Former Government Contractor Indicted for Selling Falsified Resumes and Counterfeit Government Training Certificates

On December 12, the United States Department of Justice announced that a former U.S. government contractor  was indicted in the District of South Carolina on December 12 for his alleged role in selling falsified resumes and counterfeit U.S. government training certificates to individuals who were seeking employment on U.S. government contracts in Afghanistan between 2012 and 2015.  The defendant, Antonio Jones, is charged with one count of conspiracy to defraud government contractors and the United States, nine counts of wire fraud, and three counts of false statements.

The indictment alleged

that Jones created an entity known as Wolverine Inc., through which he offered job placement services to clients seeking employment with U.S. government contractors in Afghanistan and elsewhere.  Jones allegedly falsified his clients’ resumes and manufactured counterfeit U.S. government training certificates for his clients to make them appear more qualified than they actually were.  Jones and his clients then used the falsified documents in job applications that were submitted to U.S. government contractors, the indictment alleges.  At least two U.S. government contractors, one of which was based in the District of South Carolina, working on a multibillion-dollar Defense Department contract hired personnel allegedly based on false documents that Jones created and supplied or caused to be supplied to them.

Note: This case should prompt compliance officers in companies that do substantial amounts of government contracting to review their procedures for validating documentation that third-party applicants for contracting assignments submit.  Neither of the companies that allegedly hired people who submitted false documentation are alleged to have had any knowledge of the falsity or complicity in the alleged offenses at the time of hiring.  Nonetheless, government contractors need to recognize that the cost to a contractor of establishing or maintaining robust document-validation procedures is preferable to the cost of undermining government agencies’ confidence in that contractors and its hiring processes.

Professor John Darley: An Appreciation

One of the well-established concepts in social psychology and behavioral economics is loss aversion: i.e., “the idea that losses generally have a much larger psychological impact than gains of the same size.”  While psychologists and economists generally discuss loss aversion in the context of tangible gains and losses, loss aversion has some bearing on our response when a person who we know has made significant contributions in life passes away.  Our immediate sadness at the loss of the person can distract us from thinking about and appreciating the gains that he or she provided to society or to specific people.  For that reason, this post is devoted to a brief appreciation of Professor John Darley, with particular reference to aspects of his research and writing that should be of great interest to corporate-compliance professionals.

Professor Darley, who died several months ago at age 80, was not merely a distinguished Professor of Psychology and Public Affairs at Princeton University for many years, but “one of the foremost figures of social psychology” who strongly influenced the growth and development of that field.  His peers recognized him for numerous contributions in the field, through research, writing, and teaching, on such topics as deviance and conformity, stereotyping and prejudice, “morality and the law, the function of punishment, and the way organizations inadvertently promote evil.”

Perhaps his greatest contribution that has special relevance to corporate compliance was his pathbreaking work, with Professor Bibb Latané, on what became known as “the bystander effect.”  Influenced by the famous 1964 murder in New York City of Kitty Genovese, who reportedly was stalked and stabbed to death while numerous people watched but did nothing to intervene, Professors Darley and Latané conducted a series of experiments that they ultimately described in an influential paper and book.  Those experiments prompted Professor Darley to conclude that

more people present at the scene of an emergency could reduce the chances that anyone would help, either due to pluralistic ignorance (the assumption that because no one is helping, everything must be all right) or diffusion of responsibility (a diminished sense of personal responsibility when others are present).

In fact, corporate compliance officers should recognize that the “bystander effect” can arise in certain corporate settings, even in a company that has asserted that it supports a “speak up” culture.  When multiple corporate employees are gathered in a meeting (whether face-to-face or virtual), and some authority figure proposes a course of action that may lead to unethical or illegal conduct, some individual employees in the meeting may be troubled, but the existence of a “speak up” policy or a confidential hotline may be less salient at that moment than the influence of both pluralistic ignorance and diffusion of responsibility in causing those employees not to speak up.

