315 trips for approximately 1,000 Chinese government officials. The majority of these trips were ostensibly designed to allow officials before whom Lucent had pending or expected tenders to inspect Lucent's factories or to train Chinese officials with whom Lucent had ongoing contracts on how to use Lucent equipment. In fact, the Chinese government officials spent little to no time visiting Lucent's facilities — indeed, for much of the relevant period Lucent had relocated its production facilities to countries, including China, other than where the travel was provided — and instead spent the majority of these trips visiting popular tourist destinations in Australia, Canada, Europe, and many locations within the United States, including Disney World, the Grand Canyon, Hawaii, Las Vegas, and Niagara Falls. Each trip typically lasted fourteen days and cost Lucent between $25,000 and $55,000. In connection with some of these trips, Lucent additionally provided between $500 and $1,000 per day to the traveling foreign officials as a "per diem," even though Lucent was already funding all of the officials' travel expenses. And Lucent's funding of these trips was so transparently gratuitous to at least one Chinese official, that he even requested (and Lucent agreed) that Lucent pay $21,000 to cover the costs of him obtaining his MBA in lieu of paying for him to attend one of the trips.
Although the conduct described in the settlement documents arguably implicates the FCPA's anti-bribery provisions — the DOJ and SEC have previously charged corporate largesse through gratuitous travel sponsorship as anti-bribery violations — Lucent was only alleged to have improperly recorded the expenses and to have failed to maintain a system of internal controls. For example, Lucent allegedly booked many of the trips to a "Factory Inspection Account," even where the officials did not visit a Lucent factory at any time during the trip. With regard to Lucent's internal controls, the settlement documents allege that Lucent "failed, for years, to properly train its officers and employees to understand and appreciate the nature and status of its customers in China in the context of the FCPA."
Lucent's settlements, through which it will pay a $1.5 million civil penalty to the SEC and a $1 million fine to the DOJ, resolve a longstanding investigation into Lucent's travel practices in China. According to Lucent's public filings, the company nearly went to the mat on this investigation, receiving a "Wells" notice from SEC Staff in September 2006 and submitting a written response to the Commission in late 2006. Another interesting aspect of the settlement is that the DOJ's non-prosecution agreement, which typically resolves all of a company's outstanding FCPA liabilities, expressly provides that it does not cover the DOJ's ongoing investigation of pre-merger Alcatel SA activities in "Costa Rica and elsewhere." Alcatel's former Country Manager for Costa Rica, Edgar Acosta, was indicted on FCPA charges in March 2007, and its former Director of Latin American Sales, Christian Sapsizian, who was originally indicted on FCPA charges in 2006, pleaded guilty in June 2007.
Transactional Due Diligence
With the recent upsurge in global M&A activity coinciding with that of FCPA enforcement, the FCPA has become a central issue in transactional due diligence. So much so that Alice Fisher made the topic a centerpiece of a recent speech she gave on the FCPA, advising that there are five questions that every acquirer will want to know, at a minimum, about a prospective target before it closes on an acquisition:
"The extent to which the company's customers are government entities, including state-owned companies;
"Whether the company is involved in any joint ventures with government entities;
"What government approvals and licenses the company needs to operate abroad, how it obtained them, and when they require renewal;
"The company's requirements relating to Customs in foreign countries and how it fulfills those requirements; and
"The company's relationships with third party agents or consultants who interact with foreign officials on the company's behalf, including how those agents were chosen and vetted by the company."
Nearly half of the corporate FCPA enforcement actions of 2007 implicated some aspect of M&A activity. For example, Delta & Pine Land Co. and York International Corp. each settled FCPA enforcement actions in 2007 shortly after being acquired by, respectively, Monsanto Co. and Johnson Controls, Inc. Interestingly, Delta & Pine's pre-merger SEC filings suggest that it had identified the FCPA issue forming the basis for the SEC's administrative cease-and-desist order — the provision of approximately $43,000 in cash, travel expenditures, and office furniture, among other items, to Turkish Ministry of Agriculture officials to influence them in providing Delta & Pine with regulatory approvals — years prior the Monsanto acquisition. But Delta & Pine determined that the payments did not violate the FCPA, perhaps because it believed that they fit within the "facilitating payments" exception to the FCPA's anti-bribery provisions, and accordingly did not report the conduct to the DOJ or SEC. But when Monsanto discovered these payments in the course of pre-acquisition due diligence, it required Delta & Pine to report the conduct to the DOJ and SEC, ultimately leading to a post-closing FCPA settlement.
Commenting on the York International settlement, Mark Mendelsohn recently noted that counsel for Johnson Controls actively participated in settlement negotiations with the DOJ and SEC, and that while there was "recognition around the table" that the matter would be settled, the "big issue was to ensure York was the settling party; not Johnson Controls." Mr. Firestone added that the SEC is likewise sensitive to issues such as who the settling party will be in the context of a merger.
For additional guidance on the topic of transactional due diligence, please see the article by F. Joseph Warin, et al., Acquisition Due Diligence: A Recipe to Avoid FCPA Enforcement, TEXAS STATE BAR OIL, GAS, & ENERGY RESOURCES LAW SECTION REPORT 2 (June 2006).
The Pain Continues — FCPA-Inspired Civil Litigation
Although the FCPA does not grant a private cause of action, several federal district courts have recently refused to dismiss § 10(b) actions based on allegedly false and misleading statements regarding FCPA violations made in companies' financial statements. These courts have held that the plaintiffs met the heightened pleading requirement for fraud under the Private Securities Litigation Reform Act ("PSLRA").
Continuing this trend, on September 18, 2007, the U.S. District Court for the Middle District of Florida decided two motions to dismiss a securities class action arising, in part, from alleged FCPA violations by FARO Technologies, Inc. The class action complaint named as defendants FARO, several individual FARO employees, and FARO's auditor, Grant Thornton ("GT"). The complaint made various allegations of fraud, including a claim that the company overstated income by including sales resulting from FCPA violations and a claim that the company falsely stated that its system of internal controls was adequate.
In the court's decision, it adopted a magistrate judge's recommendation to deny FARO's motion to dismiss the plaintiffs' second amended complaint. The magistrate judge found that the complaint sufficiently alleged that the individual employees' knowledge of unlawful payments should be imputed to FARO and that FARO and the individual defendants "knowingly or recklessly attested to the adequacy of the internal controls system, when they knew that the system was, in fact, seriously inadequate." In contrast, the magistrate judge recommended that the court grant GT's motion to dismiss because GT did not actively participate in the fraudulent activities alleged against FARO, nor did GT have knowledge of FARO's inadequate internal controls. In addition, despite the existence of some "red flags," the magistrate judge found that GT was not reckless in failing to detect FARO's inadequate controls and fraudulent activity. Accordingly, the court granted GT's motion to dismiss on the magistrate judge's recommendation.
