Companies Corvicolombiana and Grupo Aval They sent a report to the country’s media to clarify what they consider to be incorrect interpretations and comments about the agreement they recently signed with the government. US Department of Justice (Ministry of Justice) and National Securities Commission in the same country (SEC, for its abbreviation in English).
Below, EL TIEMPO reproduces the full content of that writing, created in ABC format, with answers and clarifications from both companies to comments and questions arising from the circulating versions:
Under American law, what is the nature of the agreement with the Ministry of Justice?
A “deferred prosecution agreement” (known as a DPA) is a type of agreement between the Department of Justice (DOJ) and a company through which the DOJ brings criminal charges against the company, but agrees to suspend the prosecution of those charges in exchange for a period of time (generally three years) as long as The facility has agreed to meet certain requirements or conditions. If the company meets these conditions, the Justice Department will dismiss the charges. Entering into a DPA terminates the DOJ’s investigation regarding this particular company. In this case, within three years, the Department of Justice will dismiss the charge against Corvicolombiana (CFC) as long as CFC has complied with its DPA obligations during that period. These obligations include payment of a fine by the CFC (US$20.3 million) and compliance with certain periodic reporting and compliance requirements, as set out in the Darfur Peace Agreement, which is available to the public.
Since it is a deferred prosecution agreement, can it be said that today there is no severe criminal or criminal judgment or punishment against Corvicolombiana?
The Darfur Peace Agreement is not a criminal conviction. Within three years, the charge against Corvicolombiana will be dropped entirely by the Department of Justice if Corvicolombiana complies with its Darfur Peace Agreement obligations during that period. Under US law, Grupo Aval and Corvicolombiana have not been convicted of any crime, neither by the Department of Justice nor by the Securities and Exchange Commission.
Under American law, what is the nature of the agreement with the National Securities Commission?
A cease and desist order (an agreement signed with the SEC) is a type of agreement between the US Securities and Exchange Commission (known as the SEC) and a company, to complete an SEC investigation. It is a civil administrative order imposed by the SEC, not a document filed in court. The Order directs the Company to “cease and desist” (in other words, refrain) from committing or causing any violation described in the Order or from committing any future violations of the FCPA. In the cease and desist order in this case, there is no allegation that Grupo Aval or CFC are currently in violation of the Foreign Corrupt Practices Act. As set forth in the order, the conduct committed by the CFC CEO ended in 2016. Under US law, Grupo Aval and CFC have not been convicted of any crime, neither by the Department of Justice nor by the Securities and Exchange Commission.
Does the payment made on the occasion of the agreement with the SEC, strictly speaking, correspond to a penalty or fine, or is it attributable to an undeserved gain?
As part of the agreement negotiated with the Securities and Exchange Commission, Grupo Aval/Corvicolombiana agreed to earn a “dividend dividend” (dividends calculated according to US standards; a dividend is called “discrepancy” under US law) totaling $32.1 million. , plus interest of $8.1. Million dollars.
Did Grupo Aval and Corvicolombiana (CFC) admit in their agreements with US authorities to paying bribes to Colombian government officials?
The agreements with the Department of Justice (DOJ) and the SEC (National Securities Commission) do not contain any accusation of corrupt knowledge or corrupt intent against any officer, director or shareholder of Grupo Aval, nor against any officer, director or shareholder of Corficolombiana (CFC), Exception against the former CEO of Corvicolombiana.
Neither the Securities and Exchange Commission nor the Department of Justice has accused Grupo Aval of engaging in corruption. The only allegation brought by the SEC against Grupo Aval is that, as a result of the conduct of the former CFC Executive Director, Corficolombiana caused Grupo Aval to violate the books, records, and internal accounting controls provisions of the FCPA.
The allegations against Corvicolombiana consist of the fact that the former CFC Executive approved the corruption scheme led by Odebrecht through the Ruta del Sol Concessionaire (CRDS) and the Ruta del Sol Consortium (Consol) in connection with the addition of Ocaña-Gamarra. The facts mentioned in the decision documents include information provided by third parties to the US authorities in the context of their investigation into the conduct of the former CEO of Corvecolombiana; These facts have been described to Corvecolombiana by the Department of Justice and the Securities and Exchange Commission.
