Comverse Technology ... Is It Really That Simple?

Question: "If you did not have the choice of deferred or non prosecution agreements, what would happen to the number of FCPA settlements every year.

Answer by Mark Mendelsohn, former FCPA chief DOJ: "If the Department only had the option of bringing a criminal charge or declining to bring a case, you would certainly bring fewer cases."

Mark Mendelsohn on the Rise of FCPA Enforcement, 24 Corporate Crime Reporter 35, September 10, 2010.

"... [T]he S.E.C.’s practice of permitting defendants to neither admit nor deny the charges against them remains pervasive, presumably for no better reason than that it makes the settling of cases easier."

U.S. District Court Judge Jed Rakoff (S.D.N.Y.) in SEC v. Vitesse Semiconducter Corp., March 21, 2010.

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A U.S. company has a subsidiary A.

Subsidiary A has a subsidiary - subsidiary B.

Subsidiary B engaged an agent who made improper payments partially facilitated by subsidiary's B's inflated commission payments to him.

There is no allegation that Subsidiary A knew about the payments.

There is no allegation that the U.S. company knew about the payments.

But subsidiary B's books, records and accounts are incorporated into the books, records and accounts of the U.S. company for purposes of financial reporting.

These are the essential facts from last week's FCPA enforcement action against Comverse Technology Inc. - "a world leader in multimedia telecommunications applications".

The enforcement action involved both a DOJ and SEC component. Total settlement amount was $2.8 million ($1.2 million criminal fine via a DOJ non prosecution agreement; $1.6 million in disgorgement and prejudgment interest via a SEC settled complaint).

Is it really that simple?

Some have suggested that Comverse received "lenient" treatment (see here). Yet, it is questionable whether Comverse would have faced any criminal liability should the DOJ have been required to satisfy its high burden of proof in court.

Yet, FCPA enforcement actions like Comverse seem to be becoming norm.

DOJ

The DOJ enforcement action was resolved via a non-prosecution agreement, meaning there was not, and will never, be judiciary scrutiny of the DOJ's enforcement theory.

The NPA (here) begins as follows.

The DOJ "will not criminally prosecute Comverse Technology, Inc. ("CTI"), Comverse Inc., a wholly owned subsidiary of CTI ("Comverse Inc."), and the subsidiaries of Comverse Inc., including Comverse Ltd. (collectively referred to as Comverse) for any crimes ... related to Comverse's knowing violation of the books and records provisions of the Foreign Corrupt Practices Act ... arising from and related to Comverse's failure accurately to record certain improper payments made by employees of Comverse Ltd. and certain subsidiaries of Comverse Ltd. and a third party agent from 2003 to 2006."

According to the NPA, Comverse Inc. was wholly-owned subsidiary of CTI and Comverse Ltd., an Israeli company based in Tel Aviv, was a wholly owned subsidiary of Comverse Inc.

The NPA has a term of two years and Comverse admitted, accepted, and acknowledged responsibility for the below described conduct. As is typical in FCPA NPAs or DPAs, Comverse agreed "not to make any public statement contradicting" the information below.

The conduct at issue focuses on monthly retainer fees paid by Comverse Ltd. to Agent G (an Israeli citizen engaged by Comverse Ltd. as an independent consultant with a particular focus on Greece) and commissions paid to Agent G on purchase orders. According to the NPA, "Agent G would keep 15% of the total commission, and the remaining 85% was used to make improper payments."

According to the NPA, "between 2003 and 2006, Comverse Ltd. made approximately $536,000 in cash payments to Corporation H [a Cyprus-based company created by Agent G at the direction of Comverse Ltd. employees to facilitate the payment of cash to representatives of certain Comverse Ltd. customers in exchange for securing purchase orders] with the intent that the money woudl be passed on to individuals connected to OTE, including employees of OTE's subsidiaries Cosmote, Cosmofon, and Cosmorom, in order to obtain purchase orders from those companies for Comverse Ltd. products and services, resulting in approximately $1.25 million in adjusted operating income."

OTE?

That would be the "Hellenic Telecommunications Organization S.A. - a telecommunications provider controlled and partially owned by the Greek Government." According to the NPA, "the Greek Government was OTE's largest single shareholder and maintained an interest in over one-third of OTE's issued share capital."

The DOJ agreed to resolve the enforcement action via a NPA "based, in part, on the following factors: (a) Comverse's timely, voluntary, and complete disclosure of the facts" [described above]; (b) Comverse's full cooperation with the Department and the [SEC]; and (c) the remedial efforts already undertaken and to be undertaken by Comverse."

