This previous post highlighted the recent net $443 million Foreign Corrupt Practices Act enforcement action against Glencore.
This post highlighted the CFTC’s related enforcement action against the company.
This post discussed how the executive officer certification in the FCPA enforcement action sets up Glencore personnel to fail.
This post continues the analysis by highlighting additional issues to consider from the Glencore FCPA enforcement action.
Timeline
In mid-2018 Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland disclosed that it was under scrutiny by the DOJ. (See here for the prior post).
Specifically, the company disclosed:
“Glencore Ltd, a subsidiary of Glencore plc, has received a subpoena dated 2 July, 2018 from the US Department of Justice to produce documents and other records with respect to compliance with the Foreign Corrupt Practices Act and United States money laundering statutes. The requested documents relate to the Glencore Group’s business in Nigeria, the Democratic Republic of Congo and Venezuela from 2007 to present. Glencore is reviewing the subpoena and will provide further information in due course as appropriate.”
This previous post highlighted the recent net $59 million Foreign Corrupt Practices Act enforcement action against Stericycle (an Illinois based medical waste disposal company) for conduct in Brazil, Mexico, and Argentina.
Portions of the alleged conduct were egregious in that an executive of the company’s Latin America division orchestrated the bribery schemes and others associated with the company used “spreadsheets to track the bribe payments.”
Nevertheless, there are several legal and policy issues to consider from the enforcement action.
Timeline
As highlighted in this post, Stericycle disclosed its FCPA scrutiny in mid-2017.
Recently DOJ Criminal Division Assistant Attorney General Kenneth Polite delivered this speech.
He focused on the following topics: how the DOJ evaluates “corporate compliance programs to ensure that companies are designing and implementing effective compliance systems and controls, creating a culture of compliance, and promoting ethical values,” corporate monitors, DOJ compliance related resources, and the consequences for a company violating a DOJ resolution agreement.
Polite also announced that he has asked his “team to consider requiring both the Chief Executive Officer and the Chief Compliance Officer to certify at the end of the term of the agreement that the company’s compliance program is reasonably designed and implemented to detect and prevent violations of the law (based on the nature of the legal violation that gave rise to the resolution, as relevant), and is functioning effectively.”
During his speech, Polite used the words or concepts “detect and prevent” several times. Keep in mind however, that there is no relevant legal standard that requires corporate compliance programs to “detect and prevent” violations of law. For this reason among others, Polite’s policy suggestion is off-target.
Under scrutiny again, guilty plea, and for your listening enjoyment.
It’s all here in the Friday roundup.
Under Scrutiny Again
As highlighted in this prior post, in 2019 Russia-based Mobile TeleSystems PJSC (MTS) agreed to resolve an $850 million DOJ/SEC FCPA enforcement action based on the same alleged core conduct in several other Uzbekistan telecom focused FCPA enforcement actions. (See here and here). As a condition of settlement, MTS was required to retain an independent compliance monitor.
