ALCANTEL-LUCENT SETTLES FCPA CASES
The Department of Justice and the SEC settled FCPA cases with Alcantel-Lucent S.A., a company formed in a November 30, 2006 merger involving Paris, France based Alcantel, S.A. and U.S. based Lucent Technologies, Inc. U.S. v. Alcatel-Lucent S.A., (S.D. Fla. Dec. 27, 2010); U.S. v. Alcatel-Lucent France S.A., (S.D.F.a. Dec. 27, 2010); SEC v. Alcatel-Lucent, S.A., Case No. 1:10-cv-24620 (S.D. Fla. Dec. 27, 2010). The cases allege violations of the anti-bribery, books and records and internal control provisions of the FCPA between December 2001 and June 2006. Until November 30, 2006, Alcatel’s ADRs were registered with the Commission and traded in New York.
Prior to the 2006 merger Alcatel, a French telecommunications equipment and services company, conducted much of its business through subsidiaries. Those subsidiaries in turn retained local business agents who helped the company secure business. Using this business model, the company paid bribes in Costa Rica, Honduras, Malaysia and Taiwan. It also violated the internal control provisions of the FCPA related to hiring third party agents in Kenya, Nigeria, Bangladesh, Ecuador, Nicaragua, Angola, Ivory Coast, Uganda and Mali.
Specifically, during the time period, the court filings stated that:
• In Costa Rica, Alcatel CIT (now known as Alcatel-Lucent France S.A.) obtained three contracts worth more than $300 million which yielded profits of over $23 million. About $18 million was paid to two consultants retained by Alcatel Standard A.G. (now known as Alcatel-Lucent Trade International A.G.). About half of that sum was passed to government officials. Phony invoices were used to conceal the scheme.
• In Honduras, Alcatel CIT was able to retain contracts worth about $47 million which yielded profits of about $870,000. Those contacts resulted from payments made to a local consultant who was personally selected by the brother of a senior Honduran government official. Significant portions of the payments made to the consultant, a perfume distributor with no experience in the telecommunications business, went to government officials.
• In Malaysia, bribes were paid through agents to obtain or retain a telecommunications contract valued at about $85 million.
• In Taiwan, Alcatel Standard retained two consultants on behalf of another subsidiary in Taiwan to assist in obtaining an axle counting contract worth about $19.2 million. The two consultants were paid about $950,000 despite the fact that neither had telecommunications experience. The consultants were retained so that Alcatel SEL A.G. (now known as Alcatel-Lucent Deutschland A.G.) could funnel payments through them to Taiwanese legislators to influence the award of the contract which yielded profits of about $4.34 million.
All of these payments were improperly recorded in the books and records of the subsidiaries and the parent company. This resulted, according to the court papers, from a lax system of internal controls.
To settle with DOJ, the parent company entered into a deferred prosecution agreement. The two count information charged violations of the FCPA internal controls and books and records provisions. Under the terms of the agreement, the company will pay a $92 million criminal fine and a monitor will be installed for three years. In addition, subsidiaries Alcatel-Lucent France S.A., Alcatel-Lucent Trade International A.G., and Alcatel Centroamerica S.A. (formerly known as Alcatel de Costa Rica S.A.) each agreed to plead guilty to a one count information charging conspiracy to violate the anti-bribery, books and records and internal control provisions of the FCPA.
The parent company settled with the SEC by consenting to the entry of a permanent injunction prohibiting future violations of Exchange Act Sections 30A, 13(b)(2)(A), 13(b)(2)(b) and 13(b)(5). The company also agreed to pay disgorgement of $45.372 million and to comply with its undertakings including the appointment of an independent monitor for three years.
According to DOJ, the settlement reflects the cooperation of the company after the merger. Prior to the merger there was “limited and inadequate” cooperation. Following the merger, cooperation improved significantly. In addition, the company on its own initiative and at substantial cost undertook an “unprecedented pledge” to alter its business model and stop using third-party sales and marketing agents in its world wide business.
Previously, two former Alcatel executives were charged with FCPA violations. One, Christian Sapsizian, a French citizen and Alcatel CIT executive, pleaded guilty to FCPA violations and was sentenced to 30 months in prison in September 2008. Edgar Valverde Acosta, a citizen of Costa Rica and former president of Alcatel de Costa Rica, has not been arrested. In January 2010, Alcatel-Lucent agreed to pay $10 million to settle a corruption case brought by the government of Costa Rica based out of the bribery of government officials. The case is the first in Costa Rica’s history in which a foreign corporation paid damages to the government for corruption.