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Interesting

The SEC’s most recent Foreign Corrupt Practices Act enforcement action was against Gol Airlines – a Brazil corporation (see here for the prior post).

Prior to that, was the SEC’s FCPA enforcement action against Tenaris – a Luxembourg corporation (see here and here for prior posts). Prior to that, was the SEC’s FCPA enforcement against KT Corp. – a South Korean corporation (see here and here for prior posts). Prior to that was the SEC’s FCPA enforcement action against Credit Suisse – a Swiss Corporation (see here). Prior to that against WPP – a United Kingdom Corporation (see here). Prior to that, against Amec Foster Wheeler – a U.K. corporation and successor in interest to a Swiss corporation (see here). Prior to that, against Deutsche Bank – a German corporation (see here and here).

The only SEC FCPA enforcement actions in the last approximate two years against U.S. companies have been against Stericycle (see here and here for prior posts) and Goldman Sachs (see here and here for prior posts).

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Brazilian Airline Bribes Brazilian Officials – U.S. Collects Net $38.1 Million In FCPA Enforcement Action

GOL

Yesterday, the DOJ and SEC (see here and here) announced a parallel Foreign Corrupt Practices Act enforcement action against Gol Linhas Aereas Inteligentes S.a. (GOL) – an airline headquartered in Sao Paulo, Brazil with shares traded on the New York Stock Exchange.

The DOJ component involved a criminal information against GOL charging conspiracy to violate the FCPA’s anti-bribery and books and records provisions resolved through a deferred prosecution agreement in which the company agreed to pay net $15.3 million. The SEC component involved an administrative order against GOL finding violations of the FCPA’s anti-bribery, books and records, and internal controls provisions pursuant to which the company is expected to pay net $22.8 million.

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The Latest Reminder That The FCPA Has Always Been A Law Much Broader Than Its Name Suggests

reminder

The Foreign Corrupt Practices Act has always been a law much broader than its name suggests. Sure, the FCPA contains anti-bribery provisions which concern foreign bribery. Sure, the FCPA’s books and records and internal controls provisions can be implicated in foreign bribery schemes.

However, the fact remains that most FCPA enforcement actions (that is enforcement actions that charge or find violations of the FCPA’s books and records and internal controls provisions) have nothing to do with foreign bribery and these provisions are among the most generic legal provisions one can possibly find.

These so-called non-FCPA FCPA enforcement actions often present a perplexing issue. That is, the same legal violation is generally enforced by the SEC in different ways.

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Issues To Consider From The Tenaris Enforcement Action

Issues

This post highlighted the recent $78.1 million Foreign Corrupt Practices Act enforcement action against Tenaris (the second time the company has resolved an FCPA enforcement action in the last approximate decade).

This post highlights additional issues to consider from the enforcement action.

Timeline

Tenaris “voluntarily notified” the SEC and DOJ of the matters involved in the enforcement action in October 2016.

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The FCPA Repeat Offender Club Welcomes Tenaris

welcome

In 2011, Tenaris S.A. (a company headquartered in Luxembourg with American Depository Receipts listed on the New York Stock Exchange) resolved an approximate $9 million Foreign Corrupt Practices Act enforcement action regarding conduct in Uzbekistan (see here for the prior post).

For several years, Tenaris has been under scrutiny for its relationship with Petrobras in Brazil and in October 2016 the company “voluntarily notified” the SEC and DOJ. (See here).

Yesterday, the FCPA Repeat Offender Club welcomed Tenaris to its growing membership as the SEC announced an approximate $78.1 million enforcement action against the company.

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