Inability to Pay Archives - FCPA Professor

On Sale: Corsa Coal Resolves $1.2 Million Enforcement Action After The DOJ Concludes It Is Unable To Pay The Remaining $31.5 Disgorgement Amount

By Mike Koehler on March 14, 2023 in 2023 Enforcement Action, Coal Industry, Corsa Coal, DOJ Enforcement Action, Egypt, Inability to Pay

In 2021, the DOJ announced that Frederick Cushmore Jr. (an individual employed by Corsa Coal in various international sales positions) was criminally charged and plead guilty to a conspiracy charge to violate the FCPA’s anti-bribery provisions in connection with a bribery scheme in Egypt. (See here for the prior post).

In 2022, the DOJ announced that Charles Hunter Hobson (an individual employed by Corsa Coal in a variety of roles) was also criminally charged in connection with the same core conduct. (See here for the prior post). The enforcement action against Hobson remains active with the next status conference scheduled for April 3rd.

Recently, the DOJ posted this “declination with disgorgement” letter to Corsa Coal’s counsel on its FCPA website.

Sargeant Marine Cements $16.6 FCPA Resolution With DOJ Regarding Bribery Schemes In Brazil, Venezuela, And Ecuador

By Mike Koehler on September 24, 2020 in 2020 Enforcement Action, Asphalt Industry, Brazil, Daniel Sargeant, David Diaz, DOJ Enforcement Action, E-Mail Issues, Ecuador, Gaining Access to Confidential Documents, Hector Nunez Troyano, Inability to Pay, Jose Tomas Meneses, Luiz Eduardo Andrade, Purchasing a Product, Roberto Finocchi, Sargeant Marine, Third Parties, Venezuela

Earlier this week, the DOJ announced that Sargeant Marine Inc. (SMI – an asphalt company based in Florida) “pleaded guilty and agreed to pay $16.6 million to resolve foreign bribery charges stemming from conduct by the company and its employees and agents in Brazil, Venezuela and Ecuador.”

The total criminal penalty was actually $90 million, but because of SMI’s “inability to pay” the settlement amount was only $16.6 million.

FCPA Enforcement Officials Address COVID-19 Related Questions

By Mike Koehler on May 21, 2020 in Cooperation, COVID-19, Enforcement Agency Policy, Enforcement Agency Speeches, Inability to Pay

Earlier this week, Daniel Kahn (Sentior Deputy Chief, DOJ Criminal Division – Fraud Section) and Charles Cain (SEC FCPA Unit Chief) participated in this webinar.

During the webinar, Kahn and Cain addressed a variety questions related to their respective enforcement agencies relative to the COVID-19 crisis.

Set forth below are the issues addressed and their responses.

FCPA Flash Podcast – A Conversation With Former DOJ Deputy Assistant Attorney General Matthew Miner On DOJ Policy During The COVID-19 Crisis

By Mike Koehler on April 16, 2020 in Compliance, Compliance Defense, COVID-19, DOJ, DOJ Evaluation of Corporate Compliance Programs, DOJ FCPA Corporate Enforcement Policy, Enforcement Agency Policy, FCPA Flash, Inability to Pay

The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash podcast episode is a conversation with Matthew Miner (Morgan Lewis – who recently served as DOJ Deputy Assistant Attorney General in the Criminal Division). While at the DOJ, Miner helped to develop various DOJ policy documents including its “inability to pay” guidance (see here), the FCPA Corporate Enforcement Policy (see here), and the Evaluation of Corporate Compliance Programs (see here). During the podcast, Miner discusses how these various DOJ policies are likely to be interpreted during the COVID-19 crisis.

Facade Of Enforcement Across The Pond

By Mike Koehler on January 8, 2020 in 2019 Enforcement Actions, Andrew Bell, Dr Cansun, Gaining Access to Confidential Documents, Inability to Pay, Natalie Pearce, South Korea, United Kingdom

A facade of Foreign Corrupt Practices Act enforcement is when a business organization – often for reasons of risk aversion and efficiency – agrees to resolve an enforcement action in the absence of any judicial scrutiny even though no employee or agent of the company (business organizations obviously can only act through real human beings) was charged. (See here for the article “The Facade of FCPA Enforcement” and here for the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement.”)

Even more troubling is when employees are charged, put the government to its burden of proof, are acquitted yet the business organization still resolves an enforcement action based on the same underlying conduct.

This 2014 post, published after the United Kingdom formally adopted deferred prosecution agreements, was titled “The U.K. Enters the Facade Era.” As discussed below, recently there was a major facade moment in the U.K.

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On Sale: Corsa Coal Resolves $1.2 Million Enforcement Action After The DOJ Concludes It Is Unable To Pay The Remaining $31.5 Disgorgement Amount

Sargeant Marine Cements $16.6 FCPA Resolution With DOJ Regarding Bribery Schemes In Brazil, Venezuela, And Ecuador

FCPA Enforcement Officials Address COVID-19 Related Questions

FCPA Flash Podcast – A Conversation With Former DOJ Deputy Assistant Attorney General Matthew Miner On DOJ Policy During The COVID-19 Crisis

Facade Of Enforcement Across The Pond

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