In May 2007, following a denial of its motion to dismiss, Georgia-based medical equipment manufacturer Immucor, Inc. agreed to settle a similar class action for $2.5 million. In denying Immucor's motion to dismiss, the district court held that the "weaknesses [in Immucor's internal controls] could have lead [sic] . . . to liability under the FCPA and impacted the value of Immucor's stock. The Court cannot rule as a matter of law that Immucor's misstatement of those weaknesses was not material." Then on September 27, 2007, just one day after the district court approved the class action settlement, Immucor and its President, Gioacchino De Chirico, entered into administrative settlements with the SEC charging them with violating the FCPA's anti-bribery, books-and-records, and internal controls provisions and ordering them to cease-and-desist from future violations of the same. There was no financial penalty imposed upon Immucor or De Chirico.
On September 19, 2007, in the U.S. District Court for the District of Columbia, a public pension system based in Michigan filed a derivative lawsuit related to alleged FCPA violations against BAE Systems PLC. The lawsuit claims that BAE's officers and directors encouraged and permitted the company's managers to make and authorize more than $2 billion in bribes and kickbacks to win lucrative contracts in violation of the FCPA and other foreign anti-corruption laws. The complaint alleges that this conduct constituted an intentional, reckless, and negligent breach of the directors' and officers' fiduciary duties to the company. In addition, the plaintiff shareholder claims that the defendants misrepresented the quality and effectiveness of the company's compliance program.
Litigation continues in two shareholder derivative suits filed in May 2007 against certain of Baker Hughes, Inc.'s current and former directors and officers. The plaintiffs allege that the defendants failed to implement adequate internal controls, policies, and procedures to prevent the conduct that gave rise to the company's April 2007 settlements with the DOJ and SEC.
Another recent civil case, one with a particularly peculiar fact pattern, demonstrates yet another way in which civil liability can follow from alleged FCPA violations. In March 2006, the Government of the Dominican Republic and the Secretariat of State for the Environment and Natural Resources of the Dominican Republic filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against AES Corporation ("AES"), which is based in Virginia, several of its subsidiaries, and an independent contractor. The complaint alleges that the defendants conspired to dump hazardous coal ash on two beaches in the Dominican Republic, resulting in ecological destruction and undermining the physical and economic health of local communities. In addition to allegations that the defendants violated various environmental laws and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the Dominican Government asserted that the defendants violated the FCPA and the Racketeer Influenced and Corrupt Organizations Act by approving the payment of bribes to Dominican officials to allow the dumping to occur. Further, the complaint alleges that after a Dominican District Attorney attempted to halt the dumping, he was himself offered a bribe and, when he refused, subjected to an attempted physical assault, an attempted firebombing of his car, and death threats before ultimately being fired by corrupt Dominican officials. The complaint asserts that the defendants all knew about and ratified these activities. Interestingly, the Dominican government conceded that corruption was so problematic in its own judiciary that it sought relief in a U.S. court because of concerns that the defendants would purportedly resort to further bribery to win a case brought in its home country. In February 2007, one week before trial, AES settled the case for $6 million.
In short, corporations and their directors and officers must not overlook the third member of the FCPA Trifecta: the DOJ, the SEC, and the civil litigant.
2007 DOJ Opinion Procedure Releases
By statute, the DOJ is required to provide a written opinion at the request of an "issuer" or "domestic concern" as to whether the DOJ would prosecute the requestor under the FCPA's anti-bribery provisions for prospective conduct that the requestor is considering taking. These opinions are published on the DOJ's FCPA website, but only a party who joins in the request may officially rely upon the opinions.
In the FCPA's thirty-year history, the DOJ has issued but forty-seven such written opinions, including three in 2007. In 2006, Alice Fisher commented that "the FCPA opinion procedure has generally been under-utilized" and noted she wants it "to be something that is useful as a guide to business." The three opinion releases issued in 2007 are the most issued in a single year since 2004, when the DOJ issued four releases. The first two of these releases were described above in the Sponsoring Travel Section; the third is described below.
FCPA Op. Proc. Rel. 2007-03
The DOJ issued its final FCPA Opinion Procedure Release of 2007 on December 21. In this Opinion, the requestor sought to make a $9,000 "advance payment" required by a family court judge in a foreign country to cover administrative costs expected to be incurred by the court in administering a dispute over the estate of a deceased relative of the requestor. The requestor represented that she had obtained a written opinion from a lawyer with law degrees in both the United States and the foreign country that the payment she sought to make was not only not contrary to, but explicitly provided for, under the foreign country's laws. The requestor further represented that the payment would be made directly to the clerk's office of the family court, not to the foreign judge presiding over the dispute. The DOJ concluded that the proposed payment would be lawful under two grounds: (1) the payment "will be made to a government entity, the court clerk's office, rather than a foreign official" and "there is nothing to suggest that the presiding judge . . . will personally benefit from the funds after they are paid into the government account"; and (2) the payment is contemplated under the local law of the foreign country so it falls under the FCPA's "lawful under the written laws and regulations" of the foreign country affirmative defense.
2007 FCPA Enforcement Litigation
United States v. Kay
On October 24, 2007, the United States Court of Appeals for the Fifth Circuit issued a much awaited opinion concerning the scope of the FCPA. In United States v. Kay, the court held that payments to foreign officials made to reduce customs duties and taxes, thereby helping the payer gain a competitive advantage in the marketplace, may violate the FCPA's prohibition on payments made to "obtain or retain business."
During the 1990s, David Kay and Douglas Murphy, executives at American Rice, Inc. ("ARI"), paid bribes to various Haitian officials, allowing ARI to avoid paying certain customs duties and taxes on its rice imports. In 2002, following a disclosure to the SEC, Kay and Murphy were indicted, but the district court granted their motion to dismiss the indictment, "concluding that payments to foreign government officials made for the purpose of reducing customs duties and taxes do not fall under the scope of obtaining or retaining business pursuant to the text of the FCPA." In 2004, the Fifth Circuit reversed that decision, holding 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" provided that the "bribery was intended to produce an effect — here, through tax savings — that would assist in obtaining or retaining business." (Emphasis in original). After Kay and Murphy were found guilty at trial, they moved to dismiss and arrest judgment, renewing their argument based on lack of fair warning. The district court judge denied the motion, and Kay and Murphy appealed to the Fifth Circuit on the ground that application of the Fifth Circuit's prior opinion on the scope of the FCPA violated the Due Process Clause by denying them fair notice that their conduct was illegal.
