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Stimler Enforcement Action – The Consequential E-Mail

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Yesterday’s post highlighted the Foreign Corrupt Practices Act (and related) enforcement action against Anthony Stimler (a U.K. citizen and resident who was a trader at Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland).

The FCPA anti-bribery charge against Stimler invoked the so-called 78dd-3 prong of the statute which has the most demanding jurisdictional hook.

Specifically, “while in the territory of the United States, corruptly to make use of the mails or any means or instrumentality of interstate commerce or to do any other act in furtherance of an offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to” a foreign official.

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U.K. Companies Resolve Net $17.7 Million FCPA Enforcement Action Concerning Conduct In Brazil

WoodFoster

Approximately 7-10 years ago, a U.K. corporation (#1) engaged in alleged improper conduct with alleged Brazilian officials largely through a Brazilian intermediary company with the assistance of an Italian agent. Approximately 7 years ago, a different U.K. corporation (#2) acquired U.K. corporation #1 and then approximately 4 years ago another U.K. corporation (#3) acquired U.K. corporation #2.

And then, the U.S. government brought an FCPA enforcement action against U.K. corporation #1 because, at one time, the company had shares traded on NASDAQ – even though in connection with the same core conduct the U.K. Serious Fraud Office and Brazil law enforcement also brought an enforcement action.

That pretty much sums up last Friday’s net $17.7 million FCPA enforcement action against Amec Foster Wheeler Energy, which was acquired by Amec Plc in 2014, which in turn, was acquired by John Wood Group Plc in 2017.

The enforcement action was the first corporate FCPA enforcement action of the Biden administration and closed the approximate six month gap in corporate FCPA enforcement.

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DOJ Announces FCPA And Related Charges In Relation To Griffiths Energy International’s Bribery Scheme Involving Chad

Chad

These pages have followed the bribery enforcement action against Canada based Griffiths Energy International (GEI) and related issues for quite a long time.

As highlighted in this post, in 2013 Canadian law enforcement brought an enforcement action against GEI under Canada’s Corruption of Foreign Public Officials Act regarding the company’s efforts to obtain a production sharing contract with the African nation of Chad to provide GEI with the exclusive right to explore and develop oil and gas reserves and resources in southern Chad.  As noted in the prior post, in resolving the action, GEI acknowledged that it “directly agreed to provide, and indirectly provided, improper benefits to a Chadian public official in order to further the business objectives of GEI and its subsidiaries.”  The public official was Chad’s Ambassador to Canada, Mahamoud Adam Bechir, and by extension his wife Ms. Nouracham Niam.  Because Chad had no embassy located in Canada, the Ambassador resided in Washington D.C. and the previous post wondered if the DOJ would get involved.

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Motion To Dismiss Argues That The DOJ’s Case “Continues The Worrisome Trend By The DOJ To Stretch The Reach Of The United States’ Criminal Statutes Beyond Congress’ Intent In An Attempt To Police The World”

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As highlighted in this prior post, in 2019 Daisy Rafoi-Bleuler (a citizen of Switzerland and partner in a Swiss Wealth Management firm) became the latest individual to be criminally charged with Foreign Corrupt Practices Act offenses for allegedly directing bribes to various individuals at Venezuela’s state-owned and state-controlled energy company, PDVSA.

According to the DOJ, Rafoi opened Swiss bank accounts and facilitated financial transactions for various co-conspirators to help facilitate the bribery scheme.

As highlighted in this post, in late October 2020, Rafoi-Bleuler (through her counsel Matthew Reinhard, Andrew Wise, and Margot Laporte at Miller & Chevalier) filed a motion to dismiss the criminal charges against her.

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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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