On Tuesday, November 8, 2016 France passed its new anti-corruption legislation, to improve its commitment to business ethics, the prevention of fraud and prohibiting the bribery of foreign public official. The new anti-corruption law, which has taken over a year to revise and implement, is intended to reach the same standards and levels of enforcement as the United Kingdom’s Bribery Act (“BA”) and the American Foreign Corrupt Practices Act (“FCPA”). The most interesting aspect of the new law is that it permits corporate defendants to enter into negotiated resolutions, in a form that is commonly known as Deferred Prosecution Agreements (“DPAs”).
France has long been criticized for its weak anti-corruption law and enforcement activities. The Organization for Economic Cooperation and Development (“OECD”) working group on bribery said recently that about 24 new corruption cases were opened in the past two years by French authorities yet no French corporation had been convicted of any foreign bribery offence. In 2014, however, the United States Department of Justice (“DOJ”) secured three of the ten biggest Foreign Corrupt Practices Act (“FCPA”) enforcement actions against French companies by means of DPAs. French corporate giants Alston paid $772 million, Total SA, paid $398 million and Technip SA, paid $338 million. France is the only country whose corporations have appeared on the DOJ’s FCPA top ten list, three times.
In a case that demonstrates the remarkable contrast between the American and Canadian enforcement of tax rules, the United States Court of Appeals, for the Second Circuit, recently upheld a conviction in a sentence of 180 months imprisonment for seven counts of tax fraud and evasion. The severity of the penalty assessed against Paul M. Daugerdas (“Daugerdas”), can only be matched by the huebris of the defendant himself. The case is a cautionary tale for Canadian tax planners in an age of growing tax evasion and fraud enforcement.
Daugerdas was a certified public accountant and tax attorney, first at Arthur Anderson, then at two law firms. Throughout his career, Daugerdas developed, sold, and implemented a variety of tax reduction strategies for wealthy clients. His specialty was the so-called “short sale shelter, short option shelter, swaps shelter, and the HOMER shelter”. Deugerdas’ tax planning and shelters covered a period from 1994 through to 2004. In August of 2000, the Internal Revenue Service announced that transactions like those being offered by Dougerdas no longer provide the favourable tax treatment that he offered to his clients. In response, Deugerdas and his colleagues developed similar transactions with different elements and strategies.
Deugerdas’ huebris was exposed in the appeal decisions when the evidence reveled that part of his tax planning strategy involved intentional back-dating documents to attempt to gain tax advantages for his clients. Also, had his law firms issue “more-likely-than-not” opinion letters falsely stating that the tax shelters had a reasonable possibility of producing a profit, but it was clear that they would not. The letters were held to be entirely dishonest.
This post was originally published on Timely Disclosure (a Fasken Martineau blog) and authored by Tracy L. Hooey.
Securities regulatory authorities in Ontario and nine other provinces and territories of Canada published CSA Multilateral Staff Notice 58-308 Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices on September 28, 2016. The staff notice summarizes a review of the gender diversity and term limit disclosure of 677 non-venture issuers (being those listed on the Toronto Stock Exchange with year-ends between December 31, 2015 and March 31, 2016). As a result, these statistics do not include data regarding most banks.
Key findings of the gender diversity disclosure review include:
- there are more women on boards than last year. Of the 215 issuers with over $1 billion market capitalization, 18% of board seats are held by women (up from 10% last year);
- only 21% of issuers adopted a policy relating to the identification and nomination of women directors (up from 15% last year) and issuers with such a policy had higher average female board representation (18%) as compared to those with no policy (10%);
- only 9% of issuers set a target for the representation of women on boards (up from 7% last year) and those issuers with targets had a greater number of women on their boards (25%) than those without a target (10%);
- 66% of issuers disclosed that they consider the representation of women on their boards as part of their director identification and nominating process (up from 60% last year);
- board and executive officer representation by women varied significantly by industry.
Key findings of the board renewal disclosure review include:
- 20% of issuers adopted director term limits (up from 19% last year);
- of those issuers with term limits, 48% set age limits, 23% had tenure limits and 29% had both;
- the most common reason cited for not adopting board renewal mechanisms was that term limits reduce continuity or experience on the board.
This release follows Ontario Securities Commission Chair and CEO Maureen Jensen’s call for leadership on women on boards. Chair Jensen highlighted the low number of women filling board vacancies. She noted that “of the 521 board seats vacated during the year, just 15% were filled by women” and “without an improvement in the vacancy fill rate, we will never reach 30% female board representation”.
Proposed Amendments to CBCA
In addition, the Government of Canada released proposed amendments to the Canada Business Corporations Act which, among other things, would require that distributing CBCA corporations identify the gender composition of their boards and senior management and disclose their diversity policies or explain why none are in place.
While complex financial crimes can be difficult to investigate and prove, the Cinar and Livent cases serve to highlight the substantial risks of engaging in financial wrongdoing, not just for corporate executives who may be directly implicated, but also for those who assist in the wrongful activities.
The recent conviction and sentence imposed following the two year long criminal jury trial of Ronald Weinberg (“Weinberg”), co-founder of Cinar Corp. (“Cinar”), highlights the severe consequences facing those who carry out or assist in financial fraud and other white collar crimes. The Globe & Mail called Weinberg’s guilty verdict a “vindication for a Canadian justice system that has often been criticized for weak enforcement and a poor record for criminal convictions in the area of white collar crime”.
