September 15, 2011

Marsha Z. GerberFulbright & Jaworski L.L.P.

What You Don't Know Can Hurt You:  Red Flags in International

Real Estate Transactions

When You Think COMPLIANCE,Think Fulbright.TM

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Agenda Foreign Corrupt Practices Act (“FCPA”) Recent FCPA Investigations Involving Or With Potential

Nexus to Commercial Real Estate Industry FCPA Elements Potentially Permissible Payments Books and Records Recent Enforcement Trends Key Compliance Issues Risk Mitigation Strategies

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FCPA

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FCPA Enacted in 1977 following a SEC investigation that

uncovered hundreds of U.S. companies made improper payments to foreign officials

Two components● Anti-bribery provisions that prohibit payments or offers or

authorizations of payments of “anything of value” to foreign officials to obtain business or business advantages

● Accounting and internal controls provisions that require U.S. public companies to maintain good records and internal controls

Civil and criminal liability for companies and individuals Enforced by SEC and DOJ

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Why Is the FCPA Important To the Commercial Real Estate Industry?

Recent enforcement activities and public pronouncements indicate that enforcement agencies are scrutinizing industries as a whole.

More companies in virtually every U.S. industry have increased international elements to their business operations.

The international links are not always immediately apparent: one example is sovereign wealth fund investments in commercial real estate.

Historically, the commercial real-estate industry was considered to be a relatively low risk industry for anti-corruption scrutiny.

Recent enforcement activity suggests that risk of FCPA enforcement activities in the real estate industry .are becoming more frequent.

The newly enacted UK Bribery Act extends the reach of anti-corruption regulation to companies that the FCPA may not reach.

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FCPA

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FCPA Enacted in 1977 following a SEC investigation that

uncovered hundreds of U.S. companies made improper payments to foreign officials

Two components● Anti-bribery provisions that prohibit payments or offers or

authorizations of payments of “anything of value” to foreign officials to obtain business or business advantages

● Accounting and internal controls provisions that require U.S. public companies to maintain good records and internal controls

Civil and criminal liability for companies and individuals Enforced by SEC and DOJ

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Recent FCPA Investigations

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Recent FCPA Investigations Morgan Stanley (pending)

● In 2009, Morgan Stanley announced that it had recently uncovered actions initiated by an employee based in China in an overseas real estate subsidiary that appeared to violate the FCPA. Morgan Stanley terminated the employee’s employment, reported the activities to authorities and is continuing to investigate the matter.

● As reported in an anti-corruption blog in June 2011, the investigation is ongoing according to Morgan Stanley’s lawyers who report that they continue to “represent Morgan Stanley in connection with a publicly disclosed internal investigation into potential FCPA violations in China.”

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Recent FCPA Investigations Goldman Sachs (pending)

● According to the Wall Street Journal, the SEC is investigating whether Goldman Sachs and other financial firms violated anti-corruption laws in dealings with Libya’s sovereign-wealth fund.

● The SEC is reportedly reviewing documents that detail the Goldman Sachs’ relationships with the Libyan Investment Authority, which was controlled by Moammar Gadhafi.

● Among other things, SEC officials reportedly are interested in a $50 million fee that Goldman agreed to pay the Libyan sovereign-wealth fund as part of a proposal by the bank to help the fund recoup losses. It is alleged that the Libyan Investment Authority would have passed on the $50 million payment to an outside adviser, Palladyne International Asset Management, which was run at the time by the son-in-law of the head of Libya’s state-owned oil company.

● The $50 million payment was never made because discussions between Goldman and the sovereign-wealth fund stalled before violence erupted in Libya in February.

● The investigation is ongoing since an agreement itself to make a prohibited payment can be a violation of the FCPA, even if the payment is not made.

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Recent FCPA Investigations

CB Richard Ellis (pending)● In 2010, CB Richard Ellis (“CBRE”) voluntarily disclosed to the SEC and

DOJ that some of its employees in China made payments in violation of Company policy to local governmental officials, including payments for non-business entertainment and in the form of gifts, and that it was conducting an internal investigation of such payments.

