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Court Concludes That Plaintiffs Counsel’s Reference To Prior FCPA Settlement In Civil Case Provides Grounds For A New Trial

You be the Judge

Once the ink is dry on a Foreign Corrupt Practices Act settlement, most people forget about it. However, it does not disappear and may be resurrected by opportunistic parties including in civil litigation.

Such is the circumstance in this post which discusses a recent 5th Circuit decision in which plaintiffs’ counsel referenced a 2011 FCPA enforcement action against Johnson & Johnson and a related entity. (See here for the prior post).

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The Panama Papers Origins Of The Parker FCPA Enforcement Action

PanamaPapers

This recent post highlighted the DOJ’s Foreign Corrupt Practices Act enforcement action against Lawrence Parker in connection with a telecommunications bribery scheme in Aruba in which the DOJ alleged that Servicio di Telecommunicacion di Aruba N.V. (SETAR) was an instrumentality of the Aruban government such that Egbert Yvan Ferdinand Koolman (a product manager at SETAR and alleged bribe recepient) was a “foreign official.”

This post highlights that the likely origin of the FCPA enforcement action against Parker was this March 2017 civil complaint filed in U.S. court by SETAR against Koolman, Parker and several other entities and individuals and how the civil complaint originated with the so-called Panama Papers.

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Court In FCPA-Related Civil Claim – Causation Matters

Judicial Decision

Several prior posts (herehere, here and here) have focused on basic causation issues in connection with many Foreign Corrupt Practices Act enforcement actions.

The lack of causation between an alleged bribe payment and any alleged business obtained or retained may not be a legal defense because the FCPA’s anti-bribery provisions prohibit the offer, payment, promise to pay or authorization of the payment of money or anything of value.  Indeed, several FCPA enforcement actions have alleged unsuccessful bribery attempts in which no business was actually obtained or retained.

Nevertheless, causation ought to be relevant when calculating FCPA settlement amounts, specifically disgorgement. However, the prevailing enforcement theory often seems to be that because Company A made improper payments to allegedly obtain or retain Contract A then all of Company A’s net profits associated with Contract A are subject to disgorgement.

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Friday Roundup

Roundup

Elevate, further to the clustering phenomenon, transparency, dismissed, and incomplete. It’s all here in the Friday roundup.

Elevate

Learning a new topic or elevating your knowledge and practical skills in a topic is not just for formal students in formal educational settings. Professionals in the workplace can also benefit from back to “school” experiences.

For professionals in the FCPA space – or wishing to join the FCPA space – the FCPA Institute serves this objective and has “graduated” approximately 200 hundred diverse professionals since its launch in 2014.

The next FCPA Institute will take place in Nashville on May 3-4th. See here to learn more and to register.

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Friday Roundup

Roundup

A home run, quotable, monitors, up north, scrutiny alerts and updates, irksome, and for the reading stack. It’s all here in the Friday roundup.

Home Run

The latest issue of the always informative FCPA Update from Debevoise & Plimpton (released by the way on the opening day of the Major League Baseball season) hits a home run.

The lead article by Paul Berger (former Associate Director of the SEC’s Enforcement Division) concerns the recent Elbit Imaging enforcement action (see here for the prior post) and states in pertinent part:

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