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Based On The Same Core Conduct Alleged In The 2018 Criminal Action, The SEC Also Brings Enforcement Action Against Former Goldman Executive Tim Leissner

As highlighted in this prior post [1], in November 2018 the DOJ announced a Foreign Corrupt Practices Act and related enforcement action against Tim Leissner (the former Southeast Asia Chairman at Goldman Sachs) and others associated with Goldman Sachs for paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.

Leissner pleaded guilty and was ordered to forfeit $43.7 million as a result of his crimes. As highlighted in this prior post [2], in March 2019 – based on the same core conduct – the Federal Reserve brought an enforcement action against Leissner in which he consented to a permanent ban from the banking industry and agreed to pay a $1.4 million fine.

Yesterday, the SEC returned to the same core action and announced [3] an FCPA enforcement action against Leissner. The action was largely ceremonial as the SEC’s order requires Leissner to pay disgorgement of $43.7 million which will be offset by the amounts paid pursuant to the forfeiture order in the parallel criminal action.

In summary fashion, the SEC’s order [4] states:

“This matter relates to a massive corruption scheme perpetrated by Leissner while acting as a senior executive of The Goldman Sachs Group, Inc. (“Goldman Sachs” or the “Company”). Leissner, in coordination with other Goldman Sachs senior executives, authorized and paid bribes and kickbacks to government officials in Malaysia and the Emirate of Abu Dhabi (“Abu Dhabi”) in order to secure lucrative business for Goldman Sachs. Leissner’s actions resulted in violations of the antibribery, books and records and circumvention of internal accounting controls provisions of the FCPA.

1Malaysia Development Berhad (“1MDB”) is a Malaysian state-owned and controlled investment fund created to pursue projects for the economic benefit of Malaysia and its people. Between approximately 2009 and 2014, as 1MDB raised capital to fund its projects, billions of dollars were diverted from 1MDB. The diverted funds included a substantial portion of the approximately $6.5 billion in capital that 1MDB raised in 2012 and 2013 through three bond offerings that it executed with Goldman Sachs (the “bond deals”). As part of the scheme, Leissner and others bribed government officials in Malaysia and in Abu Dhabi to obtain and retain lucrative business for Goldman Sachs, including the 2012 and 2013 bond deals, from which Goldman Sachs earned approximately $600 million.

Leissner willfully violated [the FCPA’s anti-bribery provisions] by directly participating in the bribery scheme. He also caused Goldman Sachs’s books and records to not, in reasonable detail, accurately or fairly reflect the transactions and dispositions of the company’s assets in violation [of the FCPA’s books and records provisions], and he willfully aided and abetted violations of [those provisions]. Additionally, Leissner …. knowingly circumvent[ed] what internal accounting controls Goldman Sachs had in place in order to both advance and conceal the corrupt scheme.”

In the SEC’s release, Charles Cain, (Chief of the SEC’s FCPA Unit) stated:

“Individual conduct lies at the heart of all bribery schemes. Here, Leissner abused his leadership role at Goldman Sachs by engaging in a massive bribery scheme targeting the highest levels of two foreign governments in order to bring in lucrative business to the firm and enrich himself.”

[5]