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FCPA Gets Some Mentions During Oral Argument In Supreme Court Disgorgement Case

supremecourt

Because of how the DOJ and SEC have chosen to “enforce” the Foreign Corrupt Practices Act (that is largely through resolution vehicles that are not subject to any meaningful judicial scrutiny), the Supreme Court has never decided an FCPA case and, if this dynamic continues, likely will never decide an FCPA case.

Attempts were made in connection with the flawed 2014 U.S. v. Esquenazi “foreign official” decision (see here for my amicus brief urging the Supreme Court to accept the case including discussion of the above dynamic), but the Supreme Court ordinarily does not decide to hear a disputed legal issue after only one appellate court decision.

Given the above dynamics, the most FCPA observers can do is take note when the words “Foreign Corrupt Practices Act” are uttered in the Supreme Court and this occurred earlier this week during oral argument in SEC v. Kokesh, a non-FCPA case that is FCPA relevant because the issue before the Supreme Court is whether SEC disgorgement is subject to a five-year statute of limitations. (See prior posts here and here regarding the case and general issue as well as this FCPA Flash podcast in which Marc Bohn (Miller & Chevalier) discusses the case).

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Issues To Consider From The Zimmer Biomet Enforcement Action

Issues

This previous post went in-depth into the $30.4 million Foreign Corrupt Practices Act enforcement action against Zimmer Biomet announced on January 12th.

This post highlights additional issues to consider.

Repeat Offender

Biomet is not the first company to be a repeat FCPA criminal offender, just the latest. Other criminal examples include Aibel Group / Vetco entities and Marubeni (and there several other examples involving SEC civil violations such as Orthofix Int’l recently becoming a repeat FCPA offender). To learn more about these examples, see the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement.”

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FCPA Flash Podcast – A Conversation With Marc Bohn Regarding Disgorgement And Statute Of Limitations

FCPA Flash

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

Since the SEC first sought a disgorgement remedy in an FCPA enforcement action in 2004, disgorgement has become the dominant remedy sought by the SEC in corporate FCPA enforcement actions. This FCPA Flash episode is a conversation with Marc Bohn (Miller & Chevalier) in which he previews Kokesh v. SEC, a case recently accepted by the Supreme Court which presents the issue of whether the five-year statute of limitations in 28 U.S.C. § 2462 [the same limitations period at issue in FCPA civil matters] applies to claims for disgorgement. Although not an FCPA matter, Bohn discusses the potential impact of the Supreme Court’s decision on FCPA compliance, internal investigation, and enforcement issues. More broadly, the podcast also discusses statute of limitation issues given that many corporate FCPA enforcement actions involve “old” conduct.

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Issues To Consider From The Teva Enforcement Action

Issues

This previous post went in-depth into the $519 million Foreign Corrupt Practices Act enforcement action against Teva Pharmaecutical (the first-ever FCPA enforcement action against an Israeli company, by far the largest-ever FCPA enforcement action against a pharmaceutical company, and 4th largest FCPA settlement of all-time).

Set forth below are additional issues to consider.

Timeline

As highlighted in this prior post, Teva’s FCPA scrutiny began in July 2012. Thus from start to finish the company’s FCPA scrutiny lasted approximately 4.5 years. If the DOJ and SEC want the public to view its FCPA enforcement program as legitimate, credible, and effective, it must resolve instances of FCPA scrutiny much faster.

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Friday Roundup

Roundup

Guilty plea, scrutiny alerts and updates, SEC Director of Enforcement to leave, sound analysis of the JPMorgan enforcement action, and for the reading stack.

It’s all here in the Friday roundup.

Mebiame Guilty Plea

As highlighted in this previous post, in August 2016 the DOJ unsealed a criminal complaint charging Samuel Mebiame, a Gabonese national connected to Och-Ziff, with conspiracy to violate the FCPA’s anti-bribery provisions. In pertinent part, the complaint alleged that Mebiame, on behalf of Och-Ziff and related entities, routinely paid bribes to foreign government officials in at least each Niger, Guinea and Chad.”

Today, the DOJ announced that Mebiame pleaded guilty.

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