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Friday Roundup

What the ….?, FCPA Scrutiny?, and in settlement talks.

It’s all here in the Friday roundup.

What The ….?

There have been some things written about the Foreign Corrupt Practices Act in recent years that should cause anyone reasonably well informed individual to shake their head in disbelief and ask what the …?

For instance, this [1] piece states:

“Almost immediately, [President Trump] set about trying to dismantle [the Foreign Corrupt Practices Act], along with our entire suite of programs that criminalize foreign bribery. […] And while the FCPA remained in force, the total number of related enforcement actions declined substantially under Trump.”

What the ….?

Likewise, this post [2] asserts:

“The United States has a long history, across administrations of both parties, of showing leadership internationally in the fight against corruption. The passage and enforcement of the Foreign Corrupt Practices Act (FCPA) has served as an example for other countries to adopt their own transnational anti-bribery laws. Additionally, the United States has championed international anti-bribery efforts in multilateral organizations and worked to build coalitions to root out all types of corruption. For the last several years, however, U.S. has faltered.”

What the ….?

Ready for some actual facts showing FCPA enforcement, both in terms of the number of actions as well as settlement amounts, over the last approximate decade including during the four year period 2016 – 2020? See here [3] and here [4]. (Keep in mind as well that to the extent COVID impacted 2020 FCPA enforcement, its impact was likely strongest in individual FCPA enforcement actions as the pandemic disrupted the grand jury process).

In short, there has been some strange …. written about the FCPA in the last several years and hopefully facts – not narratives – become the focus again going forward.

FCPA Scrutiny?

According to this Law360 article [5]:

“A former WilmerHale attorney who now works at the White House has been subpoenaed after a former temp accused him of lying under oath to help Toyota cover up corrupt practices in Thailand, including hiding defects in some of its car models.  Michael Posada was subpoenaed Tuesday and is one of several former WilmerHale lawyers at the White House who have been called to testify in Florida state court in the case brought by Andrew Delaney, a former Big Law attorney who worked for a staffing agency under WilmerHale’s direction on an internal investigation for Toyota. As part of the alleged cover-up, Delaney claims, Posada falsely told a judge during a sealed hearing in December that he did not know about allegations Toyota engaged in corruption in Thailand — which Delaney says include hiding serious defects — even though Posada oversaw a document review allegedly triggered by Toyota’s own concerns about Foreign Corrupt Practices Act liability.”

Settlement Talks

As highlighted in this prior post [6], in late 2016 the DOJ and SEC brought a Foreign Corrupt Practices Act enforcement action against Odebrecht S.A. (a Brazilian holding company) and Braskem S.A. (a Brazil-based petrochemical company with shares traded on the NYSE in which Odebrecht owned a majority of voting shares). While the principal focus of the DOJ’s action (and the exclusive focus of the SEC action) concerned conduct in Brazil including the companies relationships with Petrobras, the DOJ action also alleges improper payments in Angola, Argentina, Brazil, Colombia, Dominican Republic, Ecuador, Guatemala, Mexico, Mozambique, Panama, Peru, and Venezuela.

As highlighted in this prior post [7], in November 2019, in connection with the Brazil prong of the Odebrecht and Braskem enforcement action, the DOJ criminally charged Jose Carlos Grubisich (a citizen of Brazil who served as the CEO and a member of the board of directors of Braskem, as well as in various capacities for Odebrecht) with one count of conspiracy to violate the anti-bribery provision of the FCPA, one count of conspiracy to violate the books and records provision of the FCPA and to fail as a corporate officer to certify financial reports and one count of conspiracy to commit international money laundering.

The Wall Street Journal recently reported [8]:

“[Grubisich] is in talks with U.S. prosecutors to settle charges stemming from his alleged role in a scheme to create a slush fund for illegal bribes, according to a court filing. […]  After pleading not guilty, Mr. Grubisich was released on bail in March last year while he prepared for trial. His lawyer in a [recent] letter …. asked a judge overseeing the case to delay a status conference, saying parties were engaged in discussions regarding a potential resolution of the case.”

[9]