CFPB and DOJ Announce Joint Settlement with Indirect Auto Lender over Alleged ECOA Violations

On February 2, the CFPB and the DOJ announced a joint enforcement action against an indirect auto lender for alleged violations of the Equal Credit Opportunity Act (ECOA) and implementing Regulation B. In April 2013, the CFPB and the DOJ began an investigation into the indirect auto lender’s compliance with the ECOA and found that its policies allowed for dealers to mark up a consumer’s interest rate on the retail installment contract above the established risk-based buy rate, known as “dealer markup.” The dealers received greater compensation from the indirect auto lender on loans with a higher interest rate. The DOJ and the CFPB determined that the respondent’s practice of allowing pricing discretion resulted in qualified African-American/Pacific Islander borrowers paying more than qualified white borrowers. To resolve the DOJ and the CFPB’s allegations, the respondent agreed to (i) reduce the amount by which loans can be marked up to only 1.25% above the established buy rate for auto loans with terms of five years or less, and 1% for loans with longer terms; (ii) pay at least $19.9 million in redress to borrowers affected by its finance practices from January 2011 to February 2, 2016, and up to $2 million more from the date of the action until it implements a new pricing and compensation structure, which must be in place by August 2016; and (iii) hire a settlement administrator to ensure that affected borrowers receive compensation.

These enforcement actions are the fourth in a series of joint CFPB and DOJ actions addressing fair lending risks in the indirect auto lending industry.

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Oil and Gas Company Files Lawsuit Against Drilling Partners Challenging Post-FCPA Settlement Reticence

On January 11, a Houston-based oil and gas company filed suit in the U.S. District Court for the Southern District of Texas against its drilling partners in the company’s Guinean operations. The company claims that the drilling partners have unjustly delayed performing the work called for by their operating agreement because of uncertainty over whether the government of Guinea would terminate its drilling agreement with the company in light of the FCPA investigation into the company. That investigation was resolved by a declination letter issued by DOJ in May 2015 and a settlement with the SEC in October 2015. (See previous InfoBytes coverage of that investigation here and here.) The company is seeking a ruling that the drilling partners are in violation of the operating agreement and an order forcing them to fulfill their obligations.

In a November 2015 SEC filing, the company reported a complete lack of operating revenue and warned that further delays in fulfilling requirements imposed by the government of Guinea could result in a loss of the company’s concession to drill in the country. This case illustrates the potential business risks posed by an FCPA investigation—even if it is resolved on relatively favorable terms.

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POSTED IN: Courts, International

Former Executive Sentenced for Conspiracy to Bribe Panamanian Government Officials

On December 16, the U.S. District Court for the Northern District of California sentenced a former regional director of a Pennsylvania-based software and technology company for his involvement in a conspiracy to bribe Panamanian government officials to obtain technology contracts. U.S. District Judge Charles R. Breyer sentenced Vicente Eduardo Garcia to 22 months in prison for his role in the bribery scheme. In August 2015, Garcia pleaded guilty to conspiracy to violate the FCPA, admitting that in 2009 he and others conspired to bribe two Panamanian government officials directly and a third official through an agent in order to obtain a contract to provide a Panamanian state agency with a technology upgrade package. Garcia and his co-conspirators used sham contracts and false invoices to conceal the bribes, and Garcia personally received over $85,000 for arranging the bribes. Garcia previously settled with the SEC and agreed to pay disgorgement of $85,965 plus prejudgment interest.

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Former Russian Government Official Sentenced For Nuclear Energy Conspiracy Involving FCPA Violations

On December 15, a former Russian government official, Vadim Mikerin, was sentenced to 48 months in prison for conspiracy to commit money laundering in connection with $2 million in bribe payments he accepted to award government contracts with a Russian state-owned nuclear energy corporation. U.S. District Judge Theodore D. Chuang of the District of Maryland also ordered Mikerin, who resides in Maryland, to forfeit $2.1 million. Between 2004 and October 2014, Mikerin received bribe payments intended to improperly influence him in his role as a key official at a subsidiary of a Russian state-owned nuclear energy corporation and to secure improper business advantages for U.S. companies that did business with the subsidiary. Mikerin admitted that, in connection with the FCPA violations, he conspired with others to transmit approximately $2,126,622 from the United States to shell company bank accounts in Cyprus, Latvia and Switzerland. Mikerin also admitted to using consulting agreements and code words to conceal the bribes. Two of Mikerin’s co-conspirators – Daren Condrey and Boris Rubizhevsky – also pleaded guilty to conspiracy charges and are awaiting sentencing.

