Moe Green died again yesterday but this time he was not shot through the glasses, it was from cancer and the fictional Las Vegas mobster lived to the ripe old age of 79. Of course I am referring to “Alex Rocco, the veteran tough-guy character actor with the gravelly voice best known for playing mobster and Las Vegas casino owner Moe Greene in The Godfather”. As reported in the Hollywood Reporter, Jeffrey Dean Morgan was quoted as saying, “For those of us lucky enough to get to know Rocco, we were blessed”; “He gave the best advice, told the best and dirtiest jokes and was the first to give you a hug and kiss when it was needed. To know Roc was to love Roc. He will be missed greatly.” But it was his scream of the line, “I buy you out, you don’t buy me out!” in response to a buyout offer from Michael Corleone for which Rocco may well best be remembered in an almost 60 year acting career.

Rocco’s death and Green’s line about offers and counter-offers, with attendant promises to pay, with your life or otherwise, inform today’s blog post. Compliance practitioners will recognize that payments of bribes to foreign government officials, officials of state-owned enterprises, and certain others are illegal under the Foreign Corrupt Practices Act (FCPA), which reads, in relevant part, that: “It shall be unlawful for any issuer which has a class of securities registered pursuant to section 78l of this title or which is required to file reports under section 78o(d) of this title, or for any officer, director, employee, or agent of such issuer or any stockholder thereof acting on behalf of such issuer, to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to…”

The above is the operative prohibition from the FCPA and its violation can lead up criminal sanctions. However, most Chief Compliance Officers (CCOs), compliance practitioners and those practicing in the FCPA space have focused on all of the language except the words promise to pay. The reason would seem straightforward; not until a bribe has been paid would there be evidence sufficient to uphold sanctions under the FCPA. Yet, just as the Rosetta Stone revealed a new source of information long lost to the world, a promise to pay under the FCPA can have just as serious consequences for companies or individuals.

I thought of these issues when I read a recent article in the New York Times (NYT), entitled “Scandal Casts Shadow on Private Equity Firm’s Quest for a Bargain”, by frequent contributor Steven Davidoff Solomon. In his article, Solomon detailed a transaction by “Cerberus Capital Management, the private equity firm headed by Stephen A. Feinberg, acquired the agency’s Northern Ireland loan portfolio, which had a face value of 4.5 billion pounds (currently about $7 billion), for £1.3 billion in April 2014.”

The FCPA angle came into play because a law firm engaged by Cerberus, Northern Ireland’s Tughans, disclosed “that it had discovered that Mr. Coulter [the now former Managing Partner of Tughans] had diverted the £7 million in professional fees owed to the firm to an account in his name without the knowledge of his partners.” Further, a member of the Republic of Ireland’s parliament, Mick Wallace, “contended that £7 million was put in an offshore bank account on the Isle of Man to pay off an unidentified Irish politician or political party in connection with the Cerberus deal.” Before the money could disappear from the Isle of Man bank account Tughans retrieved it and the firm “parted ways with Mr. Coulter.” Solomon noted that at this time, “no politician has been identified as the potential beneficiary of the £7 million, though speculation is rampant. Police in Northern Ireland have opened a criminal investigation.”

According to Solomon, “Cerberus pointed out in a statement that it has not been accused of any wrongdoing and that it has “zero tolerance for inappropriate or unethical activities. We insist on the same high standards of conduct from our advisers,” it added. “In this matter, as is our standard business practice, we codified these expectations in our engagement letters with our outside advisers so that there was no room for interpretation.” It said it had received assurances from both law firms that they were in compliance with all laws and regulations.”

Henry McDonald, reporting in a The Guardian entitled “Lawyer denies bribery claim over £1bn Irish property sale”, wrote that former Tughans Managing Partner Coulter said, “denied that he or any politician had benefited financially. “The fees payable were paid into a Tughans company account supervised by the firm’s finance team,” he said. “In September 2014, a portion of the fees was retained by Tughans and I instructed Tughans’ finance director to transfer the remaining portion into an external account which was controlled only by me. Not a penny of this money was touched.” Coulter added this rather amazing statement, released through his PR firm, “he had directed the transfer of money for “a complex, commercially and legally sensitive” reason.”

If someone wanted to give a FCPA exam question, where the students had to spot the FCPA issues, this one would probably be about as good as you could dream up. But to think that a law firm’s fee would be put into a bank account in a well-known location which raises as many Red Flags as the Isle of Man, seems stretching things a bit too far. McDonald also reported that the Tughans firm “had passed all documentation relating to this to the Law Society of Northern Ireland. “The firm voluntarily brought the matter to the attention of the Law Society and will continue to cooperate with any inquiry,” it said.” He also noted that Northern Ireland officials had “called in the UK’s National Crime Agency to investigate allegations of bribery and corruption relating to the property deal.”

So what if there had been a promise to pay a bribe, but one was never paid because the money was no longer available in a separate bank account? Under the FCPA, a promise to pay is viewed with equal suspicion as the payment of a bribe. Cerberus is clearly a US entity, so the FCPA would apply. The firm’s expectations of law firms compliance with the FCPA, written into their engagement letter, coupled with the “assurances” the company received from its law firms that it was in compliance with all laws and regulations could protect the firm in a FCPA investigation. But we do have at least one person, Irish Parliament member Mick Wallace, saying the money was put into the Isle of Man bank account to pay off an Irish politician or political party. If there was a promise to pay, the result under the FCPA could be the same as if there was an illegal payment.

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