The DOJ release (here) states as follows. "The [NPA] recognizes the company’s thorough self-investigation and the results of its investigation, voluntary disclosure of the underlying conduct, and full cooperation with the department. CTI has also undertaken extensive remedial efforts and overhauled its overall compliance culture, including through the implementation of mandatory training programs focused on anti-corruption and the use of third-party agents and intermediaries, as well as more rigorous accounting controls for the approval of third-party payments. As a result of these mitigating factors, the department has agreed not to prosecute CTI or its subsidiaries for failing to maintain accurate books and records, provided that CTI satisfies its obligations under the agreement for a period of two years. Those obligations include ongoing cooperation, payment of the $1.2 million penalty, and the continued implementation of rigorous internal controls."

SEC

The SEC's civil complaint (here) is based on the same core conduct described above.

The complaint alleges, in summary fashion, as follows.

"Between 2003 and 2006, Comverse Technology, Inc. (“Comverse”) violated the books and records and internal controls provisions of the Foreign Corrupt Practices Act (the “FCPA”) when its Israeli operating subsidiary, Comverse Limited (“Comverse Limited”), engaged in a scheme to make improper payments to obtain or retain business."

"In order to facilitate and conceal the payments, Comverse Limited employed a third-party agent (the “Agent”) to establish an offshore entity in Cyprus which, in turn, funneled the improper payments to Comverse Limited’s customers. Employees of Comverse Limited made payments to the Cyprus entity and, after taking 15% off the top of these payments, the Agent paid or facilitated the payment of the remaining 85% to Comverse Limited’s customers in the form of cash bribes."

"Comverse Limited did not accurately record these improper payments in its books and records, which, in turn, caused them to be improperly classified in Comverse’s consolidated financial statements. Comverse failed to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions at all levels of the organization were recorded properly."

Specifically, the SEC alleged as follows.

"Between 2003 and 2006, Comverse Limited made improper payments to employees connected to OTE in order to obtain or retain business with OTE. The scheme originated in Comverse Limited's EMEA (Europe, Middle East, and Africa) sales division and the improper payments were inaccurately recorded on Comverse Limited's books and records, which, in turn, were consolidated with Comverse's financial results."

"Between 2003 and 2006, Comverse Limited, using [Corporation H], made improper payments totaling approximately $536,000 to individuals connected to OTE, including employees of OTE's subsidiaries Cosmote, Cosmofon, and Cosmorom to obtain or retain OTE's business. The improper payments resulted in $1.2 million of improper benefit to Comverse Limited, which flowed through to Comverse."

As to internal controls, the SEC alleged as follows. "During the relevant time period, neither Comverse nor Comverse Limited had a process, formal or otherwise, for conducting due diligence of third-party agents or for the independent review of third-party agent contracts outside of the sales departments." The SEC further alleged as follows. "At the time of the conduct, while Comverse did have an omnibus anti-corruption policy that prohibited improper payments to government-affiliated third parties and others, Comverse did not widely circulate this policy and provided no training on it to any employees."

As to books and records, the SEC alleged as follows. "Comverse Limited falsified its books and records by characterizing and recording the bribes as legitimate sales commissions, thereby failing accurately to reflect the payments and their purpose. These improper expenses, in turn, were consolidated into Comverse's financial records."

Based on the above conduct, the SEC charged Comverse with FCPA books and records and internal control violations.

As noted in the SEC release (here) without admitting or denying the SEC's allegations, Comverse consented "to a conduct-based injunction that prohibits Comverse from having books and records that do not accurately reflect, or from having internal controls that do not prevent or detect, any illegal payments made to obtain or retain business." In addition, Comverse consented to pay $1,249,614 in disgorgement and $358,887 in prejudgment interest.

Daniel Horwitz (Lankler and Carragher - see here) represented Comverse.

The company's 8-K filing on April 7th stated as follows. " As originally disclosed by the Company on March 16, 2009, the Audit Committee of the Board of Directors of the Company conducted its own internal investigation into such payments. The Audit Committee found that the conduct at issue did not involve the Company’s executive officers."

The company's 10-K filing on January 25, 2011 suggests that the company's internal investigation was prompted by a whistleblower complaint and the filing details the company's remedial actions in connection with the investigation. According to the filing "the Company recorded charges of $2.9 million associated with [the FCPA matter] during the fiscal year ended January 31, 2009." The company has not yet disclosed what its fees and expenses were during the fiscal year ended January 31, 2010.

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Another interesting item from Comverse's SEC filings. "For the fiscal year ended January 31, 2010, approximately one quarter of Verint's [Comverse's majority-owned publicly traded subsidiary] business was generated from contracts with various governments around the world, including federal, state, and local government agencies."