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“We May Not Have Conducted Our Business In Compliance With The FCPA”

Those are the words used by Dutch-based Lyondellbasell Industries N.V. (see here [1]) in its August 25th SEC filing (see here [2]).

Lyondellbasell’s disclosure is not exactly “new” news as it was first disclosed in a March 2010 court filing in connection with the company’s bankruptcy proceeding, but the news is new to me, and perhaps to you as well.

The FCPA disclosure reads as follows:

“We have identified an agreement related to a project in Kazakhstan under which a payment was made in late 2008 that raises compliance concerns under the U.S. Foreign Corrupt Practices Act (the “FCPA”). We have engaged outside counsel to investigate these activities, under the oversight of a special committee established by the Supervisory Board, and to evaluate internal controls and compliance policies and procedures. We made a voluntary disclosure of these matters to the U.S. Department of Justice in late 2009 and are cooperating fully with that agency. We cannot predict the ultimate outcome of this matter at this time or whether we will discover other matters raising compliance issues, including under other statutes. In this respect, we may not have conducted our business in compliance with the FCPA and may not have had policies and procedures in place adequate to ensure compliance. We cannot reasonably estimate any potential penalty that may arise from these matters. We are in the process of adopting and implementing more stringent policies and procedures designed to ensure compliance. We cannot predict the ultimate outcome of this matter at this time since our investigations are ongoing. Violations of these laws could result in criminal and civil liabilities and other forms of relief that could be material to us.”

According to this [3] Bloomberg report, “a review of international holdings by a management team installed after the bankruptcy triggered the disclosure.”

Citing a company spokesperson and unnamed sources, the Bloomberg article states that “the company’s review involves a petrochemical complex in western Kazakhstan where LyondellBasell was a partner until earlier this year” and that “a LyondellBasell payment of $7 million made about two years ago to an individual affiliated with a Kazakh company, SAT & Co., is at the center of the internal investigation” which is being conducted by Cadwalader Wickersham & Taft LLP .

According to a company spokesperson, “the characterization of the $7 million payment was not accurate.”

As noted in the SEC filing, since emerging from bankruptcy on April 30, 2010, there has been a limited market for the company’s securities. “LyondellBasell Industries N.V.’s class A ordinary shares and class B ordinary shares have been quoted on Pink OTC Market’s electronic quotation and trading system under the symbols “LALLF” and “LALBF,” respectively, since emergence. We have applied for listing of our class A ordinary shares and our class B ordinary shares on the New York Stock Exchange (“NYSE”).”