I have written about the business responses to anti-corruption laws such as the Foreign Corrupt Practices Act, and anti-corruption enforcements actions such as we currently see in the ongoing FIFA indictment and investigation. I believe that the more business responses we see to these legal issues, the more wide-ranging anti-corruption compliance will be because it will become a part of the business fabric for parties and there counter-parties.
Yet other business responses can drive anti-corruption compliance as well. Obviously a lawsuit for unfair competition is one mechanism, if a competitor can prove it lost a business opportunity due to the illegal bribery and corruption of a contract winner. While any settlement for FCPA or U.K. Bribery Act violations would most probably lay out the operative facts of the illegal conduct, due to the length of most investigations the applicable two- or four-year statute of limitations for bringing such a civil claim would probably run longer before these facts were made public.
But another business side mechanism could drive anti-corruption compliance forward. Obviously if a company is under a FCPA or Bribery Act investigation, the stock price could take a hit. One of the credit rating agencies could lower a company’s overall credit rating, driving up the cost of borrowing. Recently the Financial Times reported on another type of business response: The short seller Muddy Waters publicly released a letter it sent to the board of Swedish telecom company TeliaSonera, where Muddy Waters accused the company of under-reporting the scope of its bribery payments in Eurasian and Nepalese operations.
The letter stated in part: “It appears that TeliaSonera made corrupt payments in Uzbekistan exceeding SEK 3.1 billion (US$380 million). Uzbekistan appears to be only the tip of the iceberg. We estimate—perhaps conservatively—that TeliaSonera could have made corrupt payments throughout its Eurasia and Nepal operations that exceed SEK 17 billion (US$2.1 billion). In addition, TeliaSonera is potentially obligated to make additional payment to a problematic partner in Azerbaijan of up to SEK 7.6 billion (US$934.5 million).”
For those of you keeping score at home, that is a whooping $2.6 billion in alleged bribery payments and another $934 million due a “problematic” third party representative. The letter included no evidence to show how these numbers were derived.
This is a new business response to corruption. Now companies need to be aware of market investors not simply sanctioning a company for engaging in bribery and corruption, but even making money from it. Coincidently, TeliaSonera’s shares fell 6 percent on the morning Muddy Water’s letter was released.