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DOJ Announces Racketeering Indictment Alleging Money Laundering Schemes

On December 10, the DOJ announced three unsealed indictments of a total of 20 defendants in connection with various money laundering schemes. Fifteen of the defendants were arrested and taken into custody, while the remaining individuals are still being sought by authorities.

The first indictment alleges that the former president and CEO of an Orange County, California bank and five other individuals, as members of a narcotics trafficking and international money laundering organization, violated the Racketeer Influenced and Corrupt Organizations Act (RICO) by participating in schemes to launder drug proceeds. According to the DOJ, the former bank official used his position, insider knowledge, and connections to “promote and facilitate money laundering transactions involving members and associates of the enterprise.” The DOJ alleges that the six defendants (i) arranged to convert purported drug proceeds, in the form of cash provided by an undercover informant, into cashier’s checks made out to a company the informant claimed to own; (ii) proposed to an informant that the informant and his boss purchase a controlling interest in the Orange County bank to more easily facilitate money laundering operations; and (iii) proposed to set up a foundation in Liechtenstein to be used, in part, to launder the informant’s drug sale proceeds. Read more…

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Lawsuits Alleging Digital Barriers on Websites Continue

Recently, a legally blind plaintiff filed a class action complaint against a leading home improvement and construction products and services retailer alleging that the company violated state law and the American Disabilities Act (ADA) by denying blind individuals equal access to products, services, and opportunities offered on its website. Diaz v. Home Depot, Inc., No. 15-cv-09178 (S.D.N.Y. Nov. 20, 2015). The complaint asserts that the company’s website contains barriers that “make it impossible for blind users to even complete a transaction on the website . . . thus exclude[ing] the blind from the full and equal participation in the growing Internet economy that is increasingly a fundamental part of the common marketplace and daily living.” The complaint further alleges that the company chooses “to rely on an exclusively visual interface” despite having access to technology that could make the website more accessible, such as limiting the use of tables and javascript and making use of alternative text, descriptive links, and resizable text. The plaintiff seeks (i) a permanent injunction requiring the company to take the necessary steps to ensure its website fully complies with ADA requirements so that it is accessible and usable by blind individuals; and (ii) compensatory damages to the plaintiff and a proposed subclass of blind customers.

The lawsuit is one of a number filed in 2015 – including a November 6 complaint against the NBA – under the ADA against companies operating websites with alleged digital barriers preventing blind individuals from accessing the electronic marketplace. According to a DOJ statement regarding its regulatory plans, rulemaking initiatives regarding the accessibility of web information and services provided by public accommodations are not scheduled to be included in the agency’s long-term actions until fiscal years 2017 and 2018.

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Massachusetts-Based Imaging Company Discloses Settlement Offer to End FCPA Investigations

In a quarterly securities filing made on December 9, a Massachusetts-based manufacturer of airport security equipment, disclosed that the SEC and DOJ have made separate proposals to end their FCPA investigations into the company that would include payments totaling approximately $15 million. The company had previously announced in a September 2015 press release that it had offered the SEC $1.6 million to settle the SEC’s FCPA investigation of the company. The company’s 10-Q disclosed that the SEC rejected that offer. The company stated that it remains in discussion with the SEC and DOJ about settlement and is also discussing a settlement with the Danish government concerning a resolution of these matters.

The company previously reported that the DOJ and SEC had “substantially” completed their investigations of potential bribery involving transactions by the company’s Danish subsidiary. The transactions at issue involved distributors paying the subsidiary more than was owed, and the subsidiary then allegedly transferring the excess money to third parties identified by the distributors. At the time of its 2011 disclosure of the potentially problematic transactions, the company stated that it had not ascertained the ultimate beneficiaries or purpose of the transfers.

