First Enforcement Action of 2011 Involves a Former Executive Officer

In March 2010, Innospec Inc. was charged on both sides of the Atlantic in a joint DOJ / SEC / U.K. Serious Fraud Office enforcement action. (See here and here).

In August 2010, the SEC charged David Turner, the Business Director of Innospec's TEL Group, and Ousama Naaman, the company's agent, for their role in the bribery scheme. (See here). Naaman was also charged by the DOJ, pleaded guilty, and awaits sentencing. (See here).

Yesterday, in the first FCPA enforcement action of the year, the SEC charged Paul Jennings, Innospec's former CFO and CEO, for his involvement in the bribery scheme. (See here). Jennings resigned from Innospec in March 2009 (see here).

Jennings name is now included on a rather short list of high-ranking executives of public companies (or affiliates) recently charged by the SEC in an FCPA enforcement action. In July 2009, Douglas Faggioli (the current President and CEO) and Craig Huff (the former CFO) of Nature's Sunshine Products were charged (see here); in September 2008, Albert Jackson Stanley (the former CEO of Kellogg Brown & Root Inc.) was charged (see here); in December 2007, Robert Philip (the former Chairman/CEO of Schnitzer Steel was charged (see here); and in September 2007, Monty Fu (the former Chairman of Syncor International Corp. was charged (see here).

The facts of the underlying bribery scheme in the Jennings enforcement action are detailed in the prior posts linked above and this post details the allegations in the SEC's complaint (here) regarding Jennings knowledge and involvement in the scheme.

In summary fashion, the complaint alleges as follows:

"This action arises from widespread bribery of foreign officials by Innospec, Inc., some of which occurred and was approved by Paul W. Jennings beginning in mid to late 2004 during his tenure as Chief Financial Officer ("CFO") and continuing after he became Chief Executive Officer ("CEO") in 2005."

"Beginning in mid to late 2004, Jennings, who held various senior roles at Innospec, including CFO and CEO, actively participated in the bribery schemes in Iraq and Indonesia."

"Jennings violated [the FCPA's anti-bribery provisions] by engaging in widespread bribery of government officials in Iraq during the post-Oil for Food period in order to sell TEL to the Iraqi Ministry of Oil ("MoO") and by engaging in bribery of Indonesian officials to sell TEL to state owned oil companies in Indonesia. Jennings aided and abetted Innospec's violations of [the FCPA's anti-bribery provisions] by substantially assisting in Innospec's bribery of Iraqi and Indonesian government officials."

"Innospec, a U.S. issuer, made use of U.S. mails and interstate commerce to carry out the scheme, and Jennings, a dual U.S. and U.K. national was complicit in the scheme. Jennings both sent and received e-mails to and from the United States to carry out the scheme. He also used interstate commerce and the mails as part of the scheme. Jennings obtained $116,092 in bonuses that were tied to the success of the TEL sales, which were procured through bribery."

"Jennings also violated Section13(b)(5)of the Exchange Act and Rule 13b2-1 thereunder by falsifying documents as part of the bribery scheme. Jennings also violated Exchange Act Rule 13b2-2 by making false statements to accountants and violated Exchange Act Rule 13a-14 by signing false personal certifications required by the Sarbanes-Oxley Act of 2002 that were attached to annual and quarterly Innospec public filings."

"Jennings also aided and abetted Innospec's violations of [the FCPA's books and records and internal control provisions] by substantially assisting in Innospec's failure to maintain internal controls to detect and prevent bribery of officials in Iraq and Indonesia, and the improper recording of the illicit payments in Innospec's books and records."

According to the SEC, "beginning in 2005, Jennings, along with other members of Innospec's management, approved bribery payments to officials at the Iraqi Ministry of Oil in order to sell TEL to Iraq. The complaint alleges that Innospec, with the approval of Jennings, used Naaman as its agent in Iraq to make improper payments and the complaint alleges that Jennings was copied on certain e-mails between Naaman and Turner discussing the bribery scheme. The complaint further alleges that Jennings approved certain payments to Naaman to facilitate the bribery scheme including certain payments Jennings approved "while in the United States." Many of the SEC's allegations as to the Iraqi conduct are phrased as Jennings had "general knowledge" or that Jennings was "generally aware" of the conduct at issue.

As to Indonesian payments, the complaint alleges that "Jennings became aware of and approved the improper payments to Indonesian government officials in order to win contracts for the sale of TEL to state owned oil and gas companies. Among other allegations, the complaint alleges that "in December 2004, Jennings and Executive B [the CEO of Innospec from 1998 to April 2005] discussed Innospec's bribery scheme in Iraq and Indonesia on a flight from Denver to New York" and that "while Indonesian Agent was in the United States during the holidays, various e-mails were sent to and from the United States that discussed Jennings' and Turner's continued efforts to support Indonesian Agent's payment of bribes on Innospec's behalf." The SEC also alleges that the "bribery scheme" was also discussed "during Jennings' performance review in January 2005."

As to Jennings false certifications, the complaint alleges as follows.

"From 2004 to February 2009, Jennings signed annual certifications that were provided to auditors where he falsely stated that he complied with Innospec's Code of Ethics incorporating the company's Foreign Corrupt Practices Act policy, and that he was unaware of any violations of the Code of Ethics by anyone else. During that time frame, Jennings actively participated in bribery of Iraqi and Indonesian officials as described above. Jennings also signed annual and quarterly personal certifications pursuant to the Sarbanes-Oxley Act of 2002 in which Jennings made false certifications concerning the company's books and records and internal controls. Jennings also signed false management certifications to Innospec's auditors indicating that the books and records were accurate and that Innospec had appropriate internal controls."

As noted in the SEC release, without admitting or denying the SEC's allegations, Jennings agreed to disgorge $116,092 plus prejudgment interest of $12,945 and pay a civil penalty of $100,000. The SEC stated that the figures take into consideration Jennings's cooperation in this matter.

In the release, Cheryl Scarboro (Chief of the SEC's FCPA Unit) stated, "we will vigorously hold accountable those who approve such bribery and who sign false SOX certifications and other documents to cover up the wrongdoing."