IAG December 2015

Blast
from the Past
“I love Kazuo Okada as much as any man that
I’ve ever met in my life,” Steve Wynn once
proclaimed. “And there is hardly anything that
I won’t do for him.”
he would direct the FBI for almost seven years, continuing in the
post for five months more after George W. Bush took office. After
leaving the government he represented Prince Bandar bin Sultan, the
former Saudi ambassador to the US, in the al-Yamameh arms-foroil
scandal involving Europe’s largest defense contractor, UK-based
BAE Systems. In 2010, BAE would forfeit US$400 million in one of
the largest criminal prosecutions in FCPA history. That same year,
as part of the fourth-largest FCPA settlement up to that time, Mr
Freeh was appointed to monitor Daimler AG’s compliance with the
Act after the giant automaker and three subsidiaries agreed to pay
The Foreign Corrupt Practices Act is being
applied more vigorously now than at any time
in its history. Almost half of all enforcement
actions initiated under it have occurred since
Barack Obama took office in 2009, more than
under any president going back to Jimmy
Carter, who signed the FCPA into law, more
than under the 16 years of the Bush and
Clinton administrations combined.
$93.6 million in fines and hand over $91.4 million in profits to settle
alleged violations. In 2011, he served as an independent investigator
for FIFA in the Mohamed bin Hammam bribery scandal.
While the SEC was poring over Mr Okada’s January petition, Mr
Freeh was briefing Wynn’s Compliance Committee on what he’d
learned about the Philippines. His final interview, with Mr Okada and
Mr Okada’s US counsel, took place in Tokyo on 15th February. On the
18th, he gave what Wynn describes as a “detailed presentation” to the
board and provided copies of his final report, which concluded that
Mr Okada’s conduct “constituted prima facie evidence of violations
of the Foreign Corrupt Practices Act”. It was on that day, apparently,
that Wynn issued a 10-year IOU to buy back Aruze USA’s shares,
amounting to a 19.66% stake in the company, at a 30% discount to
their market value at the time. The next day, the company filed its
suit in Nevada District Court in Las Vegas charging the man who had
helped bankroll Wynn’s empire with “breach of fiduciary trust”. Mr
Okada was later booted off the board of Wynn Macau. He is still on
the board of Wynn Resorts, his seat protected by Nevada law unless
the shareholders vote to remove him.
“I love Kazuo Okada as much as any man that I’ve ever met in my
life,” Steve Wynn once proclaimed. “And there is hardly anything that
I won’t do for him.”
Obviously, that stopped at Luzon’s steamy shores.
The “Big Stick”
On 24th February, the Financial Times reported that a lawyer for Wynn
Resorts who had served with the US Attorney’s Office in Los Angeles
had flown to Washington to meet with criminal prosecutors at the
Department of Justice. It was not known at the time if the department
has joined the SEC in looking into the company’s affairs. It is still not
known.
Writing that month in his “White Collar Watch” column in The
New York Times, former Justice Department prosecutor and law
professor Peter J. Henning suggested that Wynn’s suit against
Mr Okada “means the Justice Department and the Securities and
Exchange Commission will be scouring the company’s books for
possible violations, a front that neither side can control.”
“By invoking the specter of overseas bribery, Wynn has effectively
opened itself up to a wide-ranging federal investigation of its dealings
in Macau and elsewhere. Combined with the lawsuit it filed against
Mr Okada, the company most likely will face soaring legal costs over
the next year or two as it deals with the fallout from the dispute.”
Mike Koehler, a law professor with Southern Illinois University
and a blogger on all things FCPA, calls this battle of the billionaires
“one of the strangest instances of FCPA scrutiny one can imagine”.
“The Freeh report puts the DOJ (and perhaps even the SEC given
Okada’s membership on the Wynn Board) in a difficult position.
How can the agencies not investigate the conduct at issue when the
December 2015 inside asian gaming 37