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Stimler Enforcement Action – The Consequential E-Mail

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Yesterday’s post highlighted the Foreign Corrupt Practices Act (and related) enforcement action against Anthony Stimler (a U.K. citizen and resident who was a trader at Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland).

The FCPA anti-bribery charge against Stimler invoked the so-called 78dd-3 prong of the statute which has the most demanding jurisdictional hook.

Specifically, “while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to” a foreign official.

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Former Glencore Trader Pleads Guilty To FCPA And Related Offense

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As highlighted in this prior post, for approximately two years Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland with common stock that trades on the New York based over-the-counter market) has been under scrutiny for conduct in Nigeria, the Democratic Republic of Congo, and Venezuela (as well as perhaps other countries).

Earlier this week Anthony Stimler pleaded guilty to FCPA and money laundering offenses. Stimler is described as a United Kingdom citizen and resident who was a trader at a Glencore subsidiary who worked on the West Africa desk from in or around 2002 until in or around 2009 and then again from in or around June 2011 until in or around August 2019. According to the DOJ “In that role, Stimler had responsibility for crude oil purchases from, among other places, Nigeria, and acted on behalf of Company 1 [Glencore] in procuring crude oil from Nigeria.”

In summary fashion, the criminal information alleges:

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Second Circuit Affirms Ho’s FCPA And Related Convictions

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As described in this prior post, in late 2018 Chi Ping Patrick Ho was found guilty at trial of Foreign Corrupt Practices Ac and money laundering violations in connection with alleged bribery schemes in Chad and Uganda on behalf of China Energy Fund Committee, an entity funded by CEFC China Energy Company Ltd.

This prior post outlined Ho’s arguments on appeal and the FCPA specific issues were presented as follows:  (1) “Whether the government, which repeatedly argued that Ho paid bribes on behalf of a Chinese company, presented legally sufficient evidence that he acted on behalf of a “domestic concern,” as required for a conviction under 15 U.S.C. § 78dd-2;” and (2) “Whether a defendant may be prosecuted for violating § 78dd-3 where (a) the grand jury determined that he was a “domestic concern,” but § 78dd-3 expressly does not apply to domestic concerns, and (b) the defendant was also indicted for violating § 78dd-2, but §§ 78dd-2 and 78dd-3 are mutually exclusive.”

In this recent decision, the Second Circuit rejected each of Ho’s challenges and affirmed his convictions.

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In A Case That Keeps On Giving, The DOJ Announces Unsealing Of 2015 Indictment Against Former Alstom And Marubeni Executives

Alstom

In mid-2013, the DOJ announced that various current and former of Alstom resolved a Foreign Corrupt Practices Act enforcement action in connection with the Tarahan power project in Indonesia. The underlying charging documents were from 2012. (See here). Thereafter, in 2013 additional individuals associated with Alstom were also charged (see here and here) including Lawrence Hoskins who was found guilty at trial in 2019. (See here).

In early-2014, Marubeni (a consortium partner of Alstom on the Tarahan project) resolved an FCPA enforcement action. (See here and here). In late 2014, Alstom resolved an FCPA enforcement action regarding alleged conduct around the world including in Indonesia in connection Tarahan power contract. (See here and here).

Yesterday, the DOJ announced the unsealing of this 2015 indictment charging Reza Moenaf (the former president of Alstom’s subsidiary in Indonesia), Eko Sulianto (the former director of sales of Alstom’s subsidiary in Indonesia) and Junji Kusunoki (the former deputy general manager of Marubeni’s Overseas Power Project Department) with conspiracy to violate the FCPA and conspiracy to commit money laundering in connection with the same core allegations found in the previous enforcement actions.

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DOJ Criminally Charges Former Braskem CEO Jose Grubisich In Connection With The Same Core Conduct Alleged In The 2016 Corporate Enforcement Action

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As highlighted in this prior post, in late 2016 the DOJ and SEC brought a Foreign Corrupt Practices Act enforcement action against Odebrecht S.A. (a Brazilian holding company) and Braskem S.A. (a Brazil-based petrochemical company with shares traded on the NYSE in which Odebrecht owned a majority of voting shares).

The conduct at issue was egregious and largely centered on a business unit, the Division of Structured Operations, housed within an Odebrecht subsidiary that allegedly served as little more than a bribe-paying department for the benefit of Odebrecht and Braskem. According to the resolution documents, former senior executives authorized approximately $788 million in bribes, largely through the Division of Structured Operations, to alleged foreign officials in at least twelve countries. While the principal focus of the DOJ’s action (and the exclusive focus of the SEC action) concerned conduct in Brazil including the companies relationships with Petrobras, the DOJ action also alleges improper payments in Angola, Argentina, Brazil, Colombia, Dominican Republic, Ecuador, Guatemala, Mexico, Mozambique, Panama, Peru, and Venezuela.

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