Having failed to get the banks for anything else, can the authorities now get them for bribery?
We may soon find out. The Securities and Exchange Commission is looking at whether Goldman Sachs (GS) and other big banks broke bribery laws in dealing with Libya’s sovereign wealth fund.
The question in this case is whether Goldman violated the Foreign Corrupt Practices Act by initially agreeing to pay a fee that would have been passed along to a politically connected investment manager. The government has won a number of big FCPA cases in recent years (see chart, right), putting big companies on notice that it’s not a question to take lightly.
Goldman never actually paid the fee, which Goldman and the wealth fund discussed as they considered how the investment bank might make Libya whole for $1.3 billion in investment losses. Goldman’s savvy traders lost their sophisticated client an impressive 98% of its money in that instance, a performance that is likely to have lagged behind any number of investing benchmarks.
At one point in 2008 the sides discussed Libya clawing back its investments through a preferred stock investment in Goldman, which would have made Moammar Gadhafi a sort of Warren Buffett of the terrorist set. It would have been amusing to see Goldman spin that one as a win-win for everyone, though we never got the chance because talks broke down before a deal could be reached.
For now we will have to be content to see Goldman’s spin on the latest investigation of it, which by now is practically a daily occurrence. Goldman says in response to Thursday’s report in the Wall Street Journal that
We are confident that nothing we did or proposed was or could have been a breach of any rule or regulation. We retained outside counsel, as is our normal practice for any transaction, to ensure that we were compliant with all applicable rules. We are not aware of an SEC investigation into the matter but if there is one we will, of course, cooperate fully.
Oh, of course. But like the False Claims Act before it, the FCPA has emerged as a big stick for prosecutors seeking to crack down on corporate creeps. It is, admittedly, early to talk about prosecutors now, the SEC having the authority to bring only civil cases and all and having shown little inclination lately to bring even those against potential adversaries who have enough money to hire actual lawyers and stuff.
And it is far from clear that FCPA case against Goldman would result in nine-digit fines like the ones slapped recently on Siemens (SI) and the Kellogg Brown & Root unit of Halliburton (HAL).
Big FCPA fines tend to result from cases in which investigators find lax internal controls and active efforts to cover things up. Goldman’s statement, at least, indicates it is aware of those risks and believes it has managed them appropriately.
But then, a couple weeks ago we had no idea Goldman was best in class in the losing dictators’ money category. Who knows what sort of things will come out of the rich mahogany woodwork next.