● Additionally, in the third quarter of 2010, CBRE began another internal investigation, involving the use of a third party agent in connection with a purchase in 2008 of an investment property in China for one of the funds.

● In March 2011, CBRE reported in its 10-K US filing that it had concluded its investigation into the issues regarding payments made by certain China employees and that the DOJ and SEC closed their review without any action. The press release does not indicate whether the second investigation has been closed.

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FCPA Elements

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FCPA Elements

Five Elements of an FCPA Violation

● Regulated person

● Payment or offer

● Covered recipient

● Corrupt intent

● Improper purpose

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Who is a Regulated Person?

First Element: Regulated Person● “Domestic concerns”

Any individual who is a citizen, national, or resident of the U.S. Any entity having a principal place of business in the U.S. or

organized under the laws of the U.S.● “Issuers”

Companies that have securities registered in the U.S. or that are required to file periodic reports with the SEC

Need not be publicly traded to meet this criteria● Other persons

Any person in the U.S. Agents or other representatives of Regulated Persons

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Regulated Persons in Practice FCPA can apply to any company, director, officer, employee,

agent, or other individual who violates or aids in violating the FCPA

U.S.-based individuals and companies can be held liable for acts wherever they occur (in the U.S. and abroad)

U.S. parent can be liable for authorizing or directing foreign subsidiary, or foreign agents, representatives, or other third parties to violate the FCPA

Foreign individuals and companies can be held liable for acts occurring in the United States

All are interpreted by enforcement agencies very broadly

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Regulated Persons: Examples

British citizen working on a U.S. company’s behalf meets in London with an officer of a sovereign wealth fund regarding in a commercial real estate venture

U.S. citizen employee of a U.S. company has business discussions regarding a commercial real estate development with a Saudi Arabian prince

Chinese national working in China as employee or agent of non-U.S. subsidiary of U.S. company sends e-mail invoice to U.S. parent company for services provided

Again, the term has been defined broadly by the enforcement agencies

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What Constitutes a Payment?

Second Element: Payment● Payment of money or anything of value● Offer or promise of anything of value● Gift, entertainment, charitable contribution, or donation● In-kind service, e.g., providing a free service

Regulated persons can also be liable under the FCPA for acts in furtherance of payments, including disguising or mischaracterizing payments in a Company’s accounting records.

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Who is a Covered Recipient? Third Element: Covered Recipient

● Foreign official, i.e., any officer or employee of: Any non-U.S. government, whether national, state, provincial, local,

tribal, or other Any department, instrumentality, or agency of a non-U.S. government A foreign state-owned/controlled entity (e.g., a sovereign wealth fund or

other state-controlled utility) Any public international organization (e.g., UNESCO) Any person acting in any official capacity for one of the above

● Any non-U.S. political party● Candidates for foreign political office● Any other person with knowledge that the payment or any part thereof will be

used in violation of the FCPA

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Foreign Officials-Examples

Potentially, member of the royal family of a non-U.S. country

A secretary in the Japanese Ministry of Industry Teller at the Bank of China branch in New York City A U.N. procurement officer This element is broadly defined

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What Constitutes Corrupt Intent?

Fourth Element: Corrupt Intent● Intent to induce the Covered Recipient to misuse his/her/its

official power ● An attempt counts: an offer or promise of a corrupt payment to

a Covered Recipient, even if never made, can be a violation● Intent to make the payment is relevant, not intent to violate the

FCPA● Lack of knowledge of the FCPA is not a defense

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What is a Business Purpose? Fifth Element: Business Purpose

● The business purpose test is met if the payment is related to a specific business purpose: Obtaining business Retaining business Directing business to any person Obtaining an unfair advantage

● Covers illicit payments to assist in obtaining or retaining business even indirectly, such as reducing taxes, which in turn lower a company’s overall expenses in a particular marketU.S. v. Kay (5th Cir. 2004, 2007)

