Medical Services Company To File Restitution Claim In Connection With Glencore FCPA Enforcement Action
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 portion of the conduct in the Democratic Republic of Congo related to bribe paid in connection with a litigation dispute.
Glencore Pleads Guilty In The U.K.
In connection with the May Foreign Corrupt Practices Act enforcement action against Glencore, the U.K. Serious Fraud Office also announced that a Glencore entity was charged with seven counts of bribery in connection with its oil operations.
Yesterday, the SFO announced that:
“Glencore Energy (UK) Ltd has … been convicted on all charges of bribery brought against it by the Serious Fraud Office (SFO). At Southwark Crown Court, the company admitted to multiple counts of paying bribes to secure access to oil and generate illicit profit. The SFO’s investigation exposed that Glencore, via its employees and agents, paid bribes of over $28 million for preferential access to oil, including increased cargoes, valuable grades of oil and preferable dates of delivery. These actions were approved by the company across its oil operations in Nigeria, Cameroon, Ivory Coast, Equatorial Guinea and South Sudan. Glencore will be sentenced on 2nd and 3rd November his year.”
Issues To Consider From The Glencore Enforcement Action
This previous post highlighted the recent net $443 million Foreign Corrupt Practices Act enforcement action against Glencore.
This post highlighted the CFTC’s related enforcement action against the company.
This post discussed how the executive officer certification in the FCPA enforcement action sets up Glencore personnel to fail.
This post continues the analysis by highlighting additional issues to consider from the Glencore FCPA enforcement action.
Timeline
Dear Glencore Chief Executive Officer And Head Of Compliance: You Have Been Set Up To Fail
Foreign Corrupt Practices Act resolution documents have long contained: (i) legal standards that simply do not exist; (ii) internally inconsistent standards; and/or (iii) vague or ambiguous terms.
However, these issues now take on a greater importance given that the DOJ is apparently requiring (at least in some enforcement actions) – as a condition of settlement – executive officer certifications as to the company’s compliance program.
The recent Glencore FCPA enforcement action (see here for the prior post) contains a so-called Attachment H and as discussed in this post Glencore’s Chief Executive Officer and Head of Compliance (the contemplated signatories of the certification) have been set up to fail. Moreover, it is surprising that Glencore’s legal counsel (WilmerHale) allowed the company to agree to such a mess of a compliance certification.
The CFTC’s Bribery Related Enforcement Action Against Glencore
In 2019, the U.S. Commodity Futures Trading Commission (CFTC) issued an enforcement advisory concerning companies and individuals “that timely and voluntarily disclose to the Division violations of the Commodity Exchange Act involving foreign corrupt practices, where the voluntary disclosure is followed by full cooperation and appropriate remediation.” (See here).
Some claimed that the CFTC was going to begin investigating and prosecuting Foreign Corrupt Practices Act violations. This was false as the CFTC advisory clearly concerned violations of the Commodity Exchange Act.
Shortly thereafter, Glencore disclosed that the “CFTC is investigating whether Glencore and its subsidiaries may have violated certain provisions of the Commodity Exchange Act and/or CFTC Regulations through corrupt practices in connection with commodities.”