Another of Professor Darley’s works of value to corporate-compliance experts is his 2005 law review article, “The Cognitive and Social Psychology of the Contagious Organizational Corruption.”  In that article, he synthesized a substantial body of social-psychology research and writing in rejecting the theory of “a few bad apples” who are responsible for corporate corruption.  In his view, “some of the people who launch these corruption-initiating acts do not scrutinize these contemplated acts from an ethical perspective. Strange as it may seem, they do not see them as unethical.”  He also posed the question, “What causes the organization to turn itself into one that works together to produce full-blown ethical transgressions?,” and posed a three-part answer:

First, because these others often accept the implied definition that the first actions were ethical in nature, the distance between that first act and the next one that amplifies it are not easily recognizable. Second, these follow on acts are perhaps seen as ethically grey and further are produced out of considerations of group loyalty and commitment. Third, when one is a committed member of an organization, social identity theory points out that we experience an alteration in personality. We “become” the prototypic member of the group, and the cues around us are that the prototypic group members are engaging in the corrupt actions. Thus we do so also. Finally, it is a little noticed truth that our society offers alternate identities to citizens, and some of them allow for acting in ways that, from the perspective of another identity the person could assume, are unethical. (Footnote omitted)

In elaborating on these answers, Professor Darley made a number of key observations about how human beings actually behave:

Many of the actions that begin cycles of corruption are the products of the intuitive judgment system, which means that they are rapidly arrived at, less than consciously considered, and unintentional in their ethical dubiousness. Further, they are often the product of pressure to make fast decisions. And under this condition, they are not subject to the monitoring of the decision, which is done by the reasoning system. As [Professor Daniel] Kahneman comments, “the monitoring is normally quite lax and allows many intuitive judgments to be expressed, including some that are erroneous.” The suggestion that emerges is that the “natural” intuitive decision is likely to be a self interested one. . . . This decision may be overridden by the more deliberate thinking of the reasoning system, but only if something triggers that system into action. Thus, in sum, corrupt actions are often committed by people who are not themselves corrupt.

Corporate-compliance officers who have heard generally about the value of social psychology and behavioral economics in corporate compliance, but are unsure where to begin exploring these fields, should take the trouble to read this article.  Moving away from a “bad apples” theory of how to structure compliance policies and internal controls, and toward a more dynamic view of how people actually behave in uncertain situations, can lead to meaningful improvements in compliance policies, controls, and even training.  Corporate-compliance officers who adopt that approach will therefore have much for which they can thank Professor Darley.

(P.S.: Compliance professionals who want to explore these fields further can begin with online resources such as the University of Texas McCombs School of Business’s “Ethics Unwrapped” website, or books by two Nobel prize-winning professors: Professor Daniel Kahneman’s Thinking, Fast and Slow (2011) and Professor Richard Thaler’s Misbehaving (2015).)

(P.P.S.: I took Professor Darley’s Social Psychology course at Princeton long ago and obtained the “easy A” that his course was reputed to offer, but did not come to know Professor Darley himself.  What I did not expect to get was a lasting set of insights into behavioral influences and “mental shortcuts” that proved meaningful later in my career to understand initially baffling behaviors of both criminals and victims.)

(P.P.P.S.: Professor Darley died of complications from Lewy body dementia (LBD), the second most common type of progressive dementia after Alzheimer’s disease.  There is no cure for LBD, and there is still, as the National Institute of Neurological Disorders and Stroke (NINDS) has tactfully stated, “a great deal to learn about LBD.”  Those interested in learning more about LBD can consult websites such as the Cleveland Clinic, the Lewy Body Dementia Association, the Mayo Clinic, NINDS, the Stanford Medicine LBD Research Center of Excellence, and in the United Kingdom the Lewy Body Society.)

Singapore Charges Two Workers with Corrupt Transactions for Demanding S$1 Bribes

On December 11, the Singapore Corrupt Practices Investigation Bureau (CPIB) announced that two forklift truck operators employed by Cogent Container Depot Pte Ltd (Cogent), a subsidiary of China COSCO Shipping Group, were charged with violating section 6(a) of the Singapore Prevention of Corruption Act, which criminalizes “corrupt transactions with agents,” for demanding bribes of as low as S$1 (US$0.73) from truck drivers at Cogent.

