CORPORATE CRIME REPORTER
Criminal Bribery Plea? Bury It Late Friday
19
Corporate Crime Reporter 22(1), May 23, 2005
How do you bury a criminal bribery plea?
Release the details late in the afternoon on Friday.
That’s what the Justice Department press office did last Friday.
They put out a press release on 4:41 p.m. on Friday May 20, 2005 announcing
that a Chinese unit of a Los Angeles based medical products company had agreed
to plead guilty to bribing Chinese officials.
Most reporters were off for the weekend.
And the results showed.
There were very few stories in the mainstream press about the plea.
Nothing in the Wall Street Journal.
Nothing in the Washington Post.
Nothing in the New York Times.
Many corporate executives believe that it’s not possible to do business
in China without paying bribes.
But the Justice Department rarely charges U.S. companies with paying bribes
in China.
In fact, the case released last Friday was one of the first.
Federal prosecutors in Los Angeles charged DPC (Tianjin) Co. Ltd. – the
Chinese subsidiary of Los Angeles-based Diagnostic Products Corporation (DPC)
– with paying $1.6 million in bribes in the form of illegal “commissions”
to physicians and laboratory personnel at government-owned hospitals in the
People's Republic of China.
The company agreed to plead guilty to violating the Foreign Corrupt Practices
Act and will pay a $2 million criminal fine.
At the same time, the Securities and Exchange Commission ordered TDPC Tianjin's
parent company, Diagnostic Products Corporation, to cease and desist from violating
the anti-bribery law and to disgorge approximately $2.8 million in ill-gotten
gains – its net profit in the People's Republic of China for the period
of its misconduct – plus prejudgment interest.
Was the timing of the press release negotiated with defense counsel?
“The answer is no,” said Ira Raphaelson, a partner at O’Melveny
& Myers in Washington, D.C.
Raphaelson represented the company before the Justice Department.
“I’m not going to describe to you anything about the negotiations,”
he said. “Anything you would want to know about timing, you’d have
to ask the people who file documents. We don’t file documents.”
Generally, is that kind of thing negotiable?
“I’m not going to speak to generally,” Raphaelson said.
“The press release was issued very shortly after the information was filed
at U.S. District Court in Los Angeles, Friday afternoon,” said Justice
Department spokesman Bryan Sierra. “We won't comment here on negotiations
or discussions with defense counsel.”
Federal prosecutors in Los Angeles alleged that during most of the 1990s, DPC
Tianjin made cash payments to laboratory personnel and physicians employed in
certain hospitals in the People's Republic of China in exchange for agreements
that the hospitals would obtain DPC Tianjin's products and services.
This practice, authorized by DPC Tianjin's general manager, involved personnel
who were employed by hospitals owned by the legal authorities in the People's
Republic of China
and, thus, foreign officials as defined by the anti-bribery law, federal officials
alleged.
In most cases, the bribes were paid in cash and hand-delivered by DPC Tianjin
salespeople to the person who controlled purchasing decisions for the particular
hospital department, federal officials alleged.
DPC Tianjin recorded the payments on its books and records as "selling
expenses."
DPC Tianjin's general manager regularly prepared and submitted to Diagnostic
Products Corporation its financial statements, which contained its sales expenses.
The general manager also approved of the budgets for sales expenses of DPC Tianjin,
including the amounts DPC Tianjin intended to pay to the officials of the hospitals
in the following quarter or year.
The "commissions," typically between 3 percent and 10 percent of sales,
totaled approximately $1,623,326 from late 1991 through December 2002, and allowed
the company to earn approximately $2 million in profits from the sales, federal
officials alleged.
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