The Fifth Circuit considered four standards for fair notice, ultimately concluding that Kay and Murphy's convictions met each standard. First, the court noted that although the FCPA's "obtain or retain business" provision was "imprecise general language," the FCPA did not violate the prohibition against vagueness because the defendants viewed their payments as measures necessary to keep up with competitors — i.e., to obtain or retain business — and thus a man of common intelligence would have understood that the defendants were "treading close to a reasonably-defined line of illegality." Second, the court explained that when the district court determined that the facts of the case fell within the FCPA's prohibitions, it did not extend the FCPA beyond its explicit terms and thereby violate the prohibition on retroactive application of a novel interpretation of a statute, because "[t]he explicit terms of the FCPA do not include either language relating specifically to contracts or defining more general business practices that may fall under the [FCPA's] business nexus test." Third, the court held that the mere fact that the FCPA "contained an ambiguous provision" did not mean that it was void for vagueness, and the relative dearth of prosecutions under the FCPA of individuals for the "narrow type of payment" at issue in the case did not permit Kay and Murphy to argue that they "were unaware of the boundaries of illegality under the [FCPA] in the 1990s." Finally, the court held that the rule of lenity, which "ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered," did not apply, because the rule permits use of legislative history to resolve ambiguity, and "the mere possibility of articulating a narrower construction of an act . . . does not by itself make the rule of lenity applicable."
The Fifth Circuit also held that the district court's jury instructions, which required that the defendants have committed the act "voluntarily and intentionally" and "with a bad purpose or evil motive of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means," met the common law definition of "willfully," by requiring that a defendant know he is committing the act itself, and know that it is "in some way wrong." The court expressly declined to include a third requirement — that the defendant "knew that he was violating the specific provisions of a law" — thus agreeing with prior Second Circuit precedent in limiting the requirement of such specific knowledge to "highly technical exceptional statutes" such as federal tax laws, reiterating the traditional rule for criminal willfulness: "ignorance of the law is no excuse." The Fifth Circuit affirmed the convictions of both defendants.
The Kozeny Cases
On June 21, 2007, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York dismissed all FCPA counts pending against Frederic Bourke and David Pinkerton on statute-of-limitations grounds. Along with Viktor Kozeny, Bourke and Pinkerton were indicted on May 12, 2005 for allegedly participating in a massive scheme to bribe government officials in Azerbaijan. The three men allegedly bribed government officials to ensure that they would privatize Azerbaijan's state-owned oil company, thus allowing Kozeny, Bourke, Pinkerton, and others to share in the anticipated profits arising from that privatization. Judge Scheindlin later reinstated several of the FCPA counts on July 16, 2007, though the reasoning for her opinion did not change.
Pinkerton and Bourke had moved to dismiss the FCPA counts as time-barred (Kozeny, who has thus far refused to submit to U.S. jurisdiction, did not join in the motion). The DOJ had previously sought and received a court order tolling the statute of limitations under 18 U.S.C. § 3292, which permits the United States to obtain such orders for up to three years while it pursues an official request to obtain evidence located in a foreign country. Although the DOJ filed the official request at issue in this case with the governments of the Netherlands and Switzerland within the five-year statute-of-limitations period, it did not obtain the § 3292 court order until after the statute of limitations had run. Judge Scheindlin held that it is the court order, not the application with the foreign government, that tolls the statute of limitations under 18 U.S.C. § 3292. The DOJ has appealed Judge Scheindlin's decision to the Second Circuit, which has yet to schedule oral argument.
As noted above, Kozeny has thus far refused to appear in U.S. court to answer the charges against him. He was arrested in the Bahamas and the DOJ filed an extradition application with the Bahamian courts. On October 25, 2007, after a lower Bahamian court approved the application, an intermediate appellate court overturned the extradition order, basing its decision, in part, on the failure of the U.S. government to disclose Judge Scheindlin's decision dismissing the FCPA charges against Kozeny's co-defendants. Kozeny has been released on $300,000 bail as the prosecution appeals the intermediate court's ruling to the highest court in the Bahamas.
In another related case from 2007, on July 6, following the district court's dismissal of the FCPA charges against Bourke and Pinkerton, the DOJ and SDNY jointly announced a non-prosecution agreement with hedge fund Omega Advisors, Inc. to resolve allegations surrounding its participation in the Azeri oil privatization effort. According to the agreement, Omega invested more than $100 million in companies controlled by Kozeny while knowing that he had entered into corrupt arrangements with Azeri officials giving them a financial interest in the privatization effort. Omega agreed to forfeit $500,000 in connection with its FCPA settlement.
2007 Legislation Relevant to the FCPA
Two pieces of legislation relevant to the FCPA are currently pending in Congress. If either bill passes, the implications for companies subject to the FCPA could be far-reaching.
On August 3, 2007, Representative Gene Green (D-TX) introduced H.R. 3405, a bill that would require all government contractors to certify, before any Executive Agency may contract with it, that they, their employees, and their agents have not violated the FCPA or analogous foreign international corruption statutes. The legislation arises from a concern that U.S. companies are at a disadvantage when competing against foreign competitors who are not bound by the FCPA. The intent of H.R. 3405 is to level that playing field somewhat by requiring all companies to certify their compliance with the FCPA before bidding on contracts with the U.S. government. Several companies have criticized the bill because it would render them unable to make the requisite certification and bid on a U.S. government contract if they have ever violated the FCPA in the past, even if the past violations were voluntarily disclosed, fully investigated, and prosecuted by the government. The bill could also require all government contractors to notify the government of previously undisclosed past violations of the FCPA. H.R. 3405 remains in the House Subcommittee on Government Management, Organization, and Procurement, where it was referred in September 2007.
On November 13, 2007, the House passed H.R. 3013, a bill that would prohibit federal prosecutors and agents from demanding, requesting, or conditioning treatment based on a company's disclosure of, or refusal to disclose, privileged attorney-client communications or attorney work product. H.R. 3013 would also prohibit federal prosecutors and agents from conditioning a charging decision on such disclosures or using any such disclosures as a factor in determining whether a company has cooperated with the government. This legislation is a response to the "culture of waiver" that has been created by recent policy guidance issued by the DOJ that treats companies more harshly if they do not waive the attorney-client privilege and work product protections.
