The term selective prosecution is a legal term of art with rather exacting factors. This post is not about the legal term of art selective prosecution, but rather selective prosecution as a practical matter, in order words, in layman terms.
As highlighted in the below chart, there have been eight corporate Foreign Corrupt Practices Act enforcement actions based largely on alleged improper payments to Nigerian officials in connection with Nigeria’s Temporary Import Process (TIP) for oil and gas rigs.
|Company||Settlement Amount||Related Individual Actions|
|Panalpina||$81.9 million $70.6 (DOJ) $11.3 (SEC)||No|
|Pride Int’l||$56.2 million $32.6 (DOJ) $23.5 (SEC)||No|
|Royal Dutch Shell||$48.1 million $30 (DOJ) $18.1 (SEC)||No|
|Transocean||$20.7 million $13.4 (DOJ) $7.2 (SEC)||No|
|Parker Drilling||$15.9 million $11.8 (DOJ) $4.1 (SEC)||No|
|Tidewater||$15.7 million $7.4 (DOJ) $8.3 (SEC)||No|
|Noble Corp.||$8.2 million $2.6 (DOJ) $5.6 (SEC)||Yes|
|GlobalSantaFe||$5.9 million $5.9 (SEC)||No|
As indicated in the above chart, the enforcement agencies collected approximately $253 million in the enforcement actions. (Note certain of the enforcement actions also alleged other improper payments to Nigerian customs officials and, because of the “where else” question, certain of the enforcement actions also alleged improper payments in other countries as well).
To extent settlement amounts serve as a reasonable proxy for the severity of an FCPA enforcement action, the above chart highlights that among the TIP-related enforcement actions, the enforcement action against Noble Corp. was comparatively minor. This conclusion is further bolstered by the fact that among the TIP-related enforcement actions to involve a DOJ component, the Noble enforcement action was the only action to be resolved via a non-prosecution agreement.
Nevertheless, as highlighted by the above chart, the Noble enforcement action was the only TIP-related enforcement action to result in any related charges against individuals. In February 2012, the SEC charged Mark Jackson (Noble’s former CEO) and James Ruehlen (a current Noble executive) in a wide-ranging enforcement action charging violations of, among other things, the FCPA’s anti-bribery provisions and books and records and internal controls provisions.
This contemporaneous post flagged the SEC action as one to follow since the SEC has never been put to its burden of proof in an FCPA enforcement action. The post further noted that the FCPA’s facilitation payments exception was likely to be at issue and even highlighted the unusual nature of the DOJ’s NPA against Noble Corp. which, not once but twice, stated that the alleged payments at issue “would not constitute facilitation payments for routine government actions within the meaning of the FCPA.”
In an ironic twist, after the enforcement agencies collected more than $200 million in the TIP-related enforcement actions against risk averse corporate defendants, Jackson and Ruehlen did indeed put the SEC to its burden of proof and the court ruled that the SEC “must bear the burden of negating the facilitating payments exception” and that the “exception is best understood as a threshold requirement to pleading that a defendant acted ‘corruptly.’” (See here for the prior post).
The SEC, a law enforcement agency with merely a civil burden of proof, was never able to carry this burden and this was among other reasons why the SEC’s case against Jackson and Ruehlen failed – and yes – this is the only reasonable conclusion to be drawn from last week’s settlement (see here).
The above facts and circumstances from the many TIP-related enforcement actions should cause any reasonable observer to ask why Jackson and Ruehlen were singled out for prosecution by the SEC?
As will be explored in a future post that goes more in-depth into the SEC’s failed prosecution of Jackson and Ruehlen, the SEC’s case against the individuals was all the more curious given that Noble actually booked the TIP-related payments as facilitating payments (the SEC of course disagreed with this position) and given that – per the SEC’s own briefing in the matter – its charges were based on little more than a series of supposed inferences supported by little more than circumstantial evidence.