● Applies to any business, not limited to business with government customers Payment to government official to ensure a transaction between a

private company and another private company will receive necessary approvals

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Permissible Payments

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Permissible Payments Under the FCPA

Two Limited Affirmative Defenses:● Payments that are lawful under the foreign country’s

written laws, and ● Payment is a “reasonable and bona fide expenditure” to

demonstrate or promote a product or execute a contract: Must be “directly related” to

demonstration/promotion of goods/services or execution/performance of a company’s facilities and

Sponsorship of attendance at legitimate company training programs

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Permissible Payments - What is Reasonable and Bona Fide?

Reasonable: Reasonableness is fact-dependent:● Airline tickets, hotel accommodations, and entertainment

expenses may be reasonable● Generally not considered reasonable to pay airfare for

Foreign Official’s spouse to travel Bona Fide

● Paying reasonable hotel accommodations for a Foreign Official based on a legitimate receipt is bona fide

● Paying a hotel bill for a Foreign Official based on his statement that he stayed there when you know he stayed elsewhere is not bona fide

Documentation is key

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Potentially Permissible Payments - Facilitating Payments

Payments to facilitate “routine governmental actions,” sometimes known as “expediting payments” are currently acceptable under the FCPA although there has been recent movement by certain companies away from allowing such payments. Further, such indicators as OECD guidance and the new UK Bribery Act suggest that in the future there may be a U.S. legislative move away from facilitating payments.

A “routine governmental action” is non-discretionary Payment must be small Most local laws prohibit facilitating payments as does the new U.K. Bribery Act,

which also could apply to some global commercial real estate ventures “Routine governmental action” does not include decisions on:

● Awarding new business● Continuing to do business● Conditions under which to do business● Some companies prohibit all facilitating payments or require pre-approval. Consult with

your legal department to determine if facilitating payments are permitted or if preapproval is required.

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Potentially Permissible Payments - Facilitating Payments

Examples according to the Department of Justice:● Obtaining copies of permits, licenses, official documents

● Processing governmental papers (e.g., visas)

● Providing police protection

● Delivering mail

● Providing utilities (phones, power, water)

● Scheduling inspections

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Gifts & Entertainment Gifts and entertainment to Foreign Officials fall within scope of the FCPA This includes meals, entertainment, and nominal, socially customary gifts There is no de minimis threshold – even a $1 or $2 gift is subject to the

FCPA Giving small gifts or reasonable and bona fide entertainment may be

permissible (consult with legal to determine any pre-approval requirements) if:

● Permissible under the written laws of the country● Reasonable and bona fide expenditure in connection with promotion of a

product or service or the execution of a contract● Small token consistent under local custom ● Not for a “corrupt” purpose:

Not for obtaining or retaining specific business opportunity Not for directing specific business opportunity to another

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UK Bribery Act

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UK Bribery Act 2010 The UK Bribery Act 2010 came into force July 1, 2011 and is, in several respects, broader than

the FCPA. The UK Bribery Act:

● Prohibits offering/giving and requesting/receiving a financial or other “advantage”;

● Applies to government officials and private sector persons;

● Prohibits facilitating payments;

● No specific exception for corporate hospitality; and

● Creates liability for companies that fail to prevent bribery;

● Unlimited fines.

Broad jurisdiction - Act applies to both U.K. and foreign companies with nexus to the U.K., even if offenses take place in a third country and are unrelated to U.K. operations (e.g., U.S. company has a U.K. branch and engages in bribery in Asia, that U.S. company may have liability under the Bribery Act).

As a result of its broad jurisdiction reach and more stringent requirements, including commercial bribery, the UK Bribery Act has serious implications for the real estate industry.

