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Once Again, The DOJ Shoots Itself In The Foot

shootingselffoot

The Department of Justice has long wanted companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. The latest attempt to achieve this policy goal of course was the DOJ’s November 29th announcement of a new “FCPA Corporate Enforcement Policy.” (This post rounds up all previous posts on this topic).

Why then, literally a few hours after announcing its latest attempt to motivate companies to voluntarily disclose, did the DOJ in announcing the SBM Offshore enforcement action (see here and here for prior posts) once again (see here and here for prior similar posts) shot itself in the foot by making decisions that should result in any board member, audit committee member, or general counsel informed of current events not making the decision to voluntarily disclose?

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“Foreign Official” Notable

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This previous post highlighted various issues to consider in the recent SBM Offshore enforcement action.

Buried deep in the approximate 170 pages of resolution documents was another important issue to consider deserving of its own post.

This important issue was likely not a significant factor in the overall resolution of the matter (after all, as highlighted in the previous post, the conduct at issue “lasted over 16 years, was carried out by employees at the highest level of the organization, including two high-level executives who were at times directors of a wholly-owned U.S. domestic concern, involved large bribe payments, and included deliberate efforts to conceal the scheme”).

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Issues To Consider From The SBM Offshore Enforcement Action

Issues

This previous post went in-depth into the $238 million DOJ Foreign Corrupt Practices Act enforcement action against Netherlands-based SBM Offshore for alleged bribery schemes in Brazil, Angola, Equatorial Guinea, Kazakhstan and Iraq.

This post continues the analysis by highlighting additional issues to consider.

DOJ Explains Its Original “Declination”

As highlighted in the original post, in 2014 SBM Offshore resolved a $240 million Dutch law enforcement action alleging bribery schemes in Equatorial Guinea, Angola and Brazil between 2007 through 2011. In connection with that action, SBM Offshore disclosed: “the United States Department of Justice has informed SBM Offshore that it is not prosecuting the Company and has closed its inquiry into the matter.”

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SBM Offshore Resolves $238 Million FCPA Enforcement Action

sbm

As highlighted in this prior post, in 2014 Netherlands-based SBM Offshore resolved a $240 million Dutch law enforcement action alleging improper payments to sales agents and foreign government officials in Equatorial Guinea, Angola and Brazil between 2007 through 2011. In connection with this action, the company disclosed: ““the United States Department of Justice has informed SBM Offshore that it is not prosecuting the Company and has closed its inquiry into the matter.”

Fast forward to earlier this month when, as highlighted in this prior post, the DOJ announced resolution of criminal charges against former SBM Offshore executive Anthony Mace and Robert Zubiate for their roles in a scheme to bribe foreign government officials in Brazil, Angola and Equatorial Guinea.

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Friday Roundup

Roundup

Quotable, SEC Annual Report, it’s called the rule of law – deal with it, across the pond, more ISO 37001 puff pieces, monitor related, for your viewing pleasure, and for the reading stack. It’s all here in the Friday roundup.

Quotable

To those still hyperventilating about Foreign Corrupt Practices Act enforcement in the Trump administration (see here and here), perhaps this might calm you down. As reported here by Wall Street Journal Risk & Compliance: “[FCPA Unit Chief Daniel Kahn dismissed the suggestion that President Donald Trump‘s previous criticism of the FCPA has had any effect on the department’s enforcement of the law. Mr. Kahn said he “spanned both administrations,” referring to Mr. Trump’s predecessor, President Barack Obama, adding, “I am continuing to do what I do.”

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