As highlighted here, in May 2022 Glencore (a commodities company incorporated in the United Kingdom and headquartered in Switzerland) resolved a net $443 million FCPA enforcement action.
According to the DOJ: “From at least in or about 2007 up to and including in or about 2018, Glencore, through certain of its employees and agents, while acting on behalf of Glencore, together with its co-conspirators, knowingly and willfully conspired and agreed with others to corruptly provide more than $100 million in payments and other things of value to various intermediaries with the intent that a significant portion of these payments would be used to pay bribes to and for the benefit of foreign officials to secure an improper advantage and to influence those foreign officials in order to obtain or retain business in Nigeria, Cameroon, Ivory Coast, Equatorial Guinea, Brazil, Venezuela, and the Democratic Republic of Congo.”
A recent sentencing submission by Glencore makes for an interesting read.
In pertinent part, it states:
“The Company’s cooperation spanned four years and included the production of over a million documents, most of which were beyond the subpoena power of the DOJ, and regular and vital disclosures to the government of the findings of the Company’s internal investigation. Moreover, since even before the government’s investigation, the Company has engaged in an iterative remediation process that has resulted in the departure of all the employees involved in the identified misconduct and a complete overhaul of the Company’s compliance program.
The Company made a decision to cooperate with the DOJ’ s investigation within days of receiving the first subpoena in July 2018, and it continued to cooperate over the course of the nearly four-year investigation. The Company’s cooperation included the disclosure of the facts that form the backbone of any DOJ case against individuals, the production of more than a million documents, most of which were located outside the United States and in the custody of entities beyond the reach of DOJ’s subpoenas, and regular updates on the findings of the investigation including on matters outside the scope of the subpoenas served on the Company.
The Company affirmatively disclosed and provided detailed factual presentations on the misconduct it found, identifying numerous culpable individuals, without regard to their seniority at the Company. Indeed, at our very first substantive meeting in November 2018-just four months after receiving the government’s first subpoena-the Company presented on several of the most damning documents pertaining to the core of the oil department case, which constitutes the bulk of the misconduct. Just a few months later, in February 2019, the Company disclosed key additional findings on which the government’s case now rests. With respect to the Democratic Republic of the Congo (“DRC”) misconduct, the case is even starker. All of the evidence that forms the basis of the DRC-related case was discovered by the Company during the course of its investigation and then presented to DOJ by the Company. All that evidence was located outside the United States, and much of it was not encompassed even by the Department’s later DRC-related request for material maintained in Switzerland.
[A footnoted stated: “Because of Swiss criminal blocking statutes, the Company was not permitted to produced material voluntarily from Switzerland. The Company therefore worked with the Department to craft requests that the Department then put to the Swiss Federal Office of Justice (“FOJ”) pursuant to the U.S.-Swiss Mutual Legal Assistance Treaty. The Swiss then issued production instructions to the Company, with which the Company complied by producing material to the FOJ for delivery on to the Department. The Company helped to considerably expedite the subsequent, rolling productions to the Department by consenting to a simplified execution of the MLAT request (waiver of rights).”]
The Company also retained forensic accountants to support the investigation. Those accountants extracted and reviewed tens of thousands of trades and transactions over a decade-long period from more than half a dozen different systems. They provided extensive financial analysis to the government in regular and detailed presentations; that analysis assisted in the identification of the underlying misconduct and supported the calculation of illicit proceeds. The forensic assistance alone saved the government months of work that would have been required to sift through and reconcile the data in numerous incompatible financial and trading systems and platforms-assuming that the Department could have completed such analyses at all without the Company’s guidance and assistance.
The facts disclosed and the documents voluntarily produced by the Company form the core of the conduct alleged in the Information, and much of this material simply would not have been available to the government without the Company’s cooperation.
Throughout the investigation, the Company brought to the government’s attention information it learned about the Glencore Group’s employees, including some of the most senior employees in the Group. In meetings with the government, the Company presented on facts relevant to individual wrongdoers to assist in their potential prosecution. In particular, the first presentation in November 2018 described the involvement of senior executives in the misconduct, several of whom are referenced in the Information. The next presentation in February 2019 focused on the facts learned pertaining to one then-current employee, who, not long after the presentation, began cooperating with the government’s investigation. The Company’s investigation and the evidence the Company developed and provided to the Department prompted that employee to cooperate in the DOJ’s investigation, leading ultimately to his prosecution and plea