SAP will pay over $220-million (R4,1-billion) to resolve investigations by the US Justice Department and the Securities and Exchange Commission (SEC) into violations of the Foreign Corrupt Practices Act (FCPA).
SAP’s resolution with the department stems from schemes to pay bribes to government officials in South Africa and Indonesia. The department’s resolution is co-ordinated with prosecutorial authorities in South Africa, as well as with the SEC.
According to court documents, SAP entered into a three-year deferred prosecution agreement (DPA) with the department in connection with a criminal information filed in the Eastern District of Virginia charging the company with two counts: conspiracy to violate the anti-bribery and books and records provisions of the FCPA relating to its scheme to pay bribes to South African officials, and conspiracy to violate the anti-bribery provision of the FCPA for its scheme to pay bribes to Indonesian officials.
“SAP paid bribes to officials at state-owned enterprises in South Africa and Indonesia to obtain valuable government business,” says acting-assistant attorney general Nicole Argentieri of the Justice Department’s Criminal Division. “Today’s resolution – our second coordinated resolution with South African authorities in just over a year – marks an important moment in our ongoing fight against foreign bribery and corruption.
“We look forward to continuing to strengthen our relationship with South African authorities and others around the world.
“This case demonstrates not only the critical importance of co-ordinated international efforts to combat corruption, but also how our corporate enforcement policies incentivise companies to be good corporate citizens, by co-operating with our investigations and appropriately remediating, so that we can take strong action to address misconduct.”
US attorney Jessica Aber for the Eastern District of Virginia, comments: “SAP has accepted responsibility for corrupt practices that hurt honest businesses engaging in global commerce. We will continue to vigorously prosecute bribery cases to protect domestic companies that follow the law while participating in the international marketplace.”
According to court documents, SAP and its co-conspirators made bribe payments and provided other things of value intended for the benefit of South African and Indonesian foreign officials, delivering money in the form of cash payments, political contributions, and wire and other electronic transfers, along with luxury goods purchased during shopping trips.
Specifically, with respect to South Africa, between approximately 2013 and 2017, SAP, through certain of its agents, engaged in a scheme to bribe South African officials and to falsify SAP’s books, records, and accounts, all with the goal of obtaining improper advantages for SAP in connection with various contracts with South African departments, agencies, and instrumentalities, including the City of Johannesburg, the City of Tshwane, the Department of Water and Sanitation (a South African state-owned and state-controlled custodian of water services), and Eskom.
“This successful resolution against SAP is another example of the power of relationships and persistence,” says Donald Always, assistant director in charge of the FBI’s Los Angeles Field Office. “The sustained diligence by the prosecution team and continuous collaboration with South African law enforcement, regulators, and prosecutors identified corrupt activity in multiple countries.”
In addition, between approximately 2015 and 2018, SAP, through certain of its agents, engaged in a scheme to bribe Indonesian officials to obtain improper business advantages for SAP in connection with various contracts between and among SAP and Indonesian departments, agencies, and instrumentalities, including the Kementerian Kelautan dan Perikanan (the Indonesian Ministry of Maritime Affairs and Fisheries) and Balai Penyedia dan Pengelola Pembiayaan Telekomunikasi dan Informatika (an Indonesian state-owned and state-controlled Telecommunications and Information Accessibility Agency).
“When the mails are used in furtherance of a fraud or corruption scheme, borders are not an obstacle for US Postal Inspectors,” says Eric Shen, postal inspector in charge of criminal investigations. “Postal inspectors, with our FBI law enforcement partners and Justice Department prosecutors, followed the wide-spread trail of bribes and corruption from South Africa to Indonesia. This joint effort resulted in the defendant company paying a significant criminal penalty and agreeing to long-term remedial measures.”
Pursuant to the DPA, SAP will pay a criminal penalty of $118,8-million and administrative forfeiture of $103 396 765. SAP will also continue co-operating with the department in any ongoing or future criminal investigation arising during the term of the DPA.
In addition, the department will credit up to $55,1-million of the criminal penalty against amounts that SAP pays to resolve an investigation by law enforcement authorities in South Africa for related conduct.
The department will credit up to the full forfeiture amount against disgorgement that SAP pays to the SEC or South African authorities.
Under Part I of the Criminal Division’s March 2023 Compensation Incentives and Clawbacks Pilot Program, SAP’s compliance obligations include a commitment to implementing criteria relating to compliance in the company’s compensation and bonus system, subject to local labor laws. Under Part II of the Pilot Program, the department reduced the criminal penalty by $109 141 for compensation that SAP withheld from qualifying employees, which action the company defended in substantial litigation.
The department reached this resolution with SAP based on a number of factors, including, among others, the nature and seriousness of the offense. SAP received credit for its cooperation with the department’s investigation, which included:
* Immediately beginning to co-operate after South African investigative reports made public allegations of the South Africa-related misconduct in 2017 and providing regular, prompt, and detailed updates to the department regarding factual information obtained through its own internal investigation, which allowed the government to preserve and obtain evidence as part of its independent investigation;
* Expeditiously producing relevant documents and other information to the department from multiple foreign countries, while navigating foreign data privacy and related laws;
* At the request of the department, voluntarily making company officers and employees available for interviews; taking significant affirmative steps to facilitate interviews while addressing witness security concerns;
* Raising and resolving potential deconfliction issues between SAP’s internal investigation and the investigation being conducted by the department;
* Promptly collecting, analysing, and organizing voluminous information, including complex financial information, at the request of the department;
* Translating voluminous foreign language documents to facilitate and expedite review by the department; and
* Imaging the phones of relevant custodians at the beginning of SAP’s internal investigation, thus preserving relevant and highly probative business communications sent on mobile messaging applications.
SAP also engaged in timely remedial measures, including:
* Conducting an analysis of the root causes of the underlying conduct and gap analysis, and undertaking appropriate remediation to address those root causes and enhance its compliance program;
* Undertaking a comprehensive risk assessment focusing on high risk areas and controls around payment processes and enhancing its regular compliance risk assessment process, including by incorporating comprehensive operational and compliance data into its risk assessments;
* Eliminating its third-party sales commission model globally, and prohibiting all sales commissions for public sector contracts in high-risk markets;
* Significantly increasing the budget, resources, and expertise devoted to compliance and restructuring its Offices of Ethics and Compliance to ensure adequate stature, independence, autonomy, and access to executive leadership;
* Enhancing its code of conduct and policies and procedures regarding gifts, hospitality, and the use of third parties;
* Enhancing its reporting, investigations, and consequence management processes;
* Adjusting compensation incentives to align with compliance objectives and reduce corruption risk;
* Enhancing and expanding compliance monitoring and audit programs, planning, and resources, including developing a well-resourced team devoted to audits of third-party partners and suppliers;
* Expanding its data analytics capabilities to cover over 150 countries, including all high-risk countries globally; and
* Promptly disciplining any and all employees involved in the misconduct.
In light of these considerations as well as SAP’s prior history, which include a non-prosecution agreement from 2021 with the department’s National Security Division, as well as administrative agreements with the Departments of Commerce and the Treasury relating to export law violations, and a resolution in 2016 with the SEC concerning alleged FCPA violations in Panama, the criminal penalty calculated under the US Sentencing Guidelines reflects a 40% reduction off the 10th percentile above the low end of the otherwise applicable guidelines fine range.