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Books and Records

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FCPA: Books and Records Requirements

Applies to “issuers”; registered on U.S. exchange or required to make certain regular reports

Accurate record keeping and effective internal controls is key to compliance for any company

Requirement is to:● Make and keep books, records and accounts which, in reasonable

detail, accurately and fairly reflect the transactions and dispositions of the company

● Devise and maintain systems of internal accounting controls that provide reasonable assurances that management has proper control over transactions

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Books and Records (cont.)

What does books and records compliance mean in practice?

Maintaining robust anti-corruption compliance policies Maintaining effective internal controls and taking reasonable

steps to ensure affiliates maintain appropriate internal controls Recording all transactions accurately and transparently Retaining receipts and other support for transactions Records should be made and kept consistent with overall

document retention and record-keeping policies

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Recent Enforcement Trends

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Recent Enforcement Trends

Top enforcement priority and increased resources● Significant growth in both the number of FCPA reported

enforcement actions and the size of the penalties imposed● Dedicated Department of Justice (“DOJ”) and Securities

and Exchange Commission (“SEC”) FCPA teams Increase in industry-wide investigations and proactive

enforcement techniques Large penalties Individual liability Increased international enforcement and cooperation

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Recent Enforcement Trends (cont.) Increased use of industry-wide investigations and growth

in the number of industries under scrutiny Some industries recently under review include:

● Financial services Sovereign wealth funds

● Commercial Real Estate (e.g., Morgan Stanley and C.B. Richard Ellis)

● Oil & gas● Medical devices & pharmaceuticals● Insurance● Construction & engineering● Computer & information technology

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Recent Enforcement Trends (cont.) More proactive enforcement techniques

● SEC and DOJ are sending letters to industry participants following voluntary reports by suppliers or competitors (e.g., Panalpina-related cases)

● Remember: Goldman Sachs, Morgan Stanley, and CB Richard Ellis have made recent FCPA-related disclosures

Traditional law enforcement techniques ● Wiretaps and “stings”● The “Gun Sting” (January 2010)

22 defendants in the military and law enforcement products industry were arrested and indicted for FCPA violations

Search warrants were executed in 14 locations across the United States and in London Defendants allegedly participated in a scheme to pay a 22% commission to a sales

agent who represented the minister of defense for a country in Africa in exchange for part of a $15 million contract to provide products to the country’s presidential guard

First large-scale use of traditional undercover law enforcement techniques in an FCPA investigation

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Recent Enforcement Trends (cont.) Both the DOJ and SEC are seeking increasingly large

penalties● Nearly $2 billion in fines and penalties were levied against

companies for FCPA-related offenses in 2010● From 2009 to 2010, the total number of enforcement actions

nearly doubled, increasing from 45 actions (against 12 companies and 33 individuals) to 76 (23 companies and 53 individuals).

Both agencies are also focused on prosecuting individuals with more focus and frequency and have made public statements to that effect

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Recent Enforcement Trends (cont.) DOJ and SEC are increasingly utilizing expansive

theories of liability, including aiding and abetting, agency, and conspiracy theories

Anti-corruption enforcement is reaching more prominent global recognition

● International enforcement agencies have increased the number of anti-corruption related investigations and prosecutions

● Cooperation is increasingly routine● New anti-corruption legislation is being enacted● U.S. style approaches to investigations and resolutions are

being adopted by other nations’ enforcers

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The Importance of Compliance

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The Importance of Compliance – Bribery Violation Penalties

Criminal Penalties● Criminal penalties—Anti-Bribery Provisions

Up to a $2 million fine per violation for companies Up to a $250,000 fine and 5 years in prison per violation for individuals

● Criminal Penalties—Accounting and Internal Control Provisions Up to a $25 million fine per violation for companies Up to a $5 million fine and up to 20 years in jail for individuals

● Fines for both companies and individuals may be even higher than the ones included in the FCPA statute (up to 2x the benefit sought or received) under a federal alternative fine provision

The Importance of Compliance – Bribery Violation Penalties

Civil Penalties:● FCPA statute permits both the DOJ and SEC to impose a basic

$10,000 per violation civil fine upon individuals and companies● The SEC may also impose additional civil penalties ranging between

