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“The SEC Penalty Racket”

By on March 28, 2023 in Civil Penalties, Flutter International, Rio Tinto, SEC
SEC

Russ Ryan spent ten years in the SEC’s Division of Enforcement, including his last three years as Assistant Director of the Enforcement Division. He also spent substantial time in private practice at King & Spalding and is currently Senior Litigation Counsel at the New Civil Liberties Alliance.

Ryan is one of the best commentators around on many SEC issues and his candor is delightful.

His latest piece published on his LinkedIn page is titled “The SEC Penalty Racket” and it discusses two recent SEC FCPA enforcement actions against Rio Tinto and Flutter International (see prior posts here and here) to illustrate the SEC’s “largely unchecked power to shake down companies with astronomical penalties that far exceed statutory limits set by Congress.”

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Issues To Consider From The Rio Tinto And Flutter International Enforcement Actions

By on March 15, 2023 in Compliance, Flutter International, Gray Cloud, Lobbying, Rio Tinto, Third Parties
Issues

Previous posts here and here discussed the $15 million FCPA enforcement action against Rio Tinto and the $4 million FCPA enforcement action against Flutter International.

This post highlights additional issues to consider.

Interesting

While one would like to think that FCPA enforcement actions “just happen” when they are ready to happen, certain FCPA enforcement actions are seemingly timed to coincide with a company’s reporting cycle, government enforcement “marketing,” or other issues.

Separate FCPA enforcement actions announced on the same day are rare.

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SEC Extracts $15 Million From Rio Tinto In First Corporate Enforcement Action Of 2023

By on March 7, 2023 in 2023 Enforcement Action, Foreign Issuers, Guinea, Mining Industry, Political Contributions, Rio Tinto, SEC Enforcement Action, Third Parties, Unsuccessful Bribery Schemes
RioTinto

In the minds of some (including former FCPA enforcement officials – see here), Foreign Corrupt Practices Act enforcement is a convenient cash cow for the U.S. government.

Those who believe this will find new support in the first corporate FCPA enforcement action of 2023.

The basic findings are as follows.

Approximately 12 years ago, Rio Tinto (a metal and mining company with headquarters in Australia and the United Kingdom) hired a French investment banker and close friend of a former senior Guinean government official as a consultant to help the company retain mining rights in Guinea.

Even though both Australia and the United Kingdom have laws and law enforcement resources to adequately address the conduct at issue, the U.S. nevertheless extracted $15 million from Rio Tinto because the company had American Depository Shares that traded on a U.S. exchange.

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Judge Finds The Term Instrumentality “Unclear” And Narrowly Construes “Foreign Official” Element Contrary To The DOJ’s Position

By on September 10, 2018 in FCPA Jurisprudence, Foreign Official, Internal Controls, Knowledge, Related Civil Litigation, Rio Tinto
Judicial Decision

There is little substantive Foreign Corrupt Practices Act case law, even fewer judicial decisions of precedent. Nevertheless, in the aftermath of FCPA enforcement actions or merely FCPA scrutiny, plaintiffs counsel (no doubt representing shareholders on a contingent fee basis) frequently file securities fraud class actions hoping some get past the motion to dismiss stage.

In deciding motions to dismiss, federal trial court judges occasionally directly comment upon FCPA issues and this post highlights a recent example in a matter involving Rio Tinto. As discussed below, a federal court judge found the term “instrumentality” in the FCPA’s “foreign official” definition “unclear” and otherwise narrowly construed the term in a way contrary to the DOJ’s current position.

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Friday Roundup

By on July 28, 2017 in Amadeus Richers, America Movil, Baxter International, Deferred Prosecution Agreements, Haiti Teleco Enforcement Actions, IBM, Net 1, Non-Prosecution Agreement, Rio Tinto, Year in Review 2017
Roundup

Guilty plea, scrutiny alerts, and for the reading stack. It’s all here in the Friday roundup.

Guilty Plea

As highlighted in this prior post, in July 2011 the DOJ criminally charged Amadeus Richers (a former director of Cinergy Telecommunications with one count of conspiracy to violate the FCPA and to commit wire fraud, six counts of FCPA violations, one count of conspiracy to commit money laundering and 19 counts of money laundering) in the sprawling Haiti Teleco enforcement action.

Although Richers was indicted, he remained a fugitive until his arrest and ultimately his extradition from Panama on February 23, 2017.

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