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Friday Roundup

Roundup

Quotable, scrutiny alerts and updates, and for the reading stack. It’s all here in the Friday roundup.

Quotable

Royal Dutch Shell resolved an FCPA enforcement action in 2010 concerning conduct in Nigeria. At present, the company is under FCPA scrutiny again for its business practices in Nigeria.

During a recent investor conference call, an analyst asked “in light of the various corruption cases that hit the oil sector, which seem to be more and more frequent, is there anything you think needs to be done better at the industry level to deal with violations of the FCPA?”

Royal Dutch CEO Ben van Beurden stated:

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Much Ado About…Little?

Wal-Mart

I didn’t come up with the headline, but I did participate in an extensive Q&A about Walmart’s FCPA scrutiny with Metropolitan Corporate Counsel. The Q&A was published in its most recent issue with the headline: “Much Ado About…Little? How a ‘garden variety’ FCPA investigation of Walmart grabbed the spotlight.”

The Q&A is republished below with permission.

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Issues To Consider From The Linde Enforcement Action

Issues

This previous post highlighted the DOJ’s recent $11.2 million declination with disgorgement and forfeiture against Linde for nearly decade-old conduct of an acquired entity.

This post continues the analysis by highlighting additional issues to consider.

Voluntary Disclosure

Nearly all decisions to voluntary disclose should be questioned (see this article for the reasons why), but Linde’s decision to voluntarily disclose should seriously be questioned.

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The First Corporate FCPA Enforcement Action In The Trump Era Is A $11.2 Million Declination With Disgorgement And Forfeiture Against Linde For Nearly Decade-Old Conduct Of An Acquired Entity

Linde

Last Friday the DOJ quietly updated its FCPA Pilot Program “declinations” page to include a June 16th letter from the Fraud Section and the U.S. Attorney’s Office (D.N.J.) to counsel for Linde North America Inc. and Linde Gas North America LLC.

The letter states that “consistent with the FCPA Pilot Program announced on April 5, 2016, the [DOJ is closing its] investigation of [Linde] and certain of their subsidiaries and affiliates concerning violations of the FCPA.”

Pursuant to the letter agreement, Linde agreed to disgorge or forfeit approximately $11.2 million. The Linde enforcement action is the first corporate FCPA enforcement action in the Trump era and is similar to the previous “declinations with disgorgement” enforcement actions released by the Obama DOJ in September 2016. (See here for a prior post).

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What Others Are Saying About Kokesh

Soapbox

Previous posts here, here and here concerned the Supreme Court’s recent benchslap of the SEC in Kokesh v. SEC. As previously noted, the Court unanimously held that disgorgement “in the securities-enforcement context is a ‘penalty’ within the meaning of [28 U.S.C.] 2462 and so disgorgement actions must be commenced within five years of the date the claim accrues.”

The case should impact SEC FCPA enforcement against issuers, but that first requires issuers not to roll over and play dead when faced with SEC scrutiny by agreeing to waive or toll statute of limitations.

This post highlights what others are saying about Kokesh.

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