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DOJ Announces Sentencing of Former Secret Service Agent for Involvement in Silk Road Investigation

On December 7, the DOJ announced that a former Secret Service agent was sentenced to 71 months in prison on charges of money laundering and obstruction of justice. Between 2012 and 2014, the former agent conducted forensic computer investigations from the Northern District of California to locate, identify, and prosecute persons involved in operating Silk Road, a covert online marketplace for illicit goods, as part of the Baltimore Silk Road Task Force. As part of his guilty plea, the agent admitted to using account information from a January 2013 search and arrest of a Silk Road customer support representative to “reset passwords and pins of various accounts on Silk Road and move approximately 20,000 bitcoin, at the time worth approximately $350,000, from those accounts into a bitcoin ‘wallet’ [he] controlled.” The former agent also admitted to (i) moving stolen bitcoin money into an account on a Japan-based online digital currency exchange; (ii) liquidating the bitcoin into $820,000 in U.S. currency and transferring those funds into a personal investment account in the U.S.; (iii) using the customer support representative’s access to Silk Road to steal bitcoin, which limited the investigation of Silk Road; and (iv) making false and misleading statements to both prosecutors and investigators involved in the San Francisco grand jury investigation into his activity. In addition to the prison sentence, the court ordered the former agent to forfeit more than $650,000. The Secret Service agent is the second federal agent to be sentenced this year in connection with the Baltimore Silk Road Task Force’s investigation into the Silk Road.

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Former New York-Based Broker-Dealer Executives Sentenced to Two Years in Prison

Two former executives of a now-defunct New York-based broker-dealer were each sentenced to two years in prison for their roles in a bribery scheme involving a Venezuela’s state-owned economic development bank. On December 8, Tomas Clarke, the former Miami-based senior vice president of the broker-dealer, was sentenced to two years in prison and ordered to forfeit nearly $5.8 million for his role. On December 4, Ernesto Lujan, the former managing partner at the broker-dealer’s Miami office, was sentenced to two years in prison and ordered to forfeit $18.5 million. The pair pleaded guilty in August 2013 in the U.S. District Court for the Southern District of New York to conspiracy to violate the FCPA, the Travel Act, and to commit money laundering, as well as substantive counts of these offenses. Read more…

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DOJ Charges 16 Additional Individuals with FIFA-Related Corruption; Swiss Authorities Arrest Two High-Ranking FIFA Members

On December 3, the DOJ charged an additional 16 individuals in connection with its ongoing corruption investigation into FIFA. The new indictment included a number of high ranking FIFA members, including Alfredo Hawit, the president of the Confederation of North, Central America and Caribbean Association Football (CONCACAF) and vice-president of FIFA, and Juan Angel Napout, the president of the South American Football Confederation (CONMEBOL) and a member of the FIFA executive committee. Both of these individuals were arrested by Swiss authorities in Zurich and are opposing extradition to the United States.

With the additional 16 individuals, a total of 41 people and entities have been charged as part of the DOJ’s ongoing investigation.

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Mortgage Company Resolves DOJ Allegations of False Claims Act Violations

On December 2, a Tennessee mortgage company agreed to pay the United States $70 million to resolve allegations that it violated the False Claims Act. According to the DOJ, the company, acting as a direct endorsement lender, knowingly originated and accepted FHA-insured mortgage loans that did not meet applicable HUD underwriting and quality control requirements. As part of the settlement agreement, the company admitted to engaging in the following conduct between January 1, 2006 and March 31, 2012: (i) employing unqualified junior underwriters to complete important underwriting tasks; (ii) setting high quotas for underwriters and disciplining them if the quotas were not met; and (iii) offering underwriters bonuses based in part on the number of loan files reviewed as incentive to increase loan production. Even though deficiencies in the loan underwriting process were identified in post-close audits, the company did not make any self-reports until 2009 and, even then, “[v]ery few of these self-reported loans were reported for containing serious underwriting deficiencies.” As a result of the company’s conduct, the FHA insured loans that were not eligible, purportedly suffering “substantial losses when it later paid insurance claims on those loans.”