$5,000 to $100,000 upon individuals and $50,000 to $500,000 upon companies These additional penalties, and the SEC basic FCPA civil fine, are

adjusted for inflation Alternatively, the SEC may impose a civil penalty equal to the gross

pecuniary gain to an individual or company Company may not reimburse individual fines

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The Importance of Compliance – Bribery Violation Penalties

FCPA violations may result in● Debarment from government contracts● Corporate monitor● De-listing from stock exchanges● Reputation damages

Employee litigation Private cause of action brought by civil plaintiffs for damages under

RICO, or under other federal and state securities and fraud laws Lawsuits brought by customers and/or competitors for unfair competition

or fraud Additional penalties may be imposed under other applicable laws, such as

the UK Bribery Act

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Key Compliance Issues

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Key Compliance Issues Business Courtesies Facilitating Payments Third Parties (Placement Agents, Third-Party Marketers,

Consultants & Lobbyists) Joint Ventures Mergers & Acquisitions Red Flags

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Business Courtesies Effective anti-corruption compliance policies should

require that business courtesies (i.e., gifts, entertainment, and travel-related expenses) be pre-approved by an appropriate supervisor or the company’s compliance officer

Permissible expenditures for Foreign Officials should not be lavish or frequent and must be compliant with local laws

Transparency is the best way to avoid any appearance of corrupt intent

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Facilitating Payments Effective anti-corruption policies generally prohibit

or place strict limits on facilitating payments, including● Pre-approval procedures● Procedures to ensure such payments are accurately

recorded on the company’s books and records Again, may not be allowed under local law and are

prohibited under the U.K. Bribery Act

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Third Parties The FCPA and other anti-corruption laws prohibit direct and indirect

corrupt payments Enforcement activity routinely involves third parties

● Often the relevant question is whether you “know” the payment will go to a government official “Knowing” as defined by the FCPA includes conscious disregard and deliberate ignorance of

issues that a reasonable person would review before proceeding with a particular transaction Many other criminal statutes incorporate a similar “willful blindness” theory

Many types of third parties can put you at risk● Subsidiaries or other affiliates● Sales agents, sponsors, representatives, distributors, consultants (e.g., anyone

acting on your behalf)● Freight forwarders and customs brokers ● Relatives and friends of government officials● Companies owned by government officials● Joint venture and merger partners

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Third Parties (cont.) Including robust anti-corruption provisions in

all contract agreements with third parties is one way of mitigating potential anti-corruption risks presented by those relationships● It is not always easy to predict when a third

party might interact with foreign officials

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Joint Ventures Joint venture partners, and the joint venture itself, can

raise substantial compliance issues● For example, several recent FCPA resolutions all arose out of a

single Nigerian joint venture That joint venture was with a Nigerian government agency and some

joint venture employees were employees of that agency The DOJ/SEC alleged that bribes were paid through the joint venture

and have imposed nearly $1.3 billion in penalties against companies involved in the joint venture

As with third parties, keys to joint venture compliance involve careful due diligence and the incorporation of robust anti-corruption provisions into the joint venture agreement

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Mergers & Acquisitions Anti-corruption liability has often arisen in connection

with mergers and acquisitions● A U.S. company may acquire FCPA liability even if the target

was not subject to the FCPA when it made an improper payment

Avoiding liability in the merger and acquisition context requires robust due diligence

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Issues - Red Flags “Red flags” are facts that evidence a potential compliance issue

and should be addressed before proceeding with a transaction “Red flags” are not in themselves violations but instead are

indicators that require further due diligence Examples of red flags from the DOJ

● Unusual payment patterns or financial arrangements with prospective sales agent or other transaction partner