H.R. 3013 would apply in all situations in which the government investigates and prosecutes a company, but the issue of waiver arises frequently in the context of FCPA investigations. In many cases, a company that has voluntarily disclosed allegedly improper payments to the DOJ or the SEC will conduct its own internal inquiry of the conduct and then cooperate with the government's investigation to receive favorable treatment. In the past, the government expected that companies in such a position would waive privilege to gain the full benefits of cooperating with the government. The House Report discussing H.R. 3013 discusses the importance of the attorney-client privilege and the work product doctrine, concluding that "[t]he clear thrust of [the DOJ's] new policies is that waiver is required to get 'cooperation' credit, a crucial element in charging decisions." Accordingly, H.R. 3013 tries to "strike a balance between the promotion of effective law enforcement and compliance effort . . . and the preservation of essential legal protections."
On November 14, 2007, H.R. 3013 was referred to the Senate Judiciary Committee. In September 2007, the Senate Judiciary Committee held hearings on S. 186, a bill that is identical to the version of H.R. 3013 that was first introduced in the House, but there has been no further action.
2008 Litigation Docket
A collateral consequence of the drastic upswing in the prosecution of individual defendants for alleged FCPA violations is almost certain to be an increase in litigated FCPA cases, of which there are but a handful in the statute's thirty-year history. Without the same complex mix of public relations and other collateral concerns that pressure many corporate defendants to settle — call it the Arthur Andersen Effect — not to mention the motivation of literally fighting for their freedom, individual defendants have traditionally been more willing to put the government to its burden at trial. Look for at least one of the below pending cases to see a jury in 2008:
United States v. William J. Jefferson — Allegations described above, the trial proceedings are presently scheduled to begin before Judge T.S. Elliot III in the U.S. District Court for the Eastern District of Virginia on February 25, 2008. A potential trial derailment factor may be the DOJ's recent petition for certiorari from an adverse decision of the D.C. Circuit Court of Appeals suppressing certain evidence seized in a search of Jefferson's congressional office on Speech or Debate Clause grounds.
United States v. Leo W. Smith — Smith, a co-founder of California-based military equipment manufacturer Pacific Consolidated Industries LP, was indicted on April 25, 2007 on FCPA anti-bribery, money laundering, and tax offenses stemming from an alleged ten-year conspiracy whereby Smith made more than $300,000 in bribe payments to an official of the United Kingdom's Ministry of Defence in return for the award of U.K. Royal Air Force contracts collectively worth more than $11 million for his employer. Smith was arrested on June 18, 2007, has pleaded not guilty to all charges, and is presently scheduled to go to trial before Judge Andrew Guilford in the U.S. District Court for the Central District of California on April 1, 2008.
United States v. Frederic Bourke and David Pinkerton — As described above, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York dismissed some, but not all, of the FCPA charges pending against Bourke and Pinkerton on statute-of-limitations grounds. The DOJ has appealed Judge Scheindlin's ruling to the Second Circuit, but in a recent court filing, she nonetheless insisted on keeping a March 3, 2008 status hearing to discuss a trial date for the remaining counts. And, as noted above, Victor Kozeny's indictment remains outstanding should the United States be successful in its extradition application.
United States v. Gerald and Patricia Green — Gerald Green, a Los Angeles film company executive, and Patricia Green, Gerald's wife and business partner, were both arrested on December 18, 2007 on the basis of a criminal complaint charging them with conspiring to violate the FCPA's anti-bribery provisions by paying more than $1.7 million to a Thailand Tourism Authority official to persuade the official to award the Green's businesses contracts to run the annual Bangkok International Film Festival. A trial date has yet to be scheduled.
SEC v. Yaw O. Amoako, Steven J. Ott, Roger M. Young — Amoako, Ott, and Young all pleaded guilty to criminal FCPA anti-bribery violations in 2007 arising from their conduct while employed by ITXC Corp. But all additionally have pending civil FCPA actions that were brought by the SEC in 2005 and 2006 and stayed during the pendency of the criminal prosecutions. In a December 2007 status report, the DOJ advised the court that the SEC expected Commission action on a settlement proposal for Ott and Young by January 31, 2008. Amoako's status is less certain, as his attorney recently successfully sought to be removed on the grounds that Amoako has refused to pay accrued legal fees.
SEC v. Roy Fearnley — When the SEC filed a settled civil action with Baker Hughes, Inc. in April 2007 (described above), it also filed a contested complaint against Fearnley, a former Baker Hughes Business Development Manager, charging him with FCPA anti-bribery violations and aiding and abetting his former employer's violations of the FCPA's books-and-records and internal controls provisions. Fearnley, a U.K. citizen last known to reside in Kazakhstan, has not answered the SEC's complaint.
United States v. Edward V. Acosta — As noted above, Acosta, former Senior Costa Rican Country Manager for Alcatel SA, was indicted on criminal FCPA anti-bribery charges in March 2007. In June 2007, the U.S. District Court for the Southern District of Florida transferred Acosta to fugitive status.
China, China, China — The Perils of Doing Business
China remains a high-risk environment for conducting business in compliance with the FCPA. In 2007 alone, the DOJ and SEC brought FCPA cases against Si Chan Wooh and Robert W. Philip, both formerly of Schnitzer Steel Industries, Inc. (which itself settled FCPA charges in 2006); Lucent Technologies, Inc.; York International Corp.; and Paradigm B.V.; all stemming from allegedly improper conduct in China. These five FCPA actions in 2007 nearly doubled the number involving China from the previous three years combined.
Ranked seventy-second on Transparency International's 2007 Corruption Perceptions Index, corruption is rampant in China, and Chinese government officials routinely seek free meals, gifts, entertainment, cash-equivalent vouchers, and sponsored travel opportunities. According to the U.S.-China Business Council, "[s]o tightly knit are corrupt practices into the fabric of modern Chinese society that they are almost invisible. . . . For businesspeople, corrupt practices have layered cost upon cost, as each government organization with any say over a given deal has to be negotiated with, cajoled, and managed in order to fend off the rent-seeking behavior."
