Hey Look … The Scoular DPA
On July 17th, the DOJ announced a $10.2 million FCPA enforcement action against The Scoular Company based on alleged bribery scheme in Mexico. (See here for the prior post).
As stated in the DOJ release:
“Between 2013 and 2019, Scoular relied on multiple customs brokers to ensure that its shipments of corn and other products successfully crossed from the United States into Mexico. Under Mexican law, those shipments were subject to inspection for dirt, soil, and other impurities. To ensure that Scoular’s shipments successfully transited the border despite inspections that found such dirt, soil, and other impurities, Scoular authorized multiple third-party customs brokers to bribe Mexican officials at the border. At the direction of Scoular employees, and for Scoular’s benefit, those brokers paid bribes of approximately $2,000 per Scoular train and invoiced the bribes back to Scoular for reimbursement of reinspection fees, which Scoular paid. Scoular employees communicated about shipments and bribes via WhatsApp and other means. In total, Scoular authorized bribes of more than $400,000 and avoided fees and costs of more than $6.5 million.”
As discussed in previous posts here and here, The Scoular enforcement action was a garden variety FCPA enforcement action.
Dear “Docketing Clerk” For The U.S. District Court – W.D. of Texas (El Paso)
On July 17th, the DOJ announced an FCPA enforcement action against The Scoular Company based on alleged bribery scheme in Mexico. (See here for the prior post).
The criminal information charging the company with conspiracy to violate the FCPA’s anti-bribery provisions has been in the public domain since the announcement (although some uniformed commentators continue to suggest that it is not); however the deferred prosecution agreement is not publicly available on the court docket.
According to a knowledgeable source, the DPA “should be” available, but it still isn’t perhaps due to an oversight, technology issue, link issue with the electronic docket.
For instance, the docket currently shows:
DOJ Objects To Further Briefing In Hobson Motion For Acquittal
This recent post discussed how newly engaged defense counsel in U.S. v. Hobson made a filing seeking leave to file a reply in support of Hobson’s pending motion for a judgment of acquittal citing a June Supreme Court decision – Hunter v. U.S. – and how it “bears directly on how this case was litigated.”
As discussed here, in February Charles Hunter Hobson (who served in a variety of roles at Corsa Coal from 2013 to 2018) was found guilty by a jury for various Foreign Corrupt Practices Act and related offenses in connection with an Egyptian bribery scheme. As highlighted here, the “foreign official” jury instruction in the Hobson case was flawed and Hobson’s motion for acquittal (filed on April 6th) on a variety of issues remains outstanding.
Berko Trial Begins
This week trial begins in U.S. v. Asante Berko (a former Executive Director of Goldman Sachs International) before Judge Diane Gujarati (E.D.N.Y.).
The trial is believed to be just the 27th FCPA jury trial in the FCPA’s nearly 50 years.
In terms of background, as highlighted in this prior post, in 2020, the SEC announced the filing of a civil complaint charging Asante Berko with Foreign Corrupt Practices Act violations and other charges for “orchestrating a bribery scheme to help a client [a Turkish energy company] win a government contract to build and operate an electrical power plant” in Ghana.
Berko publicly denied the SEC’s allegations and the SEC sought court approval to serve the summons and complaint via e-mail and through his U.S. counsel. Ultimately settlement negotiations commenced and in mid-2021 Berko agreed to resolve the matter. Without admitting or denying the SEC’s allegations, Berko agreed to pay $329,163.92 (disgorgement of $275,000 along with prejudgment interest of $54,163.92). The final judgment also permanently restrained and enjoined Berko from violating, directly or indirectly, the FCPA’s anti-bribery provisions.
FCPA Enforcement And The “C” Word – Part II
FCPA Inc. has always been an active group of writers who often use any little nugget of information to market FCPA practices.
So it is with the recent Scoular Company FCPA enforcement action.
Even though it was a “garden variety” enforcement action (a company doing business in a foreign country had a point of contact with a “foreign official” in connection with some regulatory aspect of its business and a bribe was allegedly paid), some are asserting that the enforcement action is evidence of the DOJ’s focus on cartel activity.
Here are the facts.