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Glencore … In Its Own Words


As highlighted here, in May 2022 Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland) resolved a net $443 million FCPA enforcement action.

According to the DOJ: “From at least in or about 2007 up to and including in or about 2018, Glencore, through certain of its employees and agents, while acting on behalf of Glencore, together with its co-conspirators, knowingly and willfully conspired and agreed with others to corruptly provide more than $100 million in payments and other things of value to various intermediaries with the intent that a significant portion of these payments would be used to pay bribes to and for the benefit of foreign officials to secure an improper advantage and to influence those foreign officials in order to obtain or retain business in Nigeria, Cameroon, Ivory Coast, Equatorial Guinea, Brazil, Venezuela, and the Democratic Republic of Congo.”

A recent sentencing submission by Glencore makes for an interesting read.

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Judge Rules On The Intersection Of Corporate DPA Provisions And Individual Defendant Rights

Judicial Decision

This recent post summarized the decision by a judge to deny Roger Ng’s (a former Goldman Sachs executive) motion to dismiss including how the judge concluded that the FCPA’s internal controls provisions can be implicated even in transactions in which an issuer does not use its own assets to pay an alleged bribe.

In his motion to dismiss, Ng also pointed to certain aspects of the deferred prosecution agreement between the DOJ and Goldman (see here in for the prior post) as compromising his defense. However, in her decision, U.S. District Court Judge Margo Brodie (E.D.N.Y) also denied Ng’s motion on these grounds.

Given that the motion to dismiss stage is deferential to the prosecution, Judge Brodie’s decision on these issues was not a huge surprise.

Nevertheless, these aspects of Judge Brodie’s decision are worthy of exploring because various aspects of corporate DPAs (or NPAs) in the Foreign Corrupt Practices Act context are rarely litigated because: (1) the DOJ does not charge individuals in connection with approximately 75% of corporate actions; and (2) even in those instances in which the DOJ does charge an individual in connection with a corporate action, the individual frequently pleads guilty without mounting a defense.

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DOJ’s Use Of Foreign Evidence Requests Questioned

question marks2

According to this recent Wall Street Journal article, “Justice Department lawyers have improperly used requests for overseas evidence to buy more time to bring some fraud cases, a memo filed with the agency’s internal watchdog alleges. […] If the allegations in the memo are determined to be true, they could indicate that the Justice Department has bent the rules in a way that damaged defendants’ rights. Suspects in many federal crimes can’t be charged more than five years after the crime has been committed. Such statutes of limitations were enacted to protect possible defendants from being accused long after a crime, when memories had faded and evidence may have disappeared.”

Although the article does not specifically mention any Foreign Corrupt Practices Act enforcement actions, as described below, the general issue discussed in the article is FCPA relevant.

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DOJ Brings Additional Criminal Charges In Connection With PetroEcuador Bribery Scheme


Similar to how the April 2018 indictment of Frank Roberto Chatburn Ripalda alleging a bribery scheme involving PetroEcuador officials generally went unnoticed (see here for the prior post), this May 2019 indictment of Armengol Alfonso Cevallas Diaz (an Ecuadorian citizen) and Jose Melquiades Cisneros Alarcon (an Ecuadorian citizen and permanent resident of the U.S.) concerning the same alleged bribery scheme also generally went unnoticed.

The indictment charges Cevallos and Cisneros with conspiracy to violate the FCPA’s anti-bribery provisions, conspiracy to commit money laundering, and numerous money laundering offenses.

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FCPA Unit Chief Kahn On Multijurisdictional Cases


Recently, DOJ Foreign Corrupt Practices Act Unit Chief Daniel Kahn penned an article in the Department of Justice Journal of Federal Law and Practice titled “Responding to the Upward Trend of Multijurisdictional Cases: Problems and Solutions.”

The Journal of Federal Law and Practice is the renamed United States Attorneys’ Bulletin and compared to delivering speeches, it is nice to see our public officials write articles (complete with certain footnotes) on topics they oversee.

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