China's layered government enhances this already corrupt environment. Businesses seeking licenses are forced to deal with several layers of government and several agencies within each layer. Recent central government anti-corruption reforms have not affected local customary practice. Moreover, in China, the intersection of private and governmental business makes it difficult to identify foreign officials. For instance, many businesspeople also hold governmental positions; and many major businesses are state-owned or state-controlled. It is typical for an ex-government official who remains a Communist Party member and maintains continuing ties to the government to serve as a "consultant." Further, as a multitude of cases and settlements have made clear, the definition of "foreign official" is broad indeed, encompassing airport officials (InVision Technologies, Inc.), physicians and lab employees at government-owned hospitals (Diagnostic Products Corp.), and employees of China National Offshore Oil Company (Paradigm B.V.).
China is especially dangerous because the line between bona fide business expenses and corruption is not well-defined. For instance, the network of connections built on personal relationships (guanxi) is essential for successful business in China. Yet, access to that network often requires providing gifts, meals, and entertainment. Additionally, gifts for Chinese holidays, like Chinese New Year and the Mid-Autumn Festival, can also blur the line. The difference between traditional gifts (e.g., mooncakes) and cash gifts — even those of lesser value — can mean the difference between a mere symbolic gesture and a bribe. Of more recent note, officials are increasingly requesting "good works" marketing, in which funds are redirected to community projects in exchange for business. These cultural and community pressures make doing business in China a precarious proposition.
As the mix of revenues for U.S. corporations increasingly shifts abroad, and as foreign corporations increasingly take advantage of U.S. securities markets, the challenges of navigating foreign environments in compliance with the FCPA continually increase. The pitfalls for even the most compliance conscious corporations are substantial. A quick "top-ten" checklist to bolster FCPA compliance should include:
1. Clearly articulated policy against violations of the FCPA and foreign anti-bribery laws;
2. Appropriate disciplinary procedures to address compliance violations;
3. Regular FCPA training for, with mandatory compliance certifications by, employees and third-party representatives;
4. Careful pre-retention scrutiny of all third-party representatives;
5. Senior management oversight of third-party representatives post-retention;
6. Inclusion of anti-corruption representations and undertakings, with audit and termination rights, in all third-party representative agreements;
7. Anonymous "Helpline" reporting system;
8. Centralization of accounting systems to achieve corporate headquarters-review of all financial transactions (i.e., follow the money);
9. Thorough pre-acquisition due diligence of prospective targets, with a particularized focus on the FCPA and analogous foreign anti-bribery laws; and
10. Immediate integration of recently acquired subsidiaries to assure that the new entity is effectively bathed in the compliance culture of the acquirer.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues. We have more than 20 attorneys with substantive FCPA expertise. Joe Warin, a former federal prosecutor, currently serves as a compliance consultant pursuant to a DOJ and SEC enforcement action. The firm has 20 former Assistant U.S. Attorneys and DOJ attorneys. Please contact the Gibson Dunn attorney with whom you work, or any of the following:
F. Joseph Warin (202-887-3609, fwarin@gibsondunn.com)
Daniel J. Plaine (202-955-8286, dplaine@gibsondunn.com)
Judith A. Lee (202-887-3591, jalee@gibsondunn.com)
David P. Burns (202-887-3786, dburns@gibsondunn.com)
Jim Slear (202-955-8578, jslear@gibsondunn.com)
Michael S. Diamant (202-887-3604, mdiamant@gibsondunn.com)
John W.F. Chesley (202-887-3788, jchesley@gibsondunn.com)
Patrick F. Speice, Jr. (202-887-3776, pspeicejr@gibsondunn.com)
Lee G. Dunst (212-351-3824, ldunst@gibsondunn.com)
James A. Walden (212-351-2300, jwalden@gibsondunn.com)
Alexander H. Southwell (212-351-3981, asouthwell@gibsondunn.com)
Robert C. Blume (303-298-5758, rblume@gibsondunn.com)
J. Taylor McConkie (303-298-5795, tmcconkie@gibsondunn.com)
Nicola T. Hanna (949-451-4270, nhanna@gibsondunn.com)
Debra Wong Yang (213-229-7472, dwongyang@gibsondunn.com),
the former United States Attorney for the Central District of California.


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US Space Force Challenges China's Galactic Ambitions
Decades after the end of the space race, it is time for a new competition over the final frontier. US President Donald Trump signed the US Space Force into law Dec. 23, officially inaugurating the newest branch of the US armed forces: Space Force. Although Washington celebrated the ceremonious occasion, Beijing was not as joyous.
Geng Shuang, Chinese foreign ministry spokesman, condemned the action, telling reporters his government was "resolutely opposed" to the creation of the US Space Force.
"The relevant U.S. actions are a serious violation of the international consensus on the peaceful use of outer space, undermine global strategic balance and stability, and pose a direct threat to outer space peace and security," he said.
China's Plans to Control Space
The Chinese government is against the idea of America's newest military branch, but considering that Beijing is generally set against anything coming out of Washington, that is of little surprise. Geng's declaration that Space Force is detrimental to the sanctity of outer space is also hypocritical given Beijing's actions. At no point during his press briefing did Geng mention the Chinese destruction of a satellite via missile in 2007, an event that helped prompt an American response to secure space. Vice President Mike Pence even cited it as a reason for expanding America's military presence in August 2018.
"Our adversaries have transformed space into a war-fighting domain already. And the United States will not shrink from this challenge," Pence said at the Pentagon in 2018. "In 2007, China launched a missile that tracked and destroyed one of its own satellites—a highly provocative demonstration of China's growing capability to militarize space."
A 2015 defense white paper from Beijing detailed plans on capitalizing on control of space and it was from this report that China created the People's Liberation Army Strategic Support Force (PLASSF), an organization tasked with electromagnetic spectrum, space, and cyberspace, essentially any aspect of unconventional warfare.
In 2017, the Secure World Foundation published an analysis titled "Global Counterspace Capabilities: An Open Source Assessment." The research and evidence behind the report heavily implicate China as making a massive push for space dominance. Sources with firsthand knowledge of operations at PLASSF said the military branch has an objective of "ensuring one's ability to fully use space while at the same time limiting, weakening, and destroying an adversary's space forces."
China is not the sole aggressor on this new battlefield, either. According to Pence Russia is hard at work creating a laser to target satellites and missiles launched from the air that could reach outer space.
The US Military Is Fully Onboard With Space Force
These developments gave all the justification needed for the Trump administration to roll out its vision for protecting US satellites. When weighed against the two alternatives—leaving space defenseless or under the Air Force umbrella—the decision to create the Space Force seemed like an easy choice, especially as it opens up the door to pour more of the US budget into defense spending.
