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UK Supreme Court Rules That SFO Cannot Require Foreign Companies To Produce Documents Held Overseas

Judicial Decision

[A guest post from Debevoise & Plimpton attorneys Karolos Seeger, Jane Shvets, Robin Loof, Thomas Jenkins and Andrew Lee]

On February 5th, the UK Supreme Court handed down a highly-anticipated judgment, holding that the Serious Fraud Office (“SFO”) cannot issue a notice (a “section 2 Notice”) under s2(3) of the Criminal Justice Act 1987 (“CJA”) requiring a foreign company with no UK presence to produce material. Basing its decision on international comity, the construction of the CJA and subsequent legislative developments, including the adoption of mutual legal assistance agreements, the UK Supreme Court confined the use of section 2 Notices to UK companies and (possibly) foreign companies established or carrying on business in the UK.

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Second Circuit Affirms Ho’s FCPA And Related Convictions

Ho

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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Vitol Resolves Net $90 Million FCPA Enforcement Action For Conduct In Brazil, Ecuador And Mexico

vitol

Last week the DOJ announced that Vitol Inc., the U.S. affiliate of the Vitol group of companies, which together form one of the largest energy trading companies in the world, agreed to resolve a net $90 million FCPA enforcement action for conduct in Brazil, Ecuador and Mexico.

As noted in the DOJ release (and as will be explored in a future post) “Vitol has also agreed to disgorge more than $12.7 million to the Commodity Futures Trading Commission (CFTC) in a related matter and to pay the CFTC a penalty of $16 million related to trading activity not covered” by the DOJ enforcement action.

Under the heading “The Brazil Bribery Scheme” this criminal information alleges:

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Issues To Consider From The J&F Enforcement Action

Issues

This previous post summarized the recent $155 million FCPA enforcement action against J&F Investimentos S.A. (a Brazilian holding company) and a related entity for allegedly bribing Brazilian officials.

This post continues the analysis by highlighting additional issues to consider.

Piling On

The DOJ can claim that it has an anti-piling on policy (see here). However, piling on is precisely what the DOJ (and SEC) did in the recent enforcement action.

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Brazilian Company Bribes Brazilian Officials, U.S. Collects Net $155 Million In FCPA Enforcement Action

J&F

This recent post posed the question of whether “foreign” in the FCPA’s “foreign official” element means as it relates to the U.S. or as it relates to the specific company at issue. The post highlighted how in recent years the FCPA enforcement agencies have adopted the former interpretation in bringing FCPA enforcement actions against foreign companies for allegedly bribing their own “domestic” officials – but “foreign” as it relates to the U.S.

In yet another example, the DOJ and SEC announced yesterday (see here and here) that J&F Investimentos S.A. (J&F a private investment holding company based in Brazil that owns approximately 250 companies primarily involved in the meat and agriculture business) and a related entity resolved a net $155 million FCPA enforcement action for allegedly bribing Brazilian officials.

The enforcement action involved a: (i) DOJ component against J&F resolved through a plea agreement in which the company paid net $128.2 million; and (ii) an SEC component against J&F, a related entity, and two individuals in which the related entity paid approximately $26.8 million and the two individuals each paid a $550,000 civil penalty.

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