The Perils of an American Executive Working in Russia
Doing the right thing can come at a terrible price, especially if you do business in Russia. Just ask Paul Ostling, a civic spirited corporate executive who has been shoved into the limelight -- and the courtroom -- for choices he made as an executive in Moscow.
Ostling’s story goes back to 2012, when Brunswick Rail, a Russian company with an offshore parent, appointed Ostling as chairman. In 2015, after Brunswick terminated its CEO, Ostling stepped in and took over as top executive to help the company through an extremely challenging market environment. Among other things, Ostling worked to guide the company through a restructuring of its debts.
Brunswick operates 25,000 rail cars, but the company was failing financially. It has outstanding public Eurobond debt of $600 million and owed another $100 million on a mezzanine loan as well as other debt and sale-leasebacks that together totaled more than $750 million. Brunswick’s bonds were downgraded to Ca by Moody’s, which means they are a highly speculative investment.
Brunswick’s bonds are traded on the London Stock Exchange and were covered by a filing made in 2012 with the U.S. Securities & Exchange Commission. Brunswick may be a privately held Russian company, but it has an active, international profile since its debt is held globally, including by major American institutions. It touted itself as being well-governed.
But Brunswick wasn’t playing by the rules, according to a complaint by Ostling in a federal court in Connecticut. He alleges that Brunswick was attempting to defraud its stakeholders. He says that the company publicly misstated its projections and withheld material information from its lenders and shareholders. Ostling blew the whistle on Brunswick, filing whistleblower complaints with the Securities and Exchange Commission and the United Kingdom’s Financial Conduct Authority.
When Brunswick’s directors who were in on the efforts that Ostling warned about learned that Ostling and another director would not support their tactics, they got more than angry; they ousted Ostling and the other director from the board. They then retaliated against Ostling for disclosing their scheme by suing him, first in California. When Ostling was dismissed from that suit, they sued him in Connecticut for what Brunswick says was giving away trade secrets.
Ostling denies those accusations and says in his filings that he was merely doing what he had the right and obligation to do, which was to keep stakeholders informed. Acting in accordance with ethical standards is what Ostling built his career on.
He won the Russia Independent Director of the Year Award on the recommendation of two companies for which he served as audit committee chairman: Uralkali, the world’s largest potash miner, and Mobile TeleSystems, Russia’s largest mobile operator. He was a member of Ernst & Young Global’s Executive Council for 12 years. Regulations and reporting requirements were part of Ostling’s daily remit. He also knows something about duty as president of the Boy Scouts of America Transatlantic Council, which helps make scouting available to U.S. citizens and their families in Europe, the Middle East, and North Africa, including and especially U.S. military families.
Ostling’s filings allege that Brunswick had illegally retaliated against him as a whistleblower in violation of the Dodd-Frank law. Dodd-Frank governs how a company is supposed to treat someone who tells the truth, and it looks like Brunswick may have come up short. Dodd-Frank expressly bars retaliation against a whistleblower, which Ostling clearly has a strong case for being.
Brunswick’s suit against Ostling is a cautionary tale, one that should leave American business executives asking whether it is worth the risk of venturing outside the comfort zone of the West to expose themselves to potential liability in shaky markets like Russia. Not many news outlets have taken notice of the Ostling case in court yet, but they will soon. The outcome of Brunswick’s lawsuit will likely be felt far beyond the Russian border.