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Issues To Consider From The Vantage Drilling Enforcement Action

Issues

This previous post went in-depth into the rather unusual Vantage Drilling Foreign Corrupt Practices Act enforcement action and this post continues the analysis by highlighting additional issues to consider.

Timeline

As highlighted here, in July 2015 (or shortly thereafter) Vantage Drilling voluntarily disclosed to the DOJ/SEC. Thus, from start to finish the company’s FCPA scrutiny lasted approximately 3.5 years. While this is below recent averages of approximately 4.5 years, it is still too long for FCPA scrutiny to last particularly since Vantage Drilling, in the words of the SEC:

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Friday Roundup

Roundup

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

Funny

According to the FCPA Blog, there is “nothing too complicated or expensive” about FCPA compliance.

That’s funny because on a daily basis FCPA Blog content is flanked by approximately 20 blinking and flashing ads from FCPA Inc. participants.

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Inability To Pay

inabilitypay

As highlighted in this post, the $2 million settlement amount in the recent Transport Logistics International enforcement action could have been much higher as the DOJ and the company agreed “based on the application of the Sentencing Guidelines, that the appropriate criminal penalty [was] $21,375,000.” However, as stated in the resolution documents, the DOJ “with the assistance of a forensic accounting expert, conducted an independent inability to pay analysis, [and] it was determined that a penalty greater than $2 million would substantially jeopardize the continued viability of the Company.”

According to some, this “appears to be a recent trend,” and “in prior years, the DOJ rarely cited a company’s inability to pay as a factor for a particular fine.” However, like much FCPA commentary these comments lack an appreciation for history (including not too distant history) because as highlighted below the “inability to pay” dynamic in the TLI matter is not a recent trend and “inability to pay” determinations, as previously highlighted in FCPA Professor posts, have been made in several FCPA enforcement actions going back several years (in addition to more recent examples involving SBM Offshore and Odebrecht).

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