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DOJ Individual Actions: The Strange Public – Private Divide

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This recent post highlighted certain facts and figures regarding the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act offenses in 2018 and historically.

As highlighted in the prior post, DOJ FCPA individual enforcement actions are significantly skewed by a small handful of enforcement actions and the reality is, despite the DOJ’s rhetoric, approximately 80% of DOJ corporate enforcement actions since 2006 have not (at least yet) resulted in any related DOJ FCPA charges against company employees.

Another very interesting and significant picture emerges when analyzing actual DOJ individual FCPA prosecutions based on whether the individual charged was employed by or otherwise associated with an issuer or a private business organization.

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A Focus On DOJ Individual Actions

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This recent post focused on SEC individual FCPA actions in 2018 and historically and this post highlights certain facts and figures concerning the DOJ’s prosecution of individuals for Foreign Corrupt Practices Act violations in 2018 and historically.

As highlighted numerous times on FCPA Professor over the past several years, the DOJ frequently talks about the importance of individual criminal prosecutions.

In 2018, DOJ officials stated: “focusing on individual wrongdoers is an important aspect of the Department’s FCPA program” and as follows:

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A Focus On SEC Individual Actions

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This previous post highlighted various facts and figures from 2018 SEC FCPA enforcement actions against issuers.

As highlighted in the prior post, of the 14 corporate SEC FCPA enforcement actions in 2018, 1 (7%) has involved, at present, related SEC FCPA charges or findings against company employees.

In 2018, the SEC charged or found that three individuals violated the FCPA: Joo Hyun Bahn (associated with Colliers International Group); Patricio Contesse Gonazlez (associated with SQM which resolved an FCPA enforcement action in 2017); and Paul Margis (associated with Panasonic Avionics). (Note: the SEC’s enforcement action against Takeshi Uonaga (Panasonic Avionics former CFO) is not included in FCPA enforcement statistics for the simple reason that this was a revenue recognition matter and thus a non-FCPA FCPA enforcement action).

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Former Credit Suisse Bankers Charged With FCPA And Other Offenses In Connection With Various Mozambican Maritime Projects

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Yesterday this criminal indictment was unsealed charging former Credit Suisse bankers Andrew Pearse, Surjan Singh, and Detelina Subeva with conspiracy to violate the FCPA’s anti-bribery and internal controls provisions in connection with financing various Mozambican maritime projects.

In many respects, the action is similar to the November 2018 enforcement action against various individuals associated with Goldman Sachs in connection with Malaysia’s 1MDB fund (see here for the prior post).

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DOJ Adds Additional Defendant To Haiti Port Project Case

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As highlighted here, in August 2017 (in connection with an undercover sting) the DOJ announced criminal charges against Joseph Baptiste (a retired U.S. Army Colonel, practicing dentist, and former founder/president of a Maryland-based Haitian focused non-profit) “for his alleged role in a foreign bribery and money laundering scheme in connection with a planned $84 million port development project in Haiti” in an area known as Mole Saint Nicolas.

With Baptiste’s trial set to begin in early December, the DOJ returned to the same alleged core conduct by announcing additional criminal charges against Roger Boncy (pictured – 74, a dual U.S. and Haitian citizen who resides in Madrid, Spain).

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