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The FCPA’s Impact On Raising Capital

raising capital

The 2014 article “FCPA Ripples” goes in-depth, using various case studies, to demonstrate how settlement amounts in an actual Foreign Corrupt Practices Act enforcement action are often only a relatively minor component of the overall financial consequences that can result from FCPA scrutiny or enforcement. Numerous prior posts have done so as well (see here).

In addition to pre and post-enforcement action professional fees and expenses, market capitalization, credit ratings, M&A activity, lost or delayed business opportunities, and offensive use of the FCPA (to name just a few ripples) this post highlights how FCPA scrutiny and enforcement can also negatively impact a company’s ability to raise capital.

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Former Equity Holders Of Africo Resources Seek Designation As “Victims” Of Och-Ziff’s Bribery Schemes And Raise Concerns About The Underlying Settlement

victim

“Bribery is not a victimless crime.”

It is a common sentence in DOJ FCPA talking points (see here for instance).

If bribery is not a victimless crime, then why do FCPA fines and penalties simply go directly into the U.S. Treasury? Why are there generally no efforts to identify the victims of FCPA violations and to allow those victims to pursue legal remedies? As highlighted in this post, the U.S. government actually identified certain victims of Och-Ziff’s bribery schemes, but later backed off this determination perhaps because it complicated the DOJ’s efforts to resolve the matter.

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Former Och-Ziff Executive Cohen Criminally Charged – Including For Obstruction And Making False Statements In Connection With DOJ/SEC Investigation

DOJ2

As highlighted in this prior post, in January 2017 former Och-Ziff executives Michael Cohen and Vanja Baros were civilly charged by the SEC with Foreign Corrupt Practices Act, and other, violations in connection with the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.

Recently, the DOJ unsealed criminal charges against Cohen. While some media sources have called the charges “bribery charges,” (see here for the Wall Street Journal article) this is false as Cohen was not charged with any FCPA offenses, but rather various fraud based offenses based on his role as an investment advisor. However, as detailed in this post, Cohen was also charged conspiracy to obstruct justice and making material false statements, charges at least indirectly related to the DOJ’s and SEC’s FCPA inquiry of Och-Ziff.

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Friday Roundup

Roundup

Overhead at the town hall meeting, sentenced, investigative fees, “fake” FCPA news, fairly obvious, hook-line-and-sinker, fore, pardon me for being a stickler, ISO37001 related, and purely speculative and not credible.

It’s all here in the Friday roundup

Overhead at the Town Hall Meeting

I can’t imagine that the FCPA is a frequent topic of discussion at New England town hall meetings. But as highlighted here it was recently a topic of discussion as “the new operator of a popular ski resort in New Hampshire [Och-Ziff]  faced off against concerned residents, some of whom fear the company’s past legal troubles raise doubts about whether it was the right choice to oversee the facility.”

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Motions To Dismiss Fully Briefed In SEC v. Cohen & Baros

Judicial Decision

As highlighted in this prior post, in January 2017 the SEC filed a civil complaint against former Och-Ziff executives Michael Cohen and Vanja Baros alleging the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.

The prior post noted that the defendants would be mounting a defense and further noted that the SEC is rarely put to its burden of proof in FCPA enforcement actions (corporate or individual). Indeed, the SEC has never prevailed in FCPA history when put to its ultimate burden of proof.

Late last week, the briefing on the motions to dismiss appeared (all at once) on the court’s docket and this post summarizes the disputed issues which largely center on statute of limitations issues and (as relevant to Baros, a foreign national defendant) general jurisdiction issues as well as FCPA specific jurisdiction issues).

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