Mexican customs brokers paid bribes to help expedite international rail shipments for CHS Inc., the giant Inver Grove Heights-based agribusiness cooperative has admitted as part of an ongoing lawsuit.
CHS also confirmed possible violations of the Foreign Corrupt Practices Act to the federal Securities and Exchange Commission, acknowledging that its employees paid a “small number of reimbursements” to customs brokers for bribes they paid to Mexican government officials in 2014 and 2015. The payments involved the inspection of grain crossing the U.S.-Mexican border in rail cars.
The company said it is cooperating with federal investigators, adding that it is “unable at this time to predict when our government agencies’ review of these matters will be completed or what regulatory or other outcomes may result.”
The bribes represent the second breakdown in internal controls at CHS to come to light in recent months.
A year ago, CHS, a Fortune 100 company, reported that a freight trader at the company had intentionally inflated the value of the firm’s rail-freight contracts, helping to overstate the company’s profits by $190 million over four fiscal years. That led to the firing of the employee, a shake-up in the firm’s rail transportation division and an adjustment in CHS’ annual financial results.
The latest disclosures show how tempting it can be for companies and government officials on both sides of the border to engage in bribery. A 2016 investigation by the New York Times showed that almost 200 employees and contract workers of the U.S. Department of Homeland Security took nearly $15 million in bribes over 10 years.
Details of the bribes paid by CHS emerged in a lawsuit filed this year in Dakota County by former employee Dawn Harvieux, alleging that CHS violated the Minnesota Whistleblower Act by firing her because she reported failings in the company’s “anti-bribery and internal controls” system.
CHS has moved to dismiss the lawsuit, arguing that Harvieux failed to notice or alert upper management that bribery was built into a contract she helped put together. The company also contends that Harvieux is not a whistleblower because an internal investigation into the bribes was launched before she reported anything.
CHS regularly ships grain to Mexico, where the shipments face border inspections for contamination. If a rail car is deemed “contaminated” by bugs, for example, it is detained and not allowed to cross until it is fumigated, costing CHS time and money.
Harvieux, an analyst in CHS’ grain marketing division, worked on a contract in 2017 to formalize fees with customs brokers to help move grain shipments over the border. The agreement, which she worked on with several other CHS employees, included an option that called for CHS to pay a $2,000 “re-inspection fee” for a second inspection of any rail cars held for possible contamination. If a rail car passed the second inspection, the fumigation cost could be avoided.
CHS said its compliance department determined that the “re-inspection fee” was actually a bribe aimed at persuading Mexican officials to release detained rail cars.
Much of the court case centers on whether Harvieux was wrongfully fired. Her attorneys declined to comment on Friday.
In her suit, Harvieux said a contract that provided for bribing Mexican officials was approved by John Griffith, senior vice president for global grain marketing and renewable fuels for CHS. She said that she verified a translation of proposed rate information from two Mexican customs brokerages for the contract and vetted the brokerages through a CHS vetting system.
In the spring of 2017, she said, she “hand delivered” the agreements, including the rate information that spelled out the “re-inspection fee,” to Griffith, who later signed them.
Soon after, Harvieux said in the suit, Jessica Cossalter, director of global trade programs and compliance at CHS, told Harvieux that one of the brokerages was not approved by CHS compliance and that one of them employed a person with a serious criminal record in Mexico.
Harvieux said she was interviewed twice and cooperated fully in an internal investigation. She was fired in February 2018, along with two other employees who worked as Latin American marketing managers.
Harvieux said in her lawsuit that one of the other fired employees told Griffith that CHS was aware that one or more Mexican customs brokers had been using CHS funds to pay bribes. Griffith’s response, according to Harvieux’s suit: “There is no smoking gun here. Don’t talk about this again.”
CHS, in its motion to dismiss the suit, said that its investigation was launched independent of Harvieux and that she never blew a whistle or reported a red flag. The company argued that she “did not critically review” the fee schedules she worked on, but instead only verified the Spanish-to-English translations of the contract and failed to identify the fact that the “re-inspection fee” was a bribe.
“After apparently concluding that her only role as an export analyst in reviewing contracts with proposed Mexican customs agents was to ensure they were properly translated, Harvieux reported nothing and simply asked Griffith to sign a contract that would have required CHS to reimburse the agent for the payment of bribes,” CHS said in a court filing.
Once CHS realized the “re-inspection fee” set out in the contract was a bribe, it prohibited use of that customs broker, the company said in the filing.
CHS officials declined to comment, citing the pending litigation. In a statement, CHS said it “remains committed to operating in compliance with laws that apply to our business.”