When Trump first floated the idea of Space Force, it was met with apprehension and derision. The name alone sounds like something from science fiction. Air Force Gen. John W. Raymond, Space Force commander, validated the need for it, however.
"I can tell you from my perspective, the scope, scale and complexity of that threat is alive and well and very concerning," Raymond said, speaking at the Center for Strategic and International Studies Nov. 18. Raymond called for rapid development of both offensive and defensive weapons for use in space, something he revealed the Pentagon has already begun pursuing.
Washington is finally taking space seriously and Beijing does not approve. For China, however, it is a "rules for thee, but not for me" mentality. Just as it publicly denies its genocide against Uighurs and the Tiananmen Square massacre, the truth is often the opposite of what Beijing says. Its calls for a peaceful space should be interpreted as cynical cover of its own intention to control and weaponize space.
US Space Force
US Troop Withdrawal Could Make Biden's Job Harder
How Soon Can Pfizer's COVID-19 Vaccine Be Deployed?
Terrorism /
No Winning For Macron In Fight Against Islamic Extremism
Trump Preparing for Election Fight With Barrett's Confirmation
Russia Won't Agree to US Terms for New START Extension Potentially Leaving It for Biden to Fix
Minsk Group Absent as Armenia–Azerbaijan Conflict Continues
Republicans Blame Democrats for Aid Delay When They're to Blame
Putin Looks to Possible Missile Treaties with Biden as He Faces Reality of 2020 Election
Washington Tries to Win Over Algeria as Regional Conflict Increases
Saudi Arabia Arrests 10, Taking Down Alleged Iran-Linked Terrorist Cell
Saudi Dissidents Create Political Party to Oppose Riyadh's Monarchy
Turkey's Mission in Libya Grows Harder With Sarraj's Pending Resignation

redpajama_set_name: RedPajamaCommonCrawl


text:
Selena Gomez honored for mental health advocacy work
in Art & Entertainment, Mobile Home
FILE – Selena Gomez, a cast member in "Only Murders in the Building," turns back for photographers at the second season premiere of the Hulu series, Monday, June 27, 2022, at the Directors Guild of America in Los Angeles. Pop star and actor Gomez is being honored for her work as an advocate for mental health awareness. The Boston-based Ruderman Family Foundation says the 30-year-old entertainer is the recipient of this year's Morton E. Ruderman Award in Inclusion. (AP Photo/Chris Pizzello, File)
https://japantoday.com-By WILLIAM J. KOLE
Pop star and actor Selena Gomez has made no secret of her personal mental health struggles — they've made her an outspoken advocate for awareness and getting other young people the help they need.
"I hope that by using my platform to share my own story … I can help others feel less alone," Gomez said earlier this year at a roundtable at the White House with first lady Jill Biden and U.S. Surgeon General Vivek Murthy. In 2016, Gomez took a break to deal with anxiety, panic attacks and depression stemming from her battle with lupus. Four years later, she revealed she'd been diagnosed with bipolar disorder.
On Monday, the Boston-based Ruderman Family Foundation honored the 30-year-old entertainer with its annual Morton E. Ruderman Award in Inclusion for "drawing inspiration from her personal journey" to help others worldwide get access to counseling and other services.
"Mental health impacts all of us, and we each have a role to play in ensuring that everyone — regardless of their background — has access to mental health services. I hope by sharing my own story and using my platform, we can empower each other and more young people to address mental health," Gomez said in a statement.
The Texas-born Gomez said she strives to use her status as a public figure to share her own story in a way that empowers others.
A new documentary that explores her struggles, "Selena Gomez: My Mind and Me," premiered earlier this month on AppleTV+.
"Mental health is personal for me. Figuring out how to manage my mental health hasn't always been easy, but it's something I am constantly working on, and I hope I can help others work on it, too," she said.
In 2020, the "Wizards of Waverly Place" actor started the Rare Impact Fund shortly before launching her Rare Beauty line of cosmetics, pledging to donate 1% of all sales to the fund to help expand mental health services and education for young people.
So far, the fund has distributed $1.7 million to nearly a dozen and a half mental health organizations.
"Selena Gomez powerfully embodies our foundation's mission in the mental health arena — a mission which continues to take on greater importance amid today's unprecedented mental health crisis for teens, young adults and the entire population," said Jay Ruderman, president of the Ruderman Family Foundation.
The award, now in its ninth year, is named for Morton E. Ruderman, a founder of the Ruderman Family Foundation. Past recipients include NBA All-Star Kevin Love, Academy Award-nominated actor Taraji P. Henson, filmmakers Peter and Bobby Farrelly, Olympian Michael Phelps, Oscar-winning actor Marlee Matlin, and former U.S. senator and Americans with Disability Act architect Tom Harkin.
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IPV6 has been developed to replace IPV4 which is running out of addresses.
Although it has been around almost 10 years it is still not widely deployed and supported.
However adoption rates are increasing rapidly and IPv6 traffic crossed the 10% threshold in February 2016 (wiki) .
For small business/home and home office networks it is likely to be many years before IPV6 becomes an issue.
All modern computers and mobile phones support both IPv4 and IPv6, and if you look at your device IP addresses you will probably see both.
In this tutorial I want to take a quick look at IPv6 addresses, and how they relate to IPv4 addresses.
An Ipv6 address uses 128 bits as opposed to 32 bits in IPv4.
Because an hexadecimal number uses 4 bits this means that an IPv6 address consists of 32 hexadecimal numbers.
These numbers are grouped in 4's giving 8 groups or blocks. The groups are written with a : (colon) as a separator.
Note: Because of the length of IPv6 addresses various shortening techniques are employed.
The main technique being to omit repetitive 0's as shown in the example above.
In IPv4 an address is split into two components a network component and a node component.
This was done initially using Address classes and later using subnet masking.
In IPv6 we do the same. The first step is to split the address into two parts.
The upper 64 bits are used for routing.
The lower 64 bits identify the address of the interface or node, and is derived from the actual physical or MAC address using IEEE's Extended Unique Identifier (EUI-64) format. See this Wiki description for exact details.
If we look at the upper 64 bits in more detail we can see that it is split into 2 blocks of 48 and 16 bits respectively the lower 16 bits are used for subnets on an internal networks, and are controlled by a network administrator.
The upper 48 bits are used for the global network addresses and are for routing over the internet.
Link Local – Scope network link- Not Routed internally or externally.
These addresses are known as global Unicast addresses and are the equivalent of the public addresses of IPv4 networks.
