Tuesday, August 10, 2010

Innospec Related News

In March, Innospec (a global chemical company) settled bribery enforcement actions on both sides of the Atlantic (see here).

This post discusses recent Innospec news - the SEC enforcement action against an Innospec agent (an individual who previously plead guilty to a DOJ enforcement action - see here) and a former Business Director at the company; a civil suit filed by an Innospec competitor in U.S. District Court in Richmond, Virginia; and how Innospec continues to grow its cash coffers despite receiving a pass on $50 million in fines and penalties in the March enforcement action based on inability to pay.

SEC Enforcement Action Against Turner and Naaman

Last week, the SEC added to Ousama Naaman's legal woes charging him (see here) with civil FCPA anti-bribery violations, knowingly circumventing or knowingly falsifying books and records, and aiding and abetting Innospec's FCPA books and records and internal control violations. According to the SEC release (see here) Naaman, Innospec's agent in Iraq, agreed to disgorge $810,076 plus prejudgment interest of $67,030 and pay a penalty of $438,038 that will be deemed satisfied by his criminal fine. The disgorgement amount represents commissions Naaman received from Innospec "for his role in funneling bribe payments." To my knowledge, the approximate $877,000 the SEC will recover from Naaman is the largest SEC recovery against an individual FCPA defendant.

In the same complaint, the SEC also charged David Turner, the Business Director of Innospec's TEL Group, with the same substantive charges as Naaman. According to the complaint, Turner (a U.K. citizen who left Innospec in June 2009) "actively participated" in Innospec's bribery and kickback schemes in Iraq and "actively participated" in Innospec's bribery scheme in Indonesia.

According to the complaint:

"Turner was aware of the kickback scheme in connection with the Oil for Food Program. At some point in late 2002 or early 2003 Innospec's internal auditors questioned Turner about the nature of the commission payments that were made to Naaman under the U.N. Oil for Food Program. Turner made false statements to the auditors and concealed the fact that the commission payments to Naaman included kickbacks to the Iraqi government in return for Oil for Food contracts. Turner also made false statements when he signed annual-certifications that were provided to auditors up until 2008 where Turner falsely stated that he had complied with Innospec's Code of Ethics incorporating the company's Foreign Corrupt Practices Act policy prohibiting kickbacks and bribery, and that he was unaware of any violations of the Code of Ethics by anyone at Innospec."

Even after the Oil for Food Program was terminated in late 2003, the complaint alleges that "Turner, along with senior officials at Innospec, directed and approved" additional bribe payments to Iraqi officials. In addition, the complaint alleges that "Turner and other Innospec officials directed and authorized payments, through Naaman, to fund lavish trips for Iraqi officials."

As to Indonesia, the complaint alleges that "Turner, along with senior officials at Innospec, authorized and directed the payment of bribes to Indonesian government officials from at least 2000 through 2005, in order to win contracts for Innospec for the sale of TEL to state owned oil and gas companies in Indonesia." According to the complaint, Turner and other Innospec officials and employees used various "euphemisms" in e-mail communications and in discussions to refer to the bribery scheme.

According to the complaint, Turner "obtained $40,000 in bonuses that were tied to the success of the TEL sales, which were procured through bribery."

According to the SEC release, Turner, without admitting or denying the SEC's allegations, consented to entry of a final judgment requiring him to disgorge $40,000. The release states that no civil penalty will be imposed on Turner "based on, among other things, Turner's extensive and ongoing cooperation in the investigation."

Competitor Sues Innospec

The FCPA does not have a private right of action (although as I explored in this post it would be interesting if a court were faced with this issue today).

However, a company that settles an FCPA enforcement action increasingly faces collateral litigation, most often shareholder derivative claims. If a plaintiff does craft a direct cause of action against the company, it is usually a RICO claim.

As noted in this Richmond Times-Dispatch story, NewMarket Corp.'s civil case against Innospec does not fit the above mold, rather it alleges that Innospec's conduct, as set forth in the DOJ and SEC enforcement actions, violated the Robinson-Patman Act and the Virginia Antitrust Act as well as the Virginia Business Conspiracy Act.

The article quotes NewMarket's principal financial officer as saying that the company learned of Innospec's actions after reading the documents released in connection with the March enforcement action. Among other things, the DOJ and SEC alleged that Innospec's bribe payments in Iraq ensured that a field test of a competitor's fuel additive failed. NewMarket claims that the competitor was a subsidiary company Ethyl Petroleum Additives Inc. which now goes by the name Afton Chemical Corp.

Innospec Continues to Be In the Money

In this prior post I highlighted how Innospec was ordered to pay $60,071,613 in disgorgement in the SEC's enforcement action, but because of Innospec's "sworn Statement of Financial Condition" all but $11,200,000 of that disgorgement was waived.

In other words, Innospec got a pass on approximately $50 million in March.

I then noted that Innospec's first quarter financial results were positive and that
"as of March 31, 2010, Innospec had $67.5 million in cash and cash equivalents, $22.5million more than its total debt of $45.0 million."

Innospec recently reported its second quarter financial results and it continues to be in the money. As noted in this company release:

"As of June 30, 2010, Innospec had $77.0 million in cash and cash equivalents, $30.0 million more than its total debt of $47.0 million."

The company's President and Chief Executive Officer stated that “Innospec’s second quarter operating results were very strong, with impressive double-digit increases in sales and operating income across all three business segments."

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