美商的一個訴訟案曝露了中國商場的腐敗。
Bribery case exposes corruption in China
By David Barboza
The New York Times
The American company said it was a legitimate cost of doing business in China, the price the company had to pay to help secure a huge software contract with one of the country’s biggest banks.
But a Chinese company that said it got pushed out of the deal tells a different story, one in which the American company secretly funneled money to powerful Chinese government banking officials to ensure the lucrative business contract.
According to a lawsuit filed this year in a U.S. District Court in Florida, Fidelity Information Services, a U.S. software company, paid for Chinese banking officials and their family members to take vacations in Hong Kong, Paris, Rome, Las Vegas and Pebble Beach, California.
The suit contends that Fidelity arranged the trips through a consultant in China, who was reimbursed for giving the Chinese bankers and their families an array of gifts, including expensive Sony cameras, outfits from Versace and Burberry and perhaps even a $330,000 luxury apartment in Shanghai.
Grace & Digital Information Technology, a Beijing consulting firm, filed the lawsuit. It accuses Fidelity, based in Jacksonville, Florida, of trying to avoid paying $58 million in consulting fees after Grace & Digital helped it win a series of software contracts worth about $176 million with China Construction Bank, or CCB, one of China’s largest, in 2001.
After the CCB chairman, Wang Xeubing, was fired in 2002 amid corruption allegations, those contracts were suspended. The lawsuit claims that Fidelity then dumped Grace & Digital and hired another middleman, who was a close friend of Wang’s successor, Zhang Enzhao. It alleges that Fidelity made large cash payments to the middleman, who then passed money and gifts on to Zhang, other bank officials and their family members, possibly in violation of the Foreign Corrupt Practices Act of 1977.
That U.S. law forbids American companies from paying foreign government officials to win or influence business deals outside the United States.
"This was bribery," said John Zhang, a lawyer working for Grace & Digital. "They were paying bribes to government officials and their families. What else could those payments be?"
Lawyers representing Fidelity, a division of Fidelity National Financial, strongly disputed the allegations, saying that company executives simply reimbursed legitimate business expenses and that Fidelity never violated its contracts or the Foreign Corrupt Practices Act.
"The Justice Department says paying for typical business expenses is not against the law," said David Shapiro, a lawyer for Boies & Schiller, the firm that is defending Fidelity. "If the golf game is inappropriate, most of the companies doing business in this country are engaged in inappropriate activity."
But in government filings this year, Fidelity said that the U.S. Justice Department and the Securities & Exchange Commission had been looking into the allegations about possible violations of the Foreign Corrupt Practices Act.
Three weeks ago, a Beijing court sentenced Zhang Enzhao, 60, to 15 years in prison for accepting more than $500,000 in gifts and bribes, including gifts that came from a consultant who worked for Fidelity, as well as for IBM, NCR and Hitachi, according to 21st Century Business Herald, a Chinese business publication.
None of the companies has been charged with any crimes.
Whether or not the lawsuit brought by Grace & Digital stands up in court, the case could prove enormously embarrassing for the companies involved. And perhaps more important, the case may force other large American and European companies doing business in China to consider whether they are exposed to similar lawsuits or other dangers as they move operations and executives to China, a country where corruption is widely seen as endemic.
The case began in December 2004, when Grace & Digital filed suit against Fidelity in Superior Court in California, alleging in its filing that Zhang, then the CCB chairman, had been paid a $1 million bribe.
The case was dismissed after a judge ruled that he did not have jurisdiction. Grace & Digital refiled the suit in Florida.
In March 2005, after reports about the lawsuit spread, Zhang stepped down as CCB chairman for "personal reasons," the bank said at the time. The Chinese police later detained him, just months ahead of the huge bank’s planned initial public offering.
A new chairman was appointed and CCB went ahead with its public listing, which raised more than $9 billion in October 2005 in the world’s biggest stock offering of that year.
In court filings, lawyers for Grace & Digital said that they had obtained copies of e-mail messages and records showing that Fidelity made a $1 million payment to a Hong Kong company called Prosten Technologies. A Chinese consultant named Zou Jianhua, who was a close friend of Zhang’s, represented that company at the time.
Zou, the filings say, submitted about $170,000 in expenses that were reimbursed by Fidelity for an array of gifts, hotels, shopping sprees and entertainment. For instance, in May 2002, the suit says, a Fidelity executive e-mailed another company executive saying that the CCB chairman was interested in playing golf at "Cobble Beach," apparently meaning Pebble Beach.
Soon after, Fidelity paid for Zhang’s hotel, car services and greens fees during a stay at Pebble Beach, California.