In IPv4 internal addresses use the reserved number ranges 10.0.0.0/8, 172.16.0.0/12 and 192.168.0.0/16 and 169.254.0.0/16.
These addresses are not routed on the Internet and are reserved for internal networks.
IPv6 also has two Internal address types.
These are meant to be used inside an internal network, and again they are not routed on the Internet.
It is equivalent to the IPv4 address 169.254.0.0/16 which is allocated on an IPv4 network when no DHCP server is found.
They are restricted to a link and are not routed on the Internal network or the Internet.
Link Local addresses are self assigned i.e. they do not require a DHCP server.
A link local address is required on every IP6 interface even if no routing is present.
Unique Local are meant to be used inside an internal network. They are routed on the Internal network but not routed on the Internet.
However IPv6 addresses contain a colon as separator and so must be enclosed in square brackets.
Are all IPv6 addresses routable?
Great Article! I am newbie / dumbo to his IPv6. My personal requirement is, I need a way to directly connect / communicate (say via HTTP/S) between 2 mobile phones that are geographically separated and under 2 different Mobile Service Providers. Presuming that the 2 Service Providers provide IPv6 addressing, would it be possible that I could browse to a URL served from one device, through a browser in the second device?


Got Ghost chairs on the brain?
In the last decade the interior decorating industry has experienced a revival of sorts and the furniture market in the United States has been directly impacted, as furniture sales account for annual revenue of $63billion.
While insiders are aware that the lounge chair was the first chair the Eameses designed for a high end market, the common shopper may not be aware that Ghost chairs are actually a redesign of the classic Louis XVI armchair and has increased in demand recently. The Eames lounge chair on the other hand, first appeared on the Arlene Francis 'Home" show broadcast on the NBC television network in the United States way back in 1956, in black and white!
In terms of other types of furniture, the Tolix stool is a fun modern design and despite having status as a modern classic, a Noguchi coffee table is widely available and relatively affordable. If you have not familiarized yourself with Noguchi tables be sure to take a look, they are quite unique and eye opening.
Ghost chairs remain a popular choice for ceremonies and casual dining establishments as well. Named for their translucent look, Ghost chairs have been made affordable and are made in many styles and varieties. If Ghost chairs are what you have on the agenda, you are certainly encouraged to search and do your due diligence in finding the right look for you home or business. Designer chairs such as Ghost chairs are so popular because they can jazz up any scenery and instantly modernize any setting. More like this blog.


Bucket dimensions: flange OD=9", can OD=8", depth 6"
These buckets weld in. The lamps install from the front and are fully adjustable. Trim rings are held in place with 3 spring clips so no hardware shows. You can use sealed beams or halogen bulbs.
Add in some Blue Dot or Snake Eye headlights and you'll be earning huge style points.
This part fits most 1940 1941 1942 1946 1947 1948 1949 1950 1951 1952 1953 1954 1955 1956 1957 Cars and Trucks.; exceptions may apply. Please read the complete description to see if this part fits your specific vehicle and application.


"As a new entrepreneur with no sales experience, Katie has been a wonderful teacher and resource for me. I have learned so much about the sales conversation and how to make it more about building relationships and less about a sales pitch. The Conversation Club has been a wonderful support system to learn and connect with other entrepreneurs in the same boat."
Not sure which level of the Club is right for you? Check out the break down of the Club offerings below!
The Conversation Club is about community and support. We use a Private Facebook Group for our Clubbers to connect with one another, get on- going support Monday-Friday with prompted posts and homework and have a safe and open environment to voice the wtf's of sales!
Remember back in school when your teachers would set certain times for you to just "pop-in" with any questions on homework or something was on your mind? That is precisely what Open Office Hours is about. (1) hour each month via Zoom video chat, you have an opportunity to get the one-on-one answers to your questions while allowing the rest of the group to tune in. You can submit questions through the Facebook Group or bring them directly to Open Office Hours.
Here you get to learn the secret sauce to sales conversations. You will learn the proven processes, strategies and systems covering: messaging, networking, sales process, follow-up, sales table conversations, asking for referrals, collecting testimonials, developing a customer retention plan and continuing to sell to your existing customers. Basically, we cover all the reasons for the "F" word (failure) in sales conversations!
No one here is to do this alone! Each month we get together virtually to network. You have an opportunity to get to know your fellow Clubbers, make connections and identify collaborations. The Conversation Club is a community of like-minded entrepreneurs and what a better way to practice your networking skills than directly in our group!
Growth strategy – Understanding how to develop your program, deliver your program and scale your program. Presented by Kimberly Alexander of Kimberly Alexander Inc.
Business Operations – To make any of the strategies work, you have to have a system for the "back of house" operations. Your CRM, administrative and marketing tools. Presented by Abbey Harrison of Assist for the Win.
Digital Brand Strategy – Your online MUST reflect your offline. Learn how to create a smooth transition from your offline brand to your online brand and get connected with your audience. Presented by Donna Galassi of Blue Zenith.
Creativity Coaching – Balance is key as an entrepreneur. You must be able to equally use your left and right brain skills. Jacki Cox is a Creativity Coach with Swirls LLC and provides training on harnessing your creativity and balancing your talents to ignite your brilliance.
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Any good membership program brings you killer discounts to affiliate partner services. Well, The Conversation Club delivers, baby! Each of our Collaborative Strategists and Partners have an EXCLUSIVE offer to The Conversation Club Members.
Get the extra lovin' you need to overcome your "F" words and find sales success. Once per quarter, you will meet with Katie via Zoom video chat to work out your specific obstacles and review homework that was provided in the previous months.
Well that's a mouthful huh?! Basically you will get training that no one else is in The Conversation Club. Yep, you're special and will get exclusive training here. This training will go deeper than the basic levels of the Club and include Communication Strategy to help you create the messaging, timeline and delivery of an event, workshop, program or anything else you need to tell the world about!
You know the buddy system right? You'd get paired up in school to make sure one of you didn't get lost? That's what the Accountability Partner system is like in The Conversation Club. You will be strategically paired up so no one goes MIA, or slacks along the way!
Exactly as it states, you get special and exclusive training here from the additional experts! Click here to learn more about the experts!
