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Canada-Based Kinross Gold Corp. Resolves Approximate $1 Million SEC Action Because Its Acquired Indirect African Subsidiaries Had Deficient Internal Controls

Kinross

Silly you for believing certain commentator hype that the Trump SEC would stop enforcing the Foreign Corrupt Practices Act or for thinking that the general lull in SEC corporate enforcement during the fourth quarter of 2017 meant anything.

In the second SEC corporate FCPA enforcement action in the last 2.5 weeks (see here for the prior Elbit Imaging action), the SEC announced yesterday that Canada-based Kinross Gold Corporation (a company with shares traded on the New York Stock Exchange) resolved an enforcement action “arising from the company’s repeated failure to implement adequate accounting controls of two African subsidiaries.” Without admitting or denying the SEC’s finding in this administrative order, Kinross agreed to, among other things, pay a $950,000 civil penalty.

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First Corporate Enforcement Action Of 2018 Is Against Israel-Based Elbit Imaging Ltd.

Elbit

Last Friday, the SEC released this administrative order finding that Israel-based Elbit Imaging Ltd. (a real estate company with shares traded on NASDAQ) violated the books and records and internal controls provisions of the Foreign Corrupt Practices Act based on payments made to certain third parties “when some or all of the funds may have been used to make corrupt payments to Romanian government officials or were embezzled.”

The enforcement action concerned conduct between 2006 and 2012 (beyond any conceivable statute of limitations) and without admitting or denying the SEC’s findings Elbit agreed to pay $500,000 (an amount reflective of the fact that Elbit is currently winding down its operations).

The Elbit Imaging enforcement action is the first corporate FCPA enforcement action of 2018 and breaks a nearly six month dry spell in SEC corporate FCPA enforcement actions.

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Customs Issues In Argentina Result In FCPA Enforcement Action Against BJ Services

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[This post is part of a periodic series regarding “old” FCPA enforcement actions]

In 2004, the SEC brought this administrative cease and desist order against BJ Services (a Houston-based oil field services, products, and equipment company). The conduct at issue focused on the company’s Argentina subsidiary and its relationships with customs officials. As stated in the SEC’s order, there was no indication that anyone employed by BJ Services approved many of the alleged improper payments and the SEC further acknowledged that the improper payments were made in violation of BJ Services’ existing policies prohibiting payments of the kind made to the customs official.

Other interesting aspects of the enforcement include the following: (i) certain of the improper payments were facilitated by the Argentina subsidiary issuing checks “in the name of a lower’level” employee who then “cashed the checks and provided the proceeds to the customs official”; (ii) the SEC seemed to acknowledge that certain of the payments were facilitation payments under the FCPA, but nevertheless improperly booked, and thus still actionable.

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Jay Jorgensen On Walmart’s Enhanced Ethics & Compliance Program

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Recently Jay Jorgensen (Walmart Executive V.P. and Global Chief Ethics and Compliance Officer) delivered a keynote address at The FCPA at 40 symposium hosted by Texas A&M University School of Law on October 12th.

Portions of Jorgensen’s address are published below with permission. Jorgensen’s entire keynote address will be published in a forthcoming issue of the Texas A&M Law Review. In the excerpted portion, Jorgensen talks about the transformation of Walmart’s ethics and compliance program with a focus on anti-corruption. Specifically, Jorgensen discusses Walmart’s approach to: third-party due diligence and payments; licenses and permits; donations and charitable contributions; financial controls; and enhanced training.

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The Chiquita Enforcement Action – A Bunch Of Bananas With A Slippery Origin

chiquita

[This post is part of a periodic series regarding “old” FCPA enforcement actions]

If you think strict liability enforcement of the FCPA books and records and internal controls provisions is a recent invention, think again.

If you think off-the-rails FCPA enforcement (that is enforcement theories seemingly in conflict with actual legal authority) is a recent invention, think again.

A dubious FCPA enforcement action occurred in 2001 when the SEC announced this administrative cease and desist order finding that Chiquita Brands International Inc. violated the books and records and internal controls provisions of the Foreign Corrupt Practices Act.

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