One defendant, Chen Ziliang, was charged with one count of corruptly attempting to obtain from another person a bribe of S$1, as an inducement for not delaying the collection of a container onto that person’s vehicle, and one count of “embarking on a course of conduct between May 2016 and March 2018 of corruptly obtaining gratification of similar value from truck drivers at Cogent, as inducement for not delaying the collection or return of containers onto the vehicles of these truck drivers.”  The other defendant, Zhao Yucun, was also charged with one count of “embarking on a course of conduct between September 2014 and March 2018 of corruptly obtaining gratification of similar value from truck drivers at Cogent, as inducement for not delaying the collection or return of containers onto the vehicles of these truck drivers.”

The CPIB stated that

[e]mployees are expected to carry out their duties fairly instead of obtaining bribes in exchange for favours. Even if the bribe amount is as low as $1, they can be taken to task. Bribes of any amount or any kind will not be tolerated. . . .

Singapore adopts a zero-tolerance approach towards corruption. It is a serious offence to bribe, or attempt to bribe another individual or entity. Any person who is convicted of a corruption offence can be fined up to $100,000 or sentenced to imprisonment of up to 5 years or to both.

Note: Chief legal and compliance officers in global companies – including, but not limited to, companies doing business in Singapore – should use this case as an opportunity to remind their global and regional anti-bribery and corruption (ABC) compliance teams about the importance of tailoring their monitoring, oversight, and training activities to include, when appropriate, country-specific ABC legal prohibitions and limits on transfers of value.  They may also want to communicate an outline of the case to other senior officers, to underscore the importance of their companies’ compliance with all relevant laws in the jurisdictions where the companies do business.

Moreover, if a company’s ABC policy contains any provisions that appear to approve or tolerate facilitation payments in general, the company may need either to communicate that the company will not allow or approve facilitation payments in certain jurisdictions or revise its policy to eliminate any facilitation-payments exception.  While Singapore represents a particularly stringent application of anti-corruption offenses, various other countries do not recognize facilitation payments as an exception to their anti-corruption offenses.  Accordingly, companies should not assume that law enforcement in those jurisdictions will ignore evidence of repetitive facilitation payments merely because the payments are low amounts.

FinCEN and Federal Financial Institution Supervisory Agencies Issue Joint Statement on Innovative Efforts to Combat Money Laundering and Terrorist Financing

On December 3, the Financial Crimes Enforcement Network (FinCEN) and the four federal financial institution supervisory agencies (the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, and the Office of the Comptroller of the Currency) issued a joint statement encouraging banks (i.e., banks, savings associations, credit unions, and foreign banks) “to consider, evaluate, and, where appropriate, responsibly implement innovative approaches to meet their Bank Secrecy Act/anti-money laundering (BSA/AML) compliance obligations, in order to further strengthen the financial system against illicit financial activity.”

The statement expressed the agencies’ recognition “that private sector innovation, including new ways of using existing tools or adopting new technologies, can help banks identify and report money laundering, terrorist financing, and other illicit financial activity by enhancing the effectiveness and efficiency of banks’ BSA/AML compliance programs.”  The statement declared that “[i]nnovation has the potential to augment aspects of banks’ BSA/AML compliance programs, such as risk identification, transaction monitoring, and suspicious activity reporting.”  In that regard, it cited examples of innovations that some banks have already undertaken:

Some banks are becoming increasingly sophisticated in their approaches to identifying suspicious activity, commensurate with their risk profiles, for example, by building or enhancing innovative internal financial intelligence units devoted to identifying complex and strategic illicit finance  vulnerabilities and threats. Some banks are also experimenting with artificial intelligence and digital identity technologies applicable to their BSA/AML compliance programs. These innovations and technologies can strengthen BSA/AML compliance approaches, as well as enhance transaction monitoring systems.

The statement specifically noted that the agencies “welcome these types of innovative approaches to further efforts to protect the financial system against illicit financial activity,” and that “these types of innovative approaches can maximize utilization of banks’ BSA/AML compliance resources.”

The statement offered an additional assurance that the agencies are committed to continued private-sector engagement with financial institutions, advocating early engagement with bank management to discuss pilot programs for innovative BSA/AML approaches.  Such early engagement, according to the statement, “can promote a better understanding of these approaches by the Agencies, as well as provide a means to discuss expectations regarding compliance and risk management,” and provide the agencies with the opportunity to “clarify supervisory expectations, as appropriate and necessary.”