"I joined the Conversation Club a year ago this month and I can't say enough about what a huge help it is to know other women are struggling with the same issues and then the positive feedback you get when you reach out to the group is awesome. I have always known the importance of follow-up but never really had a simple system that brought the results that "The Fortune is in the Failure" provides. Being part of this "club" has helped me to establish a polished core message, organize my contacts and establish a proven follow-up system, as well as the ability to connect with power partners who are the experts in their fields. Katie walks the walk and lucky for us she is sharing her knowledge and experience with us. Join today you won't be sorry!!"
Click the button join the club! If you are already a member, you may login below. You can also see the list of training topics for all of 2018 below.


text:
I realise it's been a while since I blogged. I should've blogged about my album, or the tour I did in July. I probably should've even blogged the final part of my European Journey, I will get round to that though, Germany was incredible. However, for now, this is a blog about a very big thing to do with my upcoming dates in October. After years of playing solo, I've decided to do a few gigs with a band again. When I lived in Wrexham, I put a band together and we played together for a couple of years, this band was called The Peacemakers. Since I moved to London, I've been doing things solo, as it costs a lot to bring a band down from Wrexham. Until now…I have got together a few uber talented friends and we'll be doing a couple of shows together in October.
People have been saying for a while that I should get a band, mainly because I always record as a band, so I suppose people are used to hearing these big arrangements. As much as I've tried to recreate and rearrange the tracks for just my self and a guitar (and a few other toys), getting a band together is a completely different ball game. Let me introduce you to the members of the band:
Drums: Tom Shepherd
Tom is the drummer out of my function band, In Session. He joined the band at a similar time to me and we got on like a house on fire ever since. Tom is one of those musicians, who have a ridiculously good musical ear. Working as musical director on Cruises for years means that he can bring that extra sparkle to the band when it comes to arranging. Not only that, he is a great drummer and ridiculously versatile. Tom also plays in a band called 'Bond Street' who do like 50's style arrangements of modern songs. Check them out here. He also played in 'For Apollo' with Nick.
In Session
Bass Guitar: Nick Kent
What can I say about Nick Kent? I've known Nick for around 6 years now. We've lived together for just over 3 years. He is one of the people that forced me to move down to London. When I first moved to London, he was the one person to motivated me the most to go out and get work. This was because I spent most of my days on the sofa being hungover and watching rubbish TV. He's always been there for me to lend a helping when I need it. During my ONTAW project, he borrowed me his really nice bass guitar almost every week. He also filmed a few of the videos, and featured in a couple….most notably 'Blank Page'.
Nick studied Bass guitar at degree level, during which time he joined a band called 'TAT" and toured the world as a blue haired punk with a mohican and neck muscles of a greek god. During his spell with TAT, he's opened for acts such as Alice Cooper, NOFX, The Used, Me First and the Gimme Gimme's, Bad Religion as well as doing a few Warped Tours. Since then, he's been dabbling in bits and bobs, like playing Bass for the American Idiot UK theatre tour and most notably playing for Dave Giles, which he often describes as his proudest moment as a musician.*
As well as that, he's an awesome photographer and most of pictures you see of me were taken by him. He is mastermind between the swiss roll picture, which he describes as 'A Modern Day Mona Lisa'. He also directed/filmed/edited the music video for 'Comfortable'.
Electric Guitar: Jac Roberts
I've known Jac the longest out of anyone in the band as he is a fellow Wrexham lad. I first met Jac circa 2006/2007 I reckon? The first band that I sang in, needed a guitarist and he was one of few people that replied to the advert. He joined the band, which was called 'The Rigbys' and it was one of the most fun musical ventures I've ever had. We were together a few years and played some awesome gigs, some of which included supporting The Subways and Nine Black Alps.
The Rigbys
After The Rigbys, Jac went on to play guitar for various projects while studying at Cheltenham. Jac had a fair level of success with his band 'Deaf Club' who played some pretty big shows including Koko in Camden and also SXSW festival in Austin, Texas.
So, there's my band. I'm so excited to play these shows with these guys and play the songs louder than ever. I'll be playing Manchester on 8th October and London on 15th October with the band. Here's where you can get tickets:
Manchester: http://www.wegottickets.com/event/410372
London: https://www.ticketweb.uk/event/danny-gruff-the-camden-assembly-tickets/7502255?pl=camdenassembly


Banker turned author Krishan Partap Singh tries his hand at an under-served genre for Indian writers writing fiction in English – the political thriller – and comes up with interesting results.
Buy both together and save 35% !!
It's only in recent years that new generation Indian authors have attempted to go beyond the melancholy NRI stories but the political thriller has remained out of bounds (the last notable effort was Aniruddha Bahal's bunker 13 which went on to become famous for other reasons). Krishan Partap Singh not only makes a valiant entry but also enlarges the scope and vision with a trilogy – there's no let-me-try-and-see-what-happens here.
The first book in the Raisina Series trilogy is Young Turks and Singh is clearly inspired by Jeffrey Archer's Kane and Abel. Two young turks Azim Khan and Karan Nehru (with a weak link to the other Nehru clan) are school mates and friends. The book traces their early years and growing interactions till both enter India's political theatre with differing perspectives. A quirk of fate pits them against each other in the Hindi heartland and as their popularity and clout grows, so does the distance.
Surprisingly, in the second book of the series Delhi Durbar, Nehru and Khan play supporting roles and the key protagonist is Jasjit Singh Sidhu who is forced to return to India and take over the family business after the death if his father in a freak accident. The family business is power broking in the hallowed circles of North and South blocks and Sidhu gets involved in a high stakes power game involving the Prime Minister on one side and an army general who becomes the President on the other hand. The President, who is also Sidhu father-in-law is bent on declaring martial law in the country and the fast evolving games from both sides of the fence puts Sidhu right in the middle of a national conspiracy. While the plot is sometimes over the top, Singh clearly uses the tools of exaggeration to make his points regarding democracy and army rule.
The third and last book in the series apparently brings back Karan Nehru and Azim Khan to the forefront and going by the first two books, we certainly look forward to the last installment.
Krishan Partap Singh has a simple narrative style and successfully passes a stern test – the background introduction of characters in an action thriller is mostly of dull prose but Singh manages this quite well like a Frederick Forsyth or Jeffrey Archer, one can see the hand of a deft editor here. However, the same editing perhaps robs the opportunity to develop a strong character in Jasjit Singh Sidhu, sometimes the pace of the action makes Sidhu come across as too simplistic, which does not merge well with his overall approach.
And yes, there is no need to read Young Turks before Delhi Durbar, both are self contained novels.
Overall, the series is skillfully executed and well worth a read.
Buy Young Turks or Delhi Durbar and save 20% now.