Earlier this year, the SEC and DOJ settled parallel criminal and civil enforcement actions against Titan Corporation (“Titan”) under the Foreign Corrupt Practices Act (“FCPA”). Titan agreed to pay the largest FCPA penalty to date of $28.5 million. This case is a reminder that companies need to adopt and enforce FCPA compliance policies before the discovery of FCPA problems leads to the unraveling of potential merger discussions and creates financial and reputational risk for the company, both of which occurred in Titan’s case. The SEC’s investigation of Titan also highlights future potential enforcement actions under the antifraud and proxy provisions of the federal securities laws for publication of false or misleading material disclosures regarding provisions in merger and other agreements filed with the SEC by an “issuer.” See Related Resources
The FCPA prohibits offering or giving bribes or other corrupt payments to foreign officials for the purpose of obtaining or retaining business. The FCPA also requires issuers to keep accurate books and records and to maintain reasonable internal accounting controls for preventing and detecting FCPA violations. An “issuer” is any entity (whether U.S. or foreign) that either has a class of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934 (“Exchange Act”) or that is required to file periodic reports with the SEC pursuant to Section 15(d) of the Exchange Act.
In March 2005, Titan pleaded guilty to two felony counts of violating the FCPA’s anti-bribery and books and records provisions and to one felony count of filing a false tax return. A criminal fine of $13 million and $15.5 million in disgorgement of unlawful profits and prejudgment interest comprise the $28.5 million penalty paid by Titan. Titan was charged with having funneled more than $2 million through an agent in the West African nation of Benin in 2001 toward the re-election of Benin’s president. Titan was involved in a project to build and operate a wireless telephone network in Benin, and part of Titan’s compensation was a management fee of millions of dollars. The payments through the agent were to facilitate Titan’s contract negotiations with the Benin government and to secure an increase in Titan’s management fees, but were falsely invoiced as “consulting fees.”
In September 2003, Titan entered into merger discussions with Lockheed Martin. In the merger agreement, Titan represented that it had not taken any action that would “cause the Company or any of its Subsidiaries to be in violation of the FCPA.” The merger agreement was appended to the proxy statement Titan filed with the SEC and sent to shareholders. The proxy statement itself also disclosed the representation regarding FCPA compliance. The SEC’s position was that “public disclosure” of representations and warranties contained in a filed agreement, whether in the context of a proxy statement or “otherwise,” can be considered disclosure to investors regarding the state of the issuer’s affairs. Although the SEC did not charge Titan with violating the antifraud and proxy provisions, the SEC made it clear that, in the future, it may take enforcement action against companies that append such merger representations to a proxy or other SEC filing if the statements contained in the representation are false or made recklessly.
Important Lessons from Titan
- Violations of FCPA may affect other corporate activities including merger discussions. The prosecution of Titan and the large penalty imposed on it should be a reminder that the SEC and DOJ actively pursue FCPA violators. In addition, the scandal effectively killed a $2.2 billion buyout offer from Lockheed Martin. Accusations regarding FCPA violations can have a significant effect on unrelated corporate activities such as proposed mergers, stock offerings, or loan negotiations.
- Conduct due diligence. The SEC and the DOJ emphasized Titan’s lack of oversight of its foreign agents. In particular, Titan had not adequately investigated its agent in Benin before retaining him, and failed to ensure that the consulting services he was purportedly providing were actually being performed. Therefore, companies with foreign operations should conduct due diligence into the background of foreign agents and consultants before hiring them, and should monitor their activities.
- Adopt a FCPA Compliance program. The Titan case highlights the importance of having an FCPA compliance program. Titan was required to institute such a program as part of the guilty plea and settlement.
- FCPA Violations May Result in Debarment. Titan is a major government defense contractor and an exporter of goods and services that are subject to State Department regulation. Titan announced in connection with the DOJ plea and SEC settlement that it had reached an administrative agreement with the Department of the Navy pursuant to which it would neither be debarred nor suspended from Department of Defense contracts. The risk of such suspension or debarment is, however, a potentially significant consideration for companies who are major government contractors, and this risk represents all the more reason for companies vigorously to impose effective FCPA compliance controls.
- Be careful about disclosure in agreements filed with the SEC. The Titan case could be read as saying that every representation in any filed (i.e. material) agreement is disclosure to investors, and that failure to disclose any material exception is a potential violation of the antifraud provisions of the Exchange Act. However, Titan could also be read as applying only when a filed agreement is described in a proxy statement or other disclosure document, and as merely confirming that the failure to correct a materially inaccurate representation described or included in the disclosure document is unlawful. As a result of this uncertainty, there may be more instances of companies including general disclaimers on their filing of material agreements with the SEC, stating that investors should not rely on representations and warranties in such agreements as characterizations of the actual state of facts, and that these representations and warranties speak only as of the date of the agreement. An example of such a disclaimer can be found in a recent Form 8-K filed by Shopping.com.
For further information or questions on the FCPA or a FCPA compliance policy, please contact Louis Victorino at 202-218-0038.