Asante Berko Archives - FCPA Professor

Berko Arrested On Recently Unsealed Criminal Charges Alleging The Same Core Conduct As The SEC’s Previously Resolved Enforcement Action

By Mike Koehler on November 11, 2022 in 2022 Enforcement Action, Asante Berko, DOJ Enforcement Action, Financial Services Industry, Ghana, Goldman Sachs, Individual Enforcement Action, Obtain or Retain Business, Permits / Licenses / Customs / Tax

As highlighted in this prior post, in early 2020, the SEC announced the filing of a civil complaint charging Asante Berko (pictured – a former Executive Director of Goldman Sachs International) 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.

Those who follow the FCPA, myself included, likely thought that was the end of the matter. Perhaps Berko himself thought that.

In Resolving The Berko Enforcement Action, What About Liu?

By Mike Koehler on June 25, 2021 in Asante Berko, Disgorgement, Uncategorized, Victims

As highlighted in this prior post, in June 2020 the Supreme Court concluded in Liu v. SEC that “a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief permissible” under 15 USC 78u(d)(5) (a statutory provision which states in pertinent part that “in any action or proceeding brought or instituted by the Commission under any provision of the securities laws … any Federal court may grant .. any equitable relief that may be appropriate or necessary for the benefit of investors.”).

The previous post mentioned that because most SEC FCPA enforcement actions are resolved administratively – and thus subject to a different statutory provision – that Liu was technically not applicable to most SEC FCPA enforcement actions.

However, the recent FCPA settlement in SEC v. Berko (see here for the prior post) was the first SEC FCPA enforcement action filed in federal court since Liu and thus subject to the Supreme Court’s conclusion that “a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief permissible” under 15 USC 78u(d)(5).

However, as highlighted below, the SEC ignored Liu’s “and is awarded to victims” prong and encouraged the court to require Berko to nevertheless pay disgorgement which the court ordered – seemingly in violation of Liu.

Former Executive Director Of Goldman Sachs International Resolves SEC FCPA Enforcement Action

By Mike Koehler on June 24, 2021 in Asante Berko

In April 2020, the SEC announced the filing of a civil complaint charging Asante Berko (pictured – a former Executive Director of Goldman Sachs International).

The SEC charged 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. (See here for the prior post).

In summary fashion, the complaint alleged:

From The Dockets

By Mike Koehler on September 29, 2020 in Asante Berko, Joseph Baptiste, Roger Boncy

This post provides updates on the DOJ’s appeal of the new trial recently granted to FCPA defendants Joseph Baptiste and Roger Boncy as well as the SEC’s attempt to serve FCPA defendant Asante Berko.

DOJ First Circuit Appeal

As highlighted in this prior post, in March U.S. District Court Judge Allison Burroughs (D. Mass.) granted Joseph Baptiste and Roger Boncy a new trial based on ineffective assistance of counsel after the defendants were convicted of Foreign Corrupt Practices Act and other charges in connection a Haitian bribery scheme.

SEC’s Recent FCPA Complaint May Reveal Benefits Of Company Compliance But Pleadings May Be Deficient

By Mike Koehler on May 4, 2020 in Agency Issues, Asante Berko, Goldman Sachs, Guest Posts

A guest post from Arnall Golden Gregory LLP attorneys Cory Kirchert and Adriaen Morse. Previously both Kirchert and Morse were Senior Counsel in the SEC’s Enforcement Division.

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Introduction

The U.S. Securities and Exchange Commission (“SEC”) recently filed a case alleging violations of the anti-bribery provisions of U.S. securities laws that raises more questions than it answers. As most practitioners in this area know, press releases (or “litigation releases”) that accompany the announcement of new enforcement cases often discuss a company’s cooperation, in particular when the case came to the SEC’s attention via company self-disclosure or when the SEC wishes to signal that the company’s cooperation contributed to a low penalty or no penalty.

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