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Friday Roundup

Apparently not, scrutiny updates, silly offensive use, and not credible. It’s all here in the Friday roundup.

Apparently Not

This May 2017 post [1] asked whether Sinovac might become the first Chinese issuer to resolve an FCPA enforcement action after the SEC began an inquiry regarding certain bribery and corruption issues in China.

Apparently not as the company recently announced [2]:

“[T]he U.S. Securities and Exchange Commission (“SEC”) has concluded its investigation into possible violations of the federal securities laws related to allegations that certain Sinovac employees made improper payments to Chinese government officials. The SEC determined that it will not recommend or pursue an enforcement action against Sinovac at this time. Sinovac is committed to conducting business in compliance with all applicable laws and cooperated fully with the SEC. Sinovac will continue in its mission of researching, developing, manufacturing and commercializing vaccines that protect against human infectious diseases.”

Scrutiny Updates

Electrobras

As highlighted in this June 2015 post [3], Eletrobras (Brazil’s state-run power company) “hired U.S. law firm Hogan Lovells to assess possible cases of corruption in some of the projects the company is involved in. Eletrobras … said in a filing to the Brazilian market regulator that the law firm will check whether there were practices which violated the U.S. Foreign Corrupt Practices Act.”

Recently, the company disclosed:

“Eletrobras was notified by its U.S. counsel, Hogan Lovells US LLP, that the United States Department of Justice (“USDOJ”) has declined to prosecute the Company for issues related to the Foreign Corrupt Practices Act (“FCPA”). The USDOJ has not established contingencies or conditions and will not require a compliance monitor. Therefore, there are no further issues pending resolution before the USDOJ. Eletrobras’ contract with Hogan Lovells US LLP is still ongoing, as the firm is assisting the Company with the implementation of certain remedial actions and negotiating a resolution with the U.S. Securities and Exchange Commission (“SEC”).”

[4]

Microsoft

As highlighted in this prior post [5], Microsoft has been under FCPA scrutiny since early 2013 concerning conduct in various countries. The Wall Street Journal reports [6]:

“Microsoft is being investigated by U.S. authorities over potential bribery and corruption related to software sales in Hungary, according to people familiar with the matter. The investigation follows a series of similar probes into Microsoft business partners that surfaced in 2013 in five other countries.

Microsoft said it moved quickly to investigate itself after it became aware of “potential wrongdoing” at its Hungarian operations in 2014, according to a statement to The Wall Street Journal by the company’s deputy general counsel, David Howard. The company said it is cooperating with the Justice Department and SEC.”

[As an aside, I spoke to one of the journalists of this article for over 30 minutes last week and gave him various information relevant to the article, but none of the information appears. Moreover, the article contains certain false statistical information.]

Silly Offensive Use

Some offensive uses of the FCPA are just plain wacky. For instance, this article states [7]:

“Gil Cisneros, a Democrat running in California’s toss-up 39th Congressional District, has investments in more than 30 companies in the oil and gas sectors through his personal foundation.”

Included in these investments is …. you better sit down for this one … Tenaris a company that resolved an FCPA enforcement action in 2011.” (See here [8]).

Not Credible

Some FCPA commentators are simply not credible. In this post [9] a commentator asserts “the criticisms against the new policy [the DOJ’s FCPA Corporate Enforcement Policy announced in November 2017] have been relatively few (except for the usual suspects who enjoy howling at the moon).”

Um excuse but this post [10] highlights approximately 40 law firm client alerts published in the aftermath of the DOJ policy criticizing various aspects of the policy.

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