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Brazilian Company Bribes Brazilian Officials, U.S. Collects Net $155 Million In FCPA Enforcement Action

J&F

This recent post posed the question of whether “foreign” in the FCPA’s “foreign official” element means as it relates to the U.S. or as it relates to the specific company at issue. The post highlighted how in recent years the FCPA enforcement agencies have adopted the former interpretation in bringing FCPA enforcement actions against foreign companies for allegedly bribing their own “domestic” officials – but “foreign” as it relates to the U.S.

In yet another example, the DOJ and SEC announced yesterday (see here and here) that J&F Investimentos S.A. (J&F a private investment holding company based in Brazil that owns approximately 250 companies primarily involved in the meat and agriculture business) and a related entity resolved a net $155 million FCPA enforcement action for allegedly bribing Brazilian officials.

The enforcement action involved a: (i) DOJ component against J&F resolved through a plea agreement in which the company paid net $128.2 million; and (ii) an SEC component against J&F, a related entity, and two individuals in which the related entity paid approximately $26.8 million and the two individuals each paid a $550,000 civil penalty.

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A Foreign Official Head-Scratcher

scratchhead

The anti-bribery provisions of the Foreign Corrupt Practices Act define “foreign official” to mean in pertinent part: “any officer or employee of a foreign government or any department, agency, or instrumentality thereof … or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality …”.

Having reviewed the FCPA’s entire legislative history, it is clear that Congress intended “foreign” to mean non-U.S. as Congress learned of payments to: the political campaign of the President of the Republic of Korea; a Saudi Arabian general; Italian political parties; Japanese Prime Minister Tanaka; Prince Bernhard (the Inspector General of the Dutch Armed Forces and the husband of Queen Juliana of the Netherlands); Oswaldo Lopez Arellano, the President of Honduras; and Albert Bernard Bongo, the President of Gabon.

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Novartis Joins The Repeat Offender Club – This Time Paying Approximately $347 Million To Resolve An FCPA Enforcement Action

Novartis

What happens when the Greek, Swiss, and South Korean subsidiaries of a Swiss company engage in improper conduct in Greece, Vietnam and South Korea? Why of course, approximately $345 million flows into the U.S. treasury.

Yesterday, Novartis joined the long and growing list of FCPA repeat offenders as the DOJ and SEC announced (see here and here) a combined approximate $347 million enforcement action. (As highlighted in this prior post, in 2016 Swiss pharmaceutical company Novartis coughed up $25 million to resolve a SEC FCPA enforcement action focused on the conduct of its indirect Chinese subsidiaries).

Yesterday’s enforcement action included a DOJ component (in which the company agreed to pay approximately $234 million) and a SEC component (in which the company agreed to pay approximately $113 million).

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Eni Joins The Repeat Offender Club – This Time Resolves A $24.5 Million SEC FCPA Enforcement Action

eni

As highlighted in this prior post, in 2010 ENI S.p.A (an Italy-based oil and gas company with American Depositary Shares listed on the New York Stock Exchange) along with its wholly-owned subsidiary Snamprogetti resolved a $125 million SEC Foreign Corrupt Practices Act enforcement action concerning conduct in Nigeria.

On Friday, the SEC announced that ENI resolved another FCPA enforcement action – this one a $24.5 million enforcement action concerning conduct in Algeria by Saipem S.p.A. (a minority-owned and controlled subsidiary during the relevant time period). The conduct at issue in the enforcement action occurred 10 – 13 years ago.

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Swedish Company Bribes Foreign Officials, U.S. Collects $1.06 Billion In Record-Setting FCPA Enforcement Action

ericsson

Late last Friday, the DOJ and SEC announced (here and here) a record-setting Foreign Corrupt Practices Act action Swedish telecom company Ericsson (a company with American Depositary Shares traded in the U.S.). The $1.06 billion settlement amount is the largest net FCPA settlement amount in history surpassing the $850 million FCPA enforcement action against Russian telecom company MTS in March 2019 (see here).

The enforcement action concerned conduct in Djibouti, China, Vietnam, Kuwait, Indonesia, and Saudi Arabia.

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