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Issues To Consider From The Albemarle Enforcement Action

Issues

This recent post highlighted the net $218.4 million enforcement action against chemical company Albemarle Corp.

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

Timeline

As highlighted in this prior post, in February 2018 Albemarle Corp. disclosed scrutiny. Specifically, the company disclosed:

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“That Cognizant Was Acting In Furtherance Of Generally Applicable Government Policies Does Not Render All Of Its Actions State Actions”

Judicial Decision

As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, in early 2019 the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.

As highlighted in this prior post, in late 2022 the individuals filed motions claiming that the government outsourced its investigation to Cognizant.

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Former Cognizant Executives Seek Relief – Claiming That The Government Outsourced Its Investigation To Cognizant

outsource

As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, in early 2019 the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.

The case against the former executives remains active and recently Schwartz and Coburn filed motions seeking various forms of relief claiming that the government outsourced its investigation to Cognizant.  Continue Reading

Glencore … In Its Own Words

justsaying

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 recent sentencing submission by Glencore makes for an interesting read.

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Ng Files Motion To Dismiss

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As highlighted in this prior post, in November 2018 the DOJ criminally charged former Goldman Sachs executives Tim Leissner and Ng Chong Hwa (Roger Ng) (along with Low Taek Jho – Jho Low) with Foreign Corrupt Practices Act offenses for paying bribes to various Malaysian and Abu Dhabi officials in connection with 1Malaysia Development Berhad (1MDB), Malaysia’s state-owned and state-controlled investment development company.

Leissner pleaded guilty and in October Goldman Sachs resolved a net $1.66 billion FCPA enforcement action based on the same conduct. (See additional posts here and here).

Ng is mounting a defense and recently filed this motion to dismiss (an entire section of which is redacted). As highlighted below, Ng argues that the DOJ’s case against him suffers from several factual errors and legal deficiencies. Ng also suggests that the DOJ scripted Leissner’s guilty plea and that Goldman’s DPA was entered into for reasons of risk aversion and otherwise compromises his ability to defend himself.

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