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Wal-Mart Stores Inc. (WMT-N) shares were down in early trading on Monday following a weekend news report that the world's largest retailer stymied a probe into bribery at its Mexican affiliate, Wal-Mart de Mexico.
BMO Capital Markets analyst Wayne Hood said he expected the shares to trade down 1 to 2 percentage points, following a New York Times article on Saturday that said the company squelched an internal investigation into the bribery instead of broadening the probe.
The New York Times reported on Saturday that in September 2005, a senior Wal-Mart lawyer received an email from Sergio Cicero Zapata, a former executive at the company's largest foreign unit, Wal-Mart de Mexico, describing how the subsidiary had paid bribes to obtain permits to build stores in the country.
Wal-Mart sent investigators to Mexico City and found a paper trail of hundreds of suspect payments totaling more than $24 million US, but the company's leaders shut down the investigation and neglected to notify U.S. or Mexican law enforcement officials, the Times reported.
Legal and retail experts said that the allegations, if proven true, could badly hamper the company and its management for years. They could lead to a time-consuming global probe, substantial financial penalties paid to U.S. authorities, and the departure of some executives.
One option Wal-Mart will have is to remove some of those involved in the alleged bribery or cover-up as this could make it easier to reach an out-of-court settlement with the U.S. Department of Justice concerning possible breaches of the Foreign Corrupt Practices Act (FCPA), a U.S. law that forbids the payment of bribes to foreign government officials.
"Among the remedial actions is 'house cleaning' of anyone involved in illegal conduct," said Richard Cassin, a lawyer who is an expert on the FCPA and writes a blog about it. "If a company can say those involved in the questionable conduct are already gone, the DOJ is likely to look more favourably on the company and current management."
Wal-Mart said it had disclosed its probe to the DOJ and the Securities and Exchange Commission. The company also said it had taken steps at the Mexico unit, which is widely known as Walmex, to boost internal controls to make sure it was FCPA compliant.
But, according to the Times, the disclosure came only after it informed Wal-Mart that it was looking into the bribery allegations, years after the bribes were said to first come to management's attention.
A spokesman at the SEC said on Saturday he did not have any comment on the Times article. A DOJ spokeswoman declined to comment.
"Because of Wal-Mart's inaction for a very long time, it's likely its exposure is only going to increase," said Michael Koehler, a professor at ButlerUniversity and an expert on the FCPA.
According to the Times, current Wal-Mart Chief Executive Mike Duke and former CEO Lee Scott, who still sits on the company's board, were among senior executives allegedly aware of the situation. Duke was put in charge of Wal-Mart's international division in 2005.
The newspaper also reported that the whistleblower Cicero had identified former Walmex CEO Eduardo Castro-Wright as the driving force behind years of bribery.
Castro-Wright became CEO of Walmex in 2003 and was named CEO of Walmart US in 2005 and became a vice chairman in 2008. He led Wal-Mart's e-commerce business from 2010 until January this year, and is set to retire on July 1 after the company said last September that he was going to leave to spend more time with his family. He could not be reached for comment.
Wal-Mart said in a statement on Saturday it was "deeply concerned" about the allegations in the Times report. It said it began an investigation into its compliance with anti-bribery laws last autumn. The company declined to make Duke or any other executives available for comment, and said the investigation was continuing.
On Sunday, Wal-Mart spokesman David Tovar said Duke had instructed the company to conduct a worldwide FCPA compliance review in March 2011.
"Mike is fully supportive of the independent investigation being conducted in Mexico with oversight by the Audit Committee, including ensuring that all resources necessary are available to pursue the independent investigation aggressively," Tovar said.
On Friday, Walmex announced that one executive named the next day in the Times report, its general counsel and secretary to the board Jose Luis Rodriguezmacedo, had been assigned to other duties. He was removed from his role "in the interest of the investigation," Walmex spokesman Antonio Ocaranza said in an email, adding that he could not give further details about Rodriguezmacedo's status at Walmex. Calls to Rodriguezmacedo were referred to the spokesman.
COSTLY AND FAR-REACHING
Experts in bribery laws said Wal-Mart will be forced to devote millions of dollars and enormous amounts of manpower to its internal investigation. In many FCPA cases involving large companies, they do a large part of the investigation themselves and then hand the results over to the authorities.
"This is very likely to last two to four years for Walmart. These worldwide investigations tend to take two to four years in the normal course of business; it simply takes time," said Koehler.
Cassin said Wal-Mart faces an uphill battle to convince U.S. regulators that its problems are confined to Mexico. The U.S. retailer also has major operations in the UK, Brazil, Japan, China and Canada, and it is also seeking to expand rapidly in emerging markets such as India and parts of Africa.
"Before any resolution with U.S. authorities is possible, the company has to look under every stone for possible corruption. Are there any similar issues in China or other countries? That's what U.S. authorities will want to know. Wal-Mart's shareholders will be asking the same question," said Cassin.
The allegations could prove a huge problem for Wal-Mart if proven true, said Deutsche Bank retail analyst Charles Grom. "It would put a broadside in the growth engine of the company," he said. "Unlike prior bad PR stories in recent years, this will be a material distraction for Wal-Mart on multiple fronts."
Some retail experts said they thought that Wal-Mart would be unlikely to sacrifice Duke in the investigation and any related talks over a settlement with the government.
"I don't get the sense that Mike Duke's going to lose his job over this," said Joseph Feldman, senior retail analyst at Telsey Advisory Group. "I think that they'll try to put the spin on it that they have been putting on it - that it happened years ago, they rooted it out and it doesn't happen anymore."
The company's corporate structure may also reduce the chances of outside pressure from shareholder activists and others leading to drastic changes in the executive suite. The family of Wal-Mart founder Sam Walton owns nearly 50 percent of the shares and Walton's eldest son, S. Robson (Rob) Walton, is chairman, and his younger brother Jim is also on the board.
According to the Times, Rob Walton, Duke and Scott also had received an anonymous email in January 2006 saying Wal-Mart de Mexico's top real estate executives were receiving kickbacks from construction companies.
Wal-Mart, which employs 2.2 million people and runs more than 10,000 stores around the world, is often targeted by labour and community activists who argue that it underpays its workers and its sprawling stores undercut smaller shops, often putting them out of business. It has fought hard to improve its image in recent years with a number of campaigns, including one to make its operations more environmentally friendly.
Wal-Mart executives have, though, been active in a lobbying group that is pushing to scale back the FCPA. A 2010 tax return for the U.S. Chamber Institute for Legal Reform lists Jeff Gearhart, Wal-Mart's general counsel since 2009, and Thomas Hyde, who retired in August 2010 as Wal-Mart corporate secretary, as two of 40 people who served as board members.
The board includes top lawyers and executives from other major corporations. Dow Chemical Co, Exxon Mobil Corp and State Farm Insurance each had two people among the 40 listed board members during 2010.
The U.S. Chamber Institute for Legal Reform is associated with the U.S. Chamber of Commerce, the largest business lobbying organization in Washington, D.C. It wants lawmakers to make several changes to the corruption law, for example by adding a provision that would protect a corporation from liability if one of its employees circumvented compliance measures.