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Friday Roundup

Roundup

Banking bar, Kokesh related, OECD shaming, quotable, downfall, and listening in. It’s all here in the FCPA roundup.

Banking Bar

The Federal Reserve recently announced “that it is prohibiting Tim Leissner and Ng Chong Hwa, also known as Roger Ng, from the banking industry for their participation in a scheme to illegally divert billions of dollars from a Malaysian sovereign wealth fund. Leissner was also fined $1.42 million and consented to the permanent ban.”

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Issues To Consider From Recent Enforcement Actions

Issues

Previous posts here and here highlighted the late December 2018 Foreign Corrupt Practices Act enforcement actions against Eletrobras and Polycom. This post continues the analysis by highlighting additional issues to consider.

Timelines

As highlighted in this previous post, in June 2015 it was reported that Eletrobras hired a law firm to investigate FCPA issues. Thus, the company’s FCPA scrutiny appears to have lasted approximately 3.5 years. Once again, if the SEC wants its FCPA enforcement program to be viewed as legitimate and credible, it must resolve instances of FCPA scrutiny much quicker.

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Issues To Consider From The Sanofi Enforcement Action

Issues

This previous post highlighted the SEC’s $25.2 million FCPA enforcement action against Sanofi and this post continues the analysis by highlighting additional issues to consider.

Timeline

Sanofi’s FCPA scrutiny began in mid-2014 (see this prior post). Thus, from start to finish, its scrutiny lasted approximately 4 years.

At the risk of sounding like a broken record to regular readers … if the FCPA enforcement agencies want the public to have confidence in their FCPA enforcement programs, they must resolve instances of FCPA scrutiny much quicker. The validity and credibility of FCPA enforcement depends on this. Having FCPA scrutiny linger for over four years is inexcusable particularly since Sanofi, in the words of the SEC:

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Friday Roundup

Roundup

Impasse, quotable, scrutiny alerts, um excuse me but, and for the reading stack. It’s all here in the Friday roundup.

Impasse

Walmart’s FCPA scrutiny began in late 2011. Yet, nearly seven years later there still has not been an enforcement action.

Bloomberg reports: “Walmart Inc. set aside nearly $300 million last fall for a possible resolution with the U.S. government over international bribery allegations, a sign that an end to the years-long investigation was imminent. But eight months later, the sides are deadlocked, three people familiar with the matter said. It’s not about the money: One source of tension is prosecutors’ insistence that Walmart, the world’s largest retailer, admit to certain misconduct as part of any deal, one of the people said.”

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SEC’s FCPA Charges Against Former Och-Ziff Executives Cohen And Baros Dismissed

Judicial Decision

This previous post highlighted the SEC’s Foreign Corrupt Practices Act (and related) enforcement action against Michael Cohen and Vanja Baros (former Och-Ziff executives) based on the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.

The post noted that the meaty 80 page complaint against Cohen and Baros was a clear signal that a negotiated settlement was unable to be reached and that the defendants would put the SEC to its burden of proof. It was further noted that the SEC is rarely put to its burden of proof in FCPA enforcement actions (corporate or individual) and indeed has never prevailed in FCPA history when put to its ultimate burden of proof. Prior posts here and here summarized the issues in the motion to dismiss briefing.

Yesterday, in yet another blow to the SEC when put to its burden of proof in an FCPA enforcement action, Judge Nicholas Garaufis (E.D.N.Y.) dismissed the SEC’s complaint finding the SEC’s claims time-barred.

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