January 20, 2017
In recent weeks, the U.S. has brought Foreign Corrupt Practices Act enforcement actions against Brazilian companies based in part on conduct with Brazilian politicians and party parties and another enforcement action against a Chilean company based on its conduct with Chilean politicians and party parties. (See here and here).
FCPA enforcement actions frequently include allegations about “golf in the morning and beer drinking in the evening,” expensive bottles of wine, spa and sauna treatments, charitable contributions or internship and hiring practices all involving alleged “foreign officials.”
Bribery, the U.S. government says, and confidently proclaims “we in the United States are in a unique position to spread the gospel of anti-corruption” and that FCPA enforcement ensures not only that the United States “is on the right side of history, but also that it has a hand in advancing that history.”
Yet on inauguration day, when Washington, D.C. is awash in corporate money more so than a typical day, we really ought to pause and reflect.
In An Unusual Development, The DOJ Brings A $7 Million FCPA Enforcement Action Against Las Vegas Sands Nine Months After The SEC’s $9 Million Enforcement Action Based On The Same Conduct
January 20, 2017
Parallel DOJ and SEC Foreign Corrupt Practices Act enforcement actions against issuers based on the same core conduct are common. However, such actions are coordinated and announced on the same day.
In a highly unusual development, late yesterday the DOJ announced an FCPA action against Las Vegas based on the same core conduct at issue in the SEC’s April 2016 FCPA enforcement action against Las Vegas Sands. (See here and here prior posts).
Quite frankly, I can’t recall another instance of this happening.
But then again some strange things are happening in the final weeks and days of the Obama administration before existing DOJ officials exit. (See this Wall Street Journal article titled “Obama Administration Races To Finish Probes, Wring Payments From Firms” noting that in the past approximate week the U.S. has reached settlements worth approximately $20 billion).
Adding to the intrigue is that Sheldon Adelson (founder, chairman and chief executive officer of Las Vegas Sands) is a major Republican contributor.
January 19, 2017
In 2012, Orthofix International N.V. (“Orthofix”), a limited liability orthopedic medical device company formed under the law of Netherlands Antilles with administrative offices in Lewisville, Texas and common stock traded on Nasdaq, resolved a $7.4 million Foreign Corrupt Practices Act enforcement action ($2.2 million via a DOJ deferred prosecution agreement, and $5.2 million via a settled SEC civil complaint) based primarily on the conduct of its wholly-owned Mexican subsidiary.
In an enforcement action that was expected (see here for the August 2016 post highlighting how Orthofix International was poised to join the FCPA repeat offender club), the SEC announced yesterday that the company agreed to pay $6 million in disgorgement and penalties to settle FCPA books and records and internal controls findings “when its subsidiary in Brazil schemed to use high discounts and make improper payments through third-party commercial representatives and distributors to induce doctors under government employment to use Orthofix’s products.”
This is the second instance in the past week of a company resolving a second FCPA enforcement action in the span of approximately five years (see here for the prior post regarding Zimmer Biomet).
No U.S. Nexus, No Problem As U.S. Brings $30.5 Million FCPA Enforcement Action Against Chilean Company In Relation To Its Conduct With Chilean Officials
January 18, 2017
Last week the DOJ and SEC announced (here and here) a $30.5 million Foreign Corrupt Practices Act enforcement action against Sociedad Quimica y Minera de Chile S.A. (SQM), a chemical and mining company based in Chile, in relation to its conduct with Chilean officials.
The enforcement action is rife with policy issues including the proper scope of FCPA enforcement given that there is no U.S. nexus alleged other than SQM having Series B shares, a form of American Depository Shares, listed on the New York Stock Exchange and thus being required to file periodic reports with the SEC.
The enforcement action included: (i) a DOJ criminal information charging SQM with violating the FCPA’s books and records and internal control provisions that was resolved via a deferred prosecution agreement in which the company agreed to pay a $15.5 million criminal penalty; and (ii) an SEC administrative order finding FCPA books and records and internal violations in which the company agreed to pay $15 million civil penalty.
January 17, 2017
For many years, the DOJ has advanced the policy position that DPAs and NPAs “have had a truly transformative effect on particular companies and, more generally, on corporate culture across the globe.” (See here for the prior post). Specifically in the Foreign Corrupt Practices Act context, the DOJ has stated that “the companies against which DPAs and NPAs have been brought have often undergone dramatic changes.” (See here for the prior post).
As highlighted here, in March 2012 Biomet resolved an FCPA enforcement action involving alleged conduct in Brazil, Argentina, and China by agreeing to pay approximately $22.8 million ($17.3 million via a DOJ deferred prosecution agreement, and $5.5 million via a settled SEC civil complaint).
Since then, FCPA Professor has chronicled (here, here and here) how Biomet’s DPA was extended, how the DOJ ultimately came to conclude that Biomet had breached its DPA based on subsequent improper conduct, and how an additional FCPA enforcement was expected.
Last week, the DOJ and SEC announced (here and here) the additional FCPA enforcement action against Zimmer Biomet Holdings (in 2015 Zimmer Holdings acquired Biomet) and Biomet. As highlighted below, a portion of the improper conduct involved the same distributor in Brazil that gave rise to the 2012 FCPA enforcement action.