The slow rot of the private and public sector
Since the early 2000s, there have been numerous news reports in South Africa indicating that white collar crime is on the rise. From 2014, despite police statistic reports indicating an 11% decrease in economic crimes, independent studies conducted by PwC indicate a burgeoning increase in fraud, money laundering, corruption, collusion and bribery by senior management in companies and by politicians in high ranking government positions.
South Africa has the potential to increase the number of its successful prosecutions if a greater emphasis is placed on the importance of prosecuting white collar crimes.
Economic crime is constantly evolving and becoming a more complex issue for organisations and economies. In South Africa, more than two thirds of South African organisations have experienced economic crime. The overwhelming cause of the increase in white collar crimes is that detection methods are not keeping pace, local law enforcement agencies place little to no emphasis on white collar crime, bundling together a broad range of illicit activity, including insider trading and credit card fraud together with public procurement fraud and private sector corruption, and there is a general failure to prosecute and punish these crimes effectively. Further, many individuals facing charges of fraud, corruption, money-laundering or insider-trading have the ability to delay prosecution by launching numerous appeals and other actions. This accompanied by South Africa’s back-logged High Court system, the inability of the National Prosecuting Authority (The NPA) to prosecute economic crimes and the poor levels of investigation by police services, in no way serves to deter individuals from committing such crimes.
This week, White Collar Post features a guest post from internationally known compliance and anti-corruption expert Marc Y. Tassé.
While the leaks continue from the “Panama Papers”, continuing to make headlines around the world, and as the related scandals intensify, there have been numerous articles written on the whole topic. My following comments and remarks take under consideration and outline some of those and my own comments.
The International Consortium of Investigative Journalists obtained millions of documents showing heads of state, criminals and celebrities using secret hideaways in tax havens.
- Files reveal the offshore holdings of 140 politicians and public officials from around the world
- Current and former world leaders in the data include the prime minister of Iceland, the president of Ukraine, and the king of Saudi Arabia
- More than 214,000 offshore entities appear in the leak, connected to people in more than 200 countries and territories
- Major banks have driven the creation of hard-to-trace companies in offshore havens
Offshore banking is not in itself illegal, and those named in the “Panama Papers” should not automatically be presumed to have done anything wrong, but history has shown that secrecy attracts those with something to hide. The offshore banking system is being abused for illicit purposes such as tax evasion and money laundering resulting from corruption.
The enforcement efforts of the Ontario Securities Commission (OSC), the regulator that administers and enforces compliance with the provisions of the Securities Act (Ontario) and the Commodity Futures Act (Ontario), have had mixed success— at best. With a mandate to protect investors and ensure fair and efficient capital markets through monitoring compliance and enforcement measures in the securities industry in Ontario, the regulatory body has been struggling to be taken seriously. Having taken a chapter from the playbook of the American national Securities Exchange Commission (SEC), prosecuting individuals for Insider trading, tipping, and securities fraud, the initial results, which are highlighted below, were underwhelming. Now, in a renewed effort to assert its presence in the capital markets as a regulator with teeth, the OSC is taking new approaches, with more promising results.
Although white collar crime is a worldwide phenomenon, in South Africa it tends to stand out as being particularly prevalent. White collar crime is a growing menace to businesses in and around South Africa. More and more senior managers are being involved in fraudulent schemes and activities. In addition, the sophistication and complexity in the way white collar crimes are carried out are on the rise.
One of the major catalysts of white collar crime in South Africa is that the perpetrators know that they are unlikely to be caught. The lack of investigation and prosecution is a concern to businesses in South Africa. How much protection will they receive if they do fall victim to white collar crime? Investigators of white collar crime attempt to put together dockets, with their attorneys’ assistance, which are then submitted to the National Prosecuting Authority. However, there is a lack of resources to facilitate prosecuting services in dealing with such complex crimes.
In what can only be described as a harsh sentence, with scathing reasons, Justice MacDonnell sentenced Vadim Kazenelson to 3 ½ years in prison, for each of five convictions of criminal negligence, relating to the Metron Construction Swing Stage collapse, to be served consecutively. With the January 11, 2016 sentencing, the tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion. On June 26, 2015, following a trial, Kazenelson had been found guilty of all five counts of criminal negligence for which he had been charged in relation to the cause of the incident.
The trial judge said in the Reasons for Sentence: “ … a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families … “
In August 2009, Metron was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Mr. Kazenelson was retained by Metron as its project manager. Mr. Kazenelson owned and operated his own construction company and according to reports, came highly recommended as an experienced and qualified project manager.
The tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion with the criminal conviction and sentencing of the project manager overseeing the project. On June 26, 2015, following a trial, Vadim Kazenelson (Mr. Kazenelson), the project manager overseeing the project for Metron Construction Company (Metron), was found guilty of five counts of criminal negligence in relation to the accident. Mr. Kazenelson has had sentencing submissions completed before the trial judge.
The Crown argued that a penitentiary sentence of 4 to 5 years was appropriate, and that the sentence should be at the upper range. The Defence argued that the appropriate sentence in this case was 12 months to 2 years of incarceration. The Defence argued that 4 years imprisonment overshoots the mark for deterrence purposes, and that there is a real risk of sentencing imbalance, given that imprisonment is a blunt instrument. At the conclusion of submissions, Justice MacDonnell commented that there is no sentencing precedent that could easily be applied to this case, and as a result, sentencing would require much more thought. Justice MacDonnell did note that it is common ground that incarceration should be imposed; the only question remaining is the length of incarceration. Justice MacDonnell adjourned the sentencing decision until January 11, 2016.