International Business Machines Corp. (IBM) said in March 2011 it had settled with U.S. regulators over allegations it bribed Chinese and South Korean officials to win at least $54 million in government contracts.
The deal still hasn’t been approved by a federal judge in Washington. Of 33 foreign bribery settlements with companies reached by the SEC since 2010, only one other failed to win judicial sign-off in less than three months.
The cause of the delay isn’t publicly evident. U.S. District Judge Richard Leon, in a set of unusual moves, has held off-the-record hearings and phone conferences with the parties. Even a request for more time to respond to comments Leon made during a nonpublic hearing on Nov. 15 wasn’t placed on the record. Only the order granting the request appears on the court docket.
Neither the SEC nor the company will discuss the matter.
“That’s certainly a long time,” Stephen Crimmins, a former SEC official now at K&L Gates LLP in Washington, said in an interview. “It’s possible Judge Leon is weighing the underlying factual record to see if the proposed settlement is in the public’s interest.”
The first hint of what’s causing the holdup may come Dec. 10 when the parties are required to submit papers responding to what Leon said in the Nov. 15 hearing, according to the court’s docket.
Leon declined to comment through Jenna Gatski, a court spokeswoman.
The company, without admitting or denying wrongdoing, agreed in 2011 to pay $10 million in disgorgement and penalties to settle alleged violations of the books-and-records and internal-control provisions of the Foreign Corrupt Practices Act, or FCPA.
The alleged payments, which occurred from 1998 through 2009, were made by employees at three subsidiaries of Armonk, New York-based IBM, as well as LG IBM PC Co., a joint venture with LG Electronics Inc., according to the SEC’s lawsuit.
The SEC said cash payments to South Korean officials from 1998 to 2003 totaled $207,000 and were connected to contracts worth almost $54 million. Some of the money was delivered in shopping bags.
In China, the IBM employees created “slush funds” at local travel agencies that were used to pay for overseas excursions by government officials, the SEC said. IBM employees also gave gifts, such as cameras and laptop computers, to Chinese officials, according to the complaint.
The SEC didn’t say what IBM received in return from those officials.
The misconduct in China “involved several key IBM-China employees and more than 100 IBM China employees overall,” the agency said.
The complaint and agreement were filed on March 18, 2011, and the first hearing was held two weeks later. The SEC then submitted a revised version of the consent and final judgment to Leon that removed reference to a section of the law capping some penalties at $10,000.
While the SEC’s complaint detailed allegations of bribery, it cited only books-and-records violations, raising the question of whether the agency could seek $5.3 million in disgorgement, Mike Koehler, a Butler University professor, said on his FCPA blog on March 24, 2011.
“It is difficult to see how mis-recording of a payment (a payment the SEC does not allege violated the FCPA’s anti-bribery provisions) can properly give rise to a disgorgement remedy,” Koehler wrote.
Since the case was filed, Leon hasn’t held a single hearing in public and until last month hadn’t asked for any additional filings from either side. At least three private meetings with the parties took place in his chambers without a court reporter present, according the case file and court stenographers.
IBM’s lawyer, Evan Chesler of Cravath, Swaine & Moore LLP in New York, and a company spokesman, Doug Shelton, didn’t respond to e-mail and telephone messages seeking comment on the settlement. John Nester, an SEC spokesman, had no immediate comment.
Since January 2010, the SEC has filed 33 proposed civil enforcement settlements in federal courts against companies citing FCPA violations, according to the commission’s website. Of those, all but five were approved within 30 days.
A $2 million settlement with Oracle Corp. (ORCL) filed in San Francisco on Aug. 16 received judicial approval 11 days later. The SEC’s portion of a $60.2 million agreement with Pfizer Inc. (PFE) in August was approved 21 days after it was filed in Washington.
The IBM case is one of five filed by the SEC since 2010 that didn’t include criminal charges brought by the Justice Department.
The only other SEC settlement awaiting approval is its $13.1 million deal with Tyco International Ltd. (TYC) that was filed in Washington on Sept. 24. Leon is overseeing that case, too.
In 2000, IBM settled with the SEC over alleged bribes in Argentina. An IBM subsidiary in the country was accused of making payments through a subcontractor in 1994 and 1995 to win a $250 million contract.
Without admitting or denying the allegations, IBM paid $300,000 to settle the matter.
The SEC ordered that the company “cease and desist” from “committing or causing any future violation” of the books-and- records provision of the Securities Exchange Act.
The case is SEC v. International Business Machines Corp., 11-cv-00563, U.S. District Court, District of Columbia (Washington).
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