Under US law, employees of companies are their agents (under agency theory) and companies can be civilly, administratively, or criminally liable for the actions of their agents, including their employees. A former employee of CFC is considered under U.S. law to be an “agent” of CFC, and for this reason, CFC has been held liable to the Department of Justice and the Securities and Exchange Commission for the actions of this former employee.
There was no trial. The agreements concluded between Corvicolombiana, Grupo Aval and the American authorities were the result of a 5-year investigation.
Were bribes paid to public officials and/or presidential campaigns from Corvicolombiana and/or VidoCorvicolombiana?
One suffices to read the publicly available decisions to ascertain that the fictitious contracts used to pay bribes to public officials were paid exclusively by CRDS or Consol, vehicles controlled by Odebrecht, the majority partner with a 62% stake.
Did Grupo Aval and Corvicolombiana admit before the Department of Justice and the SEC the guilt of José Elias Melo?
This type of confession can only be made by the accused person. No one can acknowledge or admit a fact on behalf of a third party. It is a primary and universal rule of due process in any country. US law considers a former CFC employee to be a “client” of CFC, and for this reason, CFC has been held liable to the Department of Justice and the Securities and Exchange Commission for the allegations against this former employee. However, it is very important to emphasize that only he (the former official) can admit liability on his own behalf.
Did Grupo Aval/Los Sarmiento agree to pay the SEC and DOJ $1 million in exchange for getting them out of trouble?
GrupoAval/Los Sarmiento has never paid any money to be excluded from investigations in Colombia or abroad. Grupo Aval and CFC underwent a comprehensive 5-year investigation by US agencies; Accordingly, resolutions have been signed with the Department of Justice and the Securities and Exchange Commission, which contain no accusation of corrupt knowledge or corrupt intent against any officer, director or shareholder of Grupo Aval, nor any officer, director or shareholder of CFC, except against the previous. Executive Director of CFC. Corvicolombiana has assumed responsibility for the actions of the former CEO of Corvicolombiana.
In the United States, they cooperated and confessed, but here they did not cooperate and denied everything…
Since day one (January 17), Grupo Aval and Corvicolombiana have provided all their cooperation to the authorities in Colombia, responded to all requests for documents, declared where necessary and submitted to the Public Prosecutor’s Office numerous complaints under investigation in relation to the facts they presented. We have known each other since December 2016. With the exception of José Elias Melo, no officer, director or shareholder of Grupo Aval, nor any officer, director or shareholder of CFC, have been accused, as a result of the investigations conducted by the Public Prosecutor’s Office, of participating in the Odebrecht-led corruption scheme. . This position is consistent with the findings of the Department of Justice and Securities and Exchange Commission investigations. The DOJ and SEC decisions do not contain any accusation of knowing or corrupt intent against any officer, director, or stockholder of Grupo Aval, or any officer, director, or stockholder of CFC, other than a former CFC executive director.
We hope that the Attorney General’s Office will now investigate and send the people connected to the bribes mentioned in the DOJ and SEC decisions to prison…
The DOJ and SEC decisions do not name the specific names of the various contracts through which Odebrecht paid kickbacks from CRDS and Consol. However, these cases are known to the Public Prosecutor’s Office. To our knowledge, all Grupo Aval and CFC investigations related to this case have been closed.
José Elias Melo says Sarmientos and the Board of Directors participated/agreed on the terms of the proposal?
Note that at no point in his interview with Cambio did José Elias Melo say that neither Dr. Sarmiento nor the Junta knew of or approved of a bribe. What he says, and it is true, is that the terms of the tender offer were known by Sarmiento’s doctors and were approved by the relevant bodies. This statement has been distorted as “a new confession of José Elias Melo.”
* Corficolombiana and Grupo Aval belong to the trading company of which EL TIEMPO is part.