● History of corruption in the country where business would occur● Refusal by foreign transaction partner to certify that it will comply

with applicable anti-corruption laws

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Issues - Red Flags

Red flags are very fact-specific:● Prospective agent proposes unusually high commissions● Agent demands fees in cash as opposed to wire transfer● Third party is politically active● Third party has close relationships with foreign officials● Incomplete or inaccurate information or misrepresentations provided

during due diligence● Third party requests payment be made to someone else or to bank

account outside country of domicile● Lack of experience with relevant product or industry● Unwilling to enter into written agreement● Evidence of past violations of local law or policy by transaction partner

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Risk Mitigation Strategies

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Risk Mitigation Strategies Robust Compliance Programs With Substantial

Management Oversight Regular internal audits and internal investigations when

required Voluntary Reporting Considerations

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Robust Compliance Programs May result in the limitation of criminal, regulatory, and

civil liability Key features include

● Periodic compliance assessments and changes based on location and industry exposure

● In-person training (and ongoing training) to help employees identify and resolve “red flags”

● Open line of communication to GC or CCO and management buy-in

● Compliance hotline● Due diligence of transaction partners● In other words, not a “paper” program

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Robust Compliance Programs (cont.) The U.S. Sentencing Guidelines for Organizations outline

seven aspects of effective compliance● Compliance standards and procedures● Organizational leadership and a culture of compliance● Reasonable efforts to exclude prohibited persons● Training and communication of standards and procedures● Monitoring, auditing, and evaluating program effectiveness● Performance incentives and disciplinary actions● Response to criminal conduct and remedial action

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Independent Internal Investigations Allow company to determine the scope of potential problem and

proactively demonstrate compliance/remediation Initiated as soon as the company has reason to believe a problem

may exist and typically includes● Retention of experienced outside counsel, and if needed, outside

forensic accountants, who report directly to Board of Directors or Audit Committee

● Cessation of the potentially problematic conduct and evidence preservation

● Formulation of a properly scoped investigative plan● Consideration of voluntary disclosure to DOJ/SEC and applicable

securities laws disclosure obligations● Consideration of modifications to compliance program● Documentation of all investigative steps and privilege preservation

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Voluntary Reporting Advantages

● Allows company to present its own internal findings at a time it chooses● Permits company to present evidence of misconduct and evidence of its

overall compliance commitment at the same time ● May translate, in turn, to a reduction in penalties and the DOJ/SEC’s pursuit

of civil rather than criminal penalties Disadvantages

● May still lead to DOJ/SEC enforcement actions● Other countries may decide to investigate the corruption allegations● Companies that make filings with the SEC may have to disclose the internal

investigation in their filings● May result in the waiver of privilege in follow-on civil litigation

Seek advice from counsel before making a decision on self-reporting. ● The decision should be made at the highest level of the company.

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Questions

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Fulbright's White Collar Crime Practice

Experienced in the management of complex federal and state court litigation

Preventative counseling and compliance programs Reducing the risk of civil and criminal litigation

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Marsha Z. Gerber

Over 25 years of experience Named “Best FCPA Lawyer Outside of

D.C.,” Main Justice (2011) Established relationships with

government officials Conducts internal investigations on

behalf of the client; Analysis of and advice regarding key

client documents throughout the investigation and response period

Provides advice and counsel in reaching resolution of investigations

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Fulbright’s Real Estate Practice All aspects of the commercial real estate industry, including:

● Acquisition and disposition● Economic development incentives and programs● Workout and collateral enforcement● Financing Project Finance ● Retail Office/Commercial Projects ● Industrial and Manufacturing Facilities ● Land and Urban Development ● Health Care Facilities

Jane Snoddy Smith Partner jsmith@fulbright.comD: +1 512 536 5238

Amy M. Mitchell Sr. Counsel amitchell@fulbright.comD: +1 512 536 4525

Jennifer Sherrill Counsel jsherrill@fulbright.comD: +1 512 536 5249

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www.fulbright.com • 866-FULBRIGHT [866-385-2744]

Marsha Z. Gerber, +1-713-651-5296 or mgerber@fulbright.com