And in October 2004, after the chairman expressed interest in seeing Florida, the lawsuit says Fidelity sent its corporate jet to fly Zhang from San Francisco, which he was visiting, to its headquarters in Jacksonville, Florida.
The lawsuit also alleges that Fidelity reimbursed Zhang’s wife and son for airfare and hotels in China and the United States. Fidelity also paid for the son’s tennis club fees in Shanghai and golfing excursions in Shenzhen, and for the daughter of CCB’s chief information officer to travel to Europe.
Zou, the consultant, accompanied the bank chairman’s son to Las Vegas and also was on the European trip of the chief information officer’s daughter.
John Zhang, the lawyer who is representing Grace & Digital and works for the firm Greenberg & Traurig, called the trips "payoffs" to the family of the banking executives and said that among the expenses reimbursed were costs for luxury goods from Dunhill, Versace, Burberry and Mont Blanc, and for at least nine Sony and Canon cameras bought in Hong Kong.
"What kind of business trips are these?" John Zhang asked.
Boise & Schiller’s lawyers countered that "paying for a golf game is not a bribe," and that entertaining government officials is proper promotional activity.
CCB executives have refused to comment on the case, saying it was a personal matter involving Zhang Enzhao.
Citing court documents in the case, Bloomberg News reported that the Beijing No.1 Intermediate Court verdict said that IBM had paid $225,000 to Success Century Technology, a company registered in Hong Kong by Zou, who was named by the government as one of three businessmen who had bribed Zhang.
International Business Machines released a statement this month saying: "IBM has been unable to access the court documentation regarding this case, and therefore cannot comment on the allegations. IBM’s Business Conduct Guidelines, to which IBM employees in China certify annually, require IBM employees to comply with all laws and regulations that apply to IBM’s business worldwide. The Guidelines also specifically prohibit bribery of any kind."
The statement went on: "We have turned this matter over to our legal team, who are investigating the allegations."
Reporters from Caijing, a Chinese business magazine, and 21st Century Business Herald say they received special access to the Beijing court’s documents in the bribery case. The documents show, they say, that Zhang accepted large gifts and bribes from the three Chinese businessmen in exchange for helping them secure large loans or software contracts.
The Beijing court documents also show that Zou met with executives from IBM, NCR and Hitachi and that he recommended Hong Kong Hitachi as an equipment supplier to Zhang and CCB.
The documents did not name Fidelity, though Zou worked as a paid consultant for Fidelity between 2002 and 2005.
NCR, a U.S. company based in Ohio, said in a statement: "Under our marketing agent agreement with Zou, we required him to conduct business activities in a lawful manner. NCR maintains a clear and stringent code of conduct that requires the highest ethical standards and compliance with the local laws in all business dealings."
Hitachi, in its own statement, said the case was under investigation by the company and "according to the internal audit, up to now, we find no connection between Hitachi Data Systems and Zhang."
Gao Zicheng, a lawyer who represented Zhang in court, said his client had admitted to mistakes.
"Zhang Enzhao said that as a government official he shouldn’t have received money from friends," Gao said, but he declined to comment more specifically on the Fidelity case.
In its Florida filing, Grace & Digital alleges that Fidelity made a $1 million payment to Zou’s company and that part of that money was funneled to Zhang. Zou’s "straw man company" received $1.05 million just before it gave a Shanghai apartment to Zhang, according to John Zhang, the lawyer for Grace & Digital.
Lawyers for Fidelity argue that Grace & Digital helped secure software contracts worth $176 million in 2000, when Wang Xuebing was the chairman of CCB. Wang was fired in January 2002, following accusations that he had accepted bribes during an earlier tenure at another large state-owned bank, the Bank of China. He was later jailed.
After Wang’s departure, the government suspended the contracts. Zou was recommended to Fidelity by IBM and proved instrumental in helping secure a new deal 18 months later, Fidelity’s lawyers say. Zou’s company, Prosten Technologies, was allegedly paid $1 million for his services.
But Prosten denies that Zou ever worked for the company. An individual who picked up the phone at the company’s Hong Kong headquarters said Zou had never worked there.
As for bribery, Shapiro, Fidelity’s lawyer, said, "It’s only bribery if he promised to do it in exchange for something."
But Patrick Norton, a lawyer at O’Melveny & Myers in Washington and an expert on the Foreign Corrupt Practices Act, says Chinese government officials and officers and employees of state-owned companies were likely to be covered by the law.
While some promotional activities may be allowed, Norton said, "The operative language in the statute is you can’t provide a government official anything of value."
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