The statement also made four points critical to assuring financial institutions that the agencies do not intend to whipsaw them by encouraging innovation but then effectively penalizing them for the consequences of innovation.  First, it said that they “will not penalize or criticize banks that maintain effective BSA/AML compliance programs commensurate with their risk profiles but choose not to pursue innovative approaches.”  Second, it stated that while they expected banks to maintain effective BSA/AML compliance programs, they “will not advocate a particular method or technology for banks to comply with BSA/AML requirements.”  Third, it indicated the agencies’ openness to banks’ conducting pilot programs, “in conjunction with existing BSA/AML processes, [as] an important means of testing and validating the effectiveness of innovative approaches,” and to providing feedback to the banks on such pilot programs.  In particular, it stated that “pilot programs in and of themselves should not subject banks to supervisory criticism even if the pilot programs ultimately prove unsuccessful.”  Fourth, it offered a measured assurance that “pilot programs that expose gaps in a BSA/AML compliance program will not necessarily result in supervisory action with respect to that program.”

Note:  This statement is the second result of the ongoing work of a working group that the United States Department of the Treasury’s Office of Terrorism and Financial Intelligence and the Federal depository institutions regulators formed with the aim of improving the effectiveness and efficiency of the BSA/AML regime.  Previously, on October 3, FinCEN and the agencies issued a joint interagency statement on sharing Bank Secrecy Act resources.

Both of these statements are welcome developments in two respects.  First, they provide some specific assurance that federal bank regulators are genuinely interested in positive engagement with the financial sector, and not merely regulation and enforcement.  Second, they appear not to be pressing for or insisting that financial institutions must adhere to particular types of innovative methods or technologies that regulators have previously endorsed.  Financial institutions should therefore take the December 3 statement at its word and develop innovative AML/CTF approaches that they believe make sense from a risk-based perspective, and test the strength of the regulators’ professed commitment to engagement with the financial sector.

Corruption Isn’t Cricket

During 2018, a number of media reports highlighted the reluctance or resistance of governing bodies overseeing various professional sports to confront the problem of corruption aggressively.  In soccer, FIFA – despite an undeniable history of corruption that reached the highest levels of the sport – saw fit to delete the word “corruption” from its code of ethics.   In professional tennis, it took an independent panel, after a two-year inquiry, to inform multiple tennis associations that a “tsunami” of match-fixing had reportedly become “endemic” across lower levels of the sport.  In Major League Baseball (MLB),  MLB severed its ties with the Liga Mexicana de Beisbol (LMB) because of professed concerns about corruption and fraud, but reportedly only “after years of complaints failed to effect change” in the LMB.  Subsequently, Sports Illustrated reported that the United States Department of Justice “has begun a sweeping probe into possible corruption tied to [MLB teams’] recruitment of international players, centered on potential violations of the Foreign Corrupt Practices Act.”

There are, however, other international sports associations that are demonstrating more timely and meaningful responses to corruption and fraud within their sports.  In professional cricket, after an Al-Jazeera journalist reported that evidence had been uncovered reflecting “corruption at the highest levels of cricket,” the general manager of International Cricket Council (ICC), the sport’s governing body, confirmed that the ICC “is investigating and called for the full co-operation of Al Jazeera.”

In professional badminton, the Badminton World Federation (BWF) recently upheld a ruling by its Ethics Hearing Panel that a former BWF Council member, Raj Gaya, would be banned from “performing any function in badminton for life” and be fined $50,000, based on his diversion and use of BWF funds for his personal benefit.  Gaya had told BWF officials that “he had used the funds for ‘badminton related expenses’, as well as ‘political reasons’ including ‘to get African people on his side’.”

Gaya is not the first individual this year that the BWF has severely sanctioned for corruption-related activities  In May 2018, in the first case of its kind for the BWF, the BWF banned two Malaysian players for 15 and 20 years respectively, and fined them $15,000 and $25,000 respectively, for match-fixing.

Such reports of demonstrated commitment to combating corruption are always welcome news.  It remains to be seen whether these latter sports will sustain that commitment or lapse into complacency over time as they grow in popularity and profitability.