On this day, 203 years ago, President James Madison signed a Declaration of War against Great Britain inaugurating the War of 1812. The cause of the war was multi-faceted; the formal reason given was the British impressment of American sailors and the economic blockade of Europe. But the real reason may have simply been the warmongers who had been agitating for war against Britain for several years as an excuse to attack (and hopefully take over) Canada. For those of you who did not study geography too closely, that latter hope was forlorn as Canadians twice repulsed American invasions during the war.
That does not mean the War of 1812 was ultimately unsuccessful for the ‘War Hawks’. America got two great songs out of the war. The first was our National Anthem, the Star Spangled Banner, which celebrated victory over the British at Baltimore. The second was the top hit single of 1959, The Battle of New Orleans, which celebrated Andrew Jackson’s defeat of the British in the Battle of New Orleans, which was fought after the signing of the peace treaty that ended the war. Also that peace treaty, which America and Great Britain signed has remained unbroken to this day.
I thought about this view of the results of the War of 1812 when I read the Foreign Corrupt Practices Act (FCPA) enforcement action involving IAP Worldwide Services, Inc. (“IAP” or “the company”) and its former Vice President (VP), James Rama. The company received a Non-Prosecution Agreement (NPA) as a result of the enforcement action but agreed to a fine of $7.1MM. Rama pled guilty to a single count of conspiracy to violate the FCPA and is awaiting sentencing but his sentence will be capped out at “five years of imprisonment, a fine of the greater of $250,000 or twice the gross gain or loss, full restitution, a special assessment, and three years of supervised release” according to his Plea Agreement.
What it is difficult to determine from the company NPA and Rama Plea Agreement is what conduct the company engaged in which led to the NPA because clearly both the company and Rama engaged in conduct that violated the FCPA. In its Press Release the Department of Justice (DOJ) said, “Based on a variety of factors, including but not limited to IAP’s cooperation, the Criminal Division entered into a non-prosecution agreement with the company.” In the NPA these factors were given some meat with the following boilerplate language, “(a) the Company has cooperated with the Offices, including conducting an extensive internal investigation, voluntarily making U.S. and foreign employees available for interviews, and collecting, analyzing, and organizing voluminous evidence and information for the Offices; (b) the Company has engaged in remediation, including disciplining the officers and employees responsible for the corrupt payments or terminating their employment, enhancing its due diligence protocol for third-party agents and consultants, and instituting heightened review of proposals and other transactional documents for relevant Company contracts; (c) the Company has committed to continue to enhance its compliance program and internal controls, including ensuring that its compliance program satisfies the minimum elements set forth in Attachment C to this Agreement; and (d) the Company has agreed to continue to cooperate with the Offices in any ongoing investigation of the conduct of the Company and its officers, directors, employees, agents, and consultants relating to possible violations under investigation by the Offices.”
Since I cannot determine from beyond the above description what the company did to achieve its NPA, I will use the same analysis that I did in ascertaining what we Americans got out of the War of 1812. For the NPA did go into detail about the bribery scheme used by the company and Rama, which were clearly violative of the FCPA. Rama was a VP of the company until he signed and became an independent contractor to the organization, through his consulting entity, Ramaco. Ramaco was created, in part, to hide the involvement of IAP in the bidding process with the Kuwaiti Ministry of the Interior to provide nationwide surveillance for the country.
The bid for this project had two phases. In Phase I, a consultant would assist the Kuwaiti government to select the final contractor who would implement the nationwide surveillance for the country in Phase II. By hiding its involvement through Ramaco, IAP could reap the benefits of winning both phases, which it did. However the illegals acts of IAP and Ramaco did not end with this subterfuge but were in fact just beginning.
The Phase I contract awarded to Ramaco was worth $4MM. IAP and Ramaco agreed to rebate one-half of the amount, through a Kuwaiti third party agent back to certain representatives of the Kuwaiti government as bribe payments. In addition to this 50% figure of the contract price, IAP and Ramaco understood that this Kuwaiti third party contractor would “inflate its invoices to IAP by charging IAP for the total amount of both the legitimate services that Kuwaiti Company was providing and the payments that Kuwaiti Company was funneling to Kuwaiti Consultant without listing or otherwise disclosing the payments that were funneled to Kuwaiti Consultant.” According to the NPA, these monies were specifically “provided as bribes to Kuwaiti government officials to assist IAP in obtaining and retaining the KSP Phase I contract and to obtain the Phase II contract.”
The NPA also specified meetings which were held in the company’s headquarters in Arlington VA and that monies to be paid as bribes were wired out of a company bank account in the US to Kuwait.
All of these facts would lead me to opine that this case was egregious. There was a US company, setting up a scheme to pay bribes through both a US person, who was a former employee, and a foreign third party agent. Meetings to facilitate the scheme were held in the US and monies to fund bribes were wired out of a US bank account. There was nothing reported in the NPA which indicated that the company self-disclosed this FCPA violation. While there were statements of cooperation and remediation going forward, there was nothing other than the standard boilerplate language generally seen in NPAs.
So while the NPA does provide the Chief Compliance Officer (CCO) or compliance practitioner a good set of facts to test against in their organization, that would appear to be about it. Other than, of course, it is always better to cooperate than not. So much like what we Americans got out of the War of 1812, not much substance can be ascertained from the company’s NPA and Rama’s Plea Agreement.
For a YouTube clip of Johnny Horton singing The Battle of New Orleans, on the Ed Sullivan Show, click here.
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