FCPA Professor

This prior post covered the 2019 Foreign Corrupt Practices Act enforcement action against Ericsson. The enforcement action concerned conduct in Djibouti, China, Vietnam, Kuwait, Indonesia, and Saudi Arabia and included a DOJ and SEC component. The DOJ matter involved a one count criminal information against Ericsson subsidiary Ericsson Egypt Ltd. charging conspiracy to violate the FCPA’s anti-bribery provisions resolved through a plea agreement and a criminal information against Ericsson charging conspiracies to violate the FCPA’s anti-bribery, books and records, and internal controls provisions resolved through a deferred prosecution agreement. The DOJ matter was resolved through payment of a $520 million criminal penalty.

As highlighted in this prior post, in 2021 the DOJ suggested that Ericsson was in breach of its DPA obligations.

Recently, the DOJ announced that “Ericsson has agreed to plead guilty and pay a criminal penalty of more than $206 million after breaching a 2019 Deferred Prosecution Agreement (DPA).” (See here for the prior post).

The plea agreement contains an attachment titled “Factual Basis for Breach” and it makes for an interesting read. Among other things, the DOJ does assert any additional criminal conduct by Ericsson, nor does the DOJ assert that any of Ericsson’s alleged breaches prevented it from addressing the substantive conduct at issue in the 2019 enforcement. In addition, certain of the blame (seemingly much blame) for Ericsson’s alleged breaches appears to be the result – per the DOJ – of decisions or omissions by Ericsson’s “prior outside counsel.” Although “prior outside counsel” is not identified in the recent “Factual Basis for Breach,” Ericsson’s outside counsel in connection with the 2019 FCPA enforcement action was Simpson Thacher & Bartlett LLP attorneys Cheryl Scarboro, Joshua Levine and Diana Wielocha.

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