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DOJ Announces Mortgage Lending Discrimination Charges Against Massachusetts Bank

On November 30, the DOJ announced the filing of a complaint and proposed consent order against a Massachusetts-based bank alleged to have violated the Fair Housing Act (FHA) and the Equal Credit Opportunity Act (ECOA) by charging African-American and Hispanic borrowers higher prices for home loans than similarly situated white borrowers. From 2011 until at least 2014, the bank allegedly used a “target pricing” mortgage origination policy, assigning loan officers with a Minimum Base Price (MBP) they were expected to achieve on each home loan without regard to the borrower’s creditworthiness. According to the DOJ’s complaint, “African-American and Hispanic borrowers were served disproportionately by loan officers with higher MBPs than the loan officers serving white borrowers.” The complaint further alleges that, from April 2011 through December 2013, the bank authorized loan officers to price a loan higher than their assigned MBP, without documenting the reasons for doing so. Pending court approval, the DOJ’s proposed consent order will require the bank to (i) pay $1,175,000 as compensation to borrowers affected by its practices; (ii) establish a new loan pricing policy and a new loan officer compensation policy; (iii) provide fair lending and fair housing training to loan officers and bank employees; and (iv) establish a monitoring program designed to, at a minimum, assess loan pricing disparities.

In May 2013, the FDIC conducted a consumer compliance examination of the bank and found reason to believe that its lending practices violated the FHA and ECOA, prompting the agency to refer the matter to the DOJ on February 7, 2014.

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UK Serious Fraud Office Issues First Deferred Prosecution Agreement with Johannesburg-based Financial Group

On November 30, the United Kingdom’s Serious Fraud Office (SFO), working with the DOJ and SEC, entered into a deferred prosecution agreement (DPA) with a Johannesburg-based financial group under the U.K.’s Bribery Act of 2010 regarding payments by two former employees that were allegedly made to bribe members of the Tanzanian government. The DPA represents the SFO’s first-ever DPA and the first use of Section 7 of the Bribery Act, failure of commercial organizations to prevent bribery, by any U.K. prosecutor. As part of this DPA, the financial group agreed to pay a combined $32.2 million in sanctions to the U.K. and Tanzania, and to cover the SFO’s litigation and investigation costs. The DPA also requires the financial group’s continued cooperation with authorities and the implementation of certain recommendations from its independent compliance consultants. Read more…

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Deputy Attorney General Yates Expands on DOJ’s White-Collar Prosecution Policy

On November 16, the DOJ’s Deputy AG Sally Yates delivered remarks at the American Bankers Association and American Bar Association Money Laundering Enforcement Conference. Yates focused her remarks on recent revisions – originally outlined in a September 9 policy memorandum – to the United States Attorney’s Manual (USAM), as follows: (i) updating the corporate criminal cases section, specifically the “Principles of Federal Prosecution of Business Organizations” chapter, or the “Filip factors”; (ii) implementing an entirely new section to the civil cases chapter on enforcing claims against individuals in corporate matters; and (iii) updating its policy on parallel proceedings. First, the DOJ updated the Filip factors and the written guidance accompanying the factors to emphasize individual accountability in corporate cases and company cooperation in the DOJ’s investigation of individual wrongdoing. Yates highlighted the following policy change: “In the past, cooperation credit was a sliding scale of sorts and companies could still receive at least some credit for cooperation, even if they failed to fully disclose all facts about individuals. That’s changed now… providing complete information about individuals’ involvement in wrongdoing is a threshold hurdle that must be crossed before [the DOJ will] consider any cooperation credit.” Read more…

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DOJ Settles with For-Profit Education Company Over Alleged FCA Violations

On November 16, the DOJ announced a $95.5 million settlement with the country’s second-largest for-profit education company to resolve alleged federal and state violations of the False Claims Act (FCA). According to the DOJ’s complaint, the company’s admissions personnel received payment based on the number of students they enrolled, a violation of Title IV of the Higher Education Act’s (HEA) Incentive Compensation Ban (ICB) and the Regulatory Safe Harbor. The DOJ alleges that the company misrepresented its compliance with Title IV of the HEA to the Department of Education by certifying in Program Participation Agreements that it had not “paid to any persons or entities any commission, bonus, or other incentive payment based directly or indirectly on success in securing enrollments, financial aid to students, or student retention.” The Department of Education calculated that, from July 1, 2003 through June 30, 2011, the company, having submitted “a variety of claims to the government for Title IV funding that it [knew] to be false based upon its non-compliance” with the ICB, received more than $11 billion in government funding. Under the terms of the settlement, the $95.5 million will be divided among the United States, the co-plaintiff states, and the whistleblowers and their counsel in the FCA cases filed separately in federal court in Pittsburgh, Pennsylvania and Nashville, Tennessee.

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