Issues To Consider From The Comcel Enforcement Action
Prior posts here, here, and here highlighted the recent $118.2 million Foreign Corrupt Practices Act enforcement action against Comunicaciones Celulares S.A. (“Comcel” doing business as TIGO Guatemala), a subsidiary of Millicom International Cellular, S.A, concerning bribery schemes in Guatemala.
This post continues the analysis by highlighting additional issues to consider.
Guatemala
The Comcel enforcement action is believed to be just the second FCPA enforcement action in history to concern conduct in Guatemala.
As highlighted here, a portion of the wide-ranging 2016 FCPA enforcement action against Odebrecht / Braskem concerned conduct in Guatemala – specifically payments to government officials in order to secure public works contracts.
A Closer Look At The Comcel Enforcement Action
This previous post briefly highlighted the FCPA enforcement action against Comunicaciones Celulares S.A. (“Comcel”), a subsidiary of Millicom International Cellular, S.A. (“Millicom” – a telecommunications company incorporated and headquartered in Luxembourg with its principal place of business in Florida).
This post takes a closer look at the $118.2 million enforcement action.
In terms of background, Comcel was doing business as TIGO Guatemala and was a mobile and fixed telecommunications service provider with its principal place of business in Guatemala. During the relevant period, TIGO Guatemala was jointly owned by Millicom (55%) and a Panamanian company (“Panama Company” (45%) (Telecomunicaciones Digitales, S.A. (Cable Onda or Tigo Panama).
On or about November 12, 2021 , Millicom purchased Panama Company’s share of TIGO Guatemala for approximately $2.2 billion. Since then, TIGO Guatemala has been wholly-owned by Millicom.
Latin America in Flux: Recent Anti-Corruption Developments
Today’s post is from Debevoise attorneys Andrew Levine, Matthew French, and Nestor Almeida. (See here for a version of this post with footnotes).
In recent years – and notwithstanding encouraging windows of progress – economic difficulties, political shifts, and the pandemic’s lingering effects have undercut anti-corruption efforts in Latin America. The fourth annual Capacity to Combat Corruption Index (“CCC Index”), published in June 2022, reflects these recent challenges. Most countries in Latin America experienced declines in their assessed anti-corruption capabilities, with only a few demonstrating stability or improvement.
DOJ To Increase Its Focus On Investigations, Prosecutions, And Asset Recoveries Relating To Corruption In Northern Triangle Countries
Presumably in connection with the visit by Vice President Kamala Harris to Guatemala, earlier this week U.S. Attorney General Merrick Garland “announced a series of steps that the Department of Justice is taking to address the threats posed by both corruption and by transnational human smuggling and trafficking networks” in Central America.
The main focus of the establishment of so-called “Joint Task Force Alpha” will be “to enhance U.S. enforcement efforts against the most prolific and dangerous human smuggling and trafficking groups operating in Mexico and the Northern Triangle countries of Guatemala, El Salvador, and Honduras.”
In addition, the DOJ release states: “Joint Task Force Alpha will also complement the Justice Department’s efforts to fight corruption. The Justice Department will increase its focus on investigations, prosecutions, and asset recoveries relating to corruption in Northern Triangle countries through its Foreign Corrupt Practices Act enforcement program, counternarcotics prosecutions, and Kleptocracy Asset Recovery Initiative.”
Odebrecht / Braskem Bribery Schemes Net Approximate $420 Million FCPA Enforcement Action
Yesterday, the DOJ and SEC announced (here and here) a Foreign Corrupt Practices Act enforcement action against Odebrecht S.A. (a Brazilian holding company) and Braskem S.A. (a Brazil-based petrochemical company in which Odebrecht owns 50.1% of the voting shares, 38.1% of the total share capital and which Odebrecht “effectively controlled” according to the DOJ). Braskem has American Depositary Receipts registered with the SEC and traded on the NYSE and thus the enforcement action also included an SEC component.
Perhaps because of the less than clear DOJ release (clear once one actually reads the original source documents), this action is being reported in various places as a $3.5 billion FCPA enforcement action. While that figure represents the overall global settlement amount (Brazil and Swiss law enforcement also brought related actions), yesterday’s action was most certainly not a $3.5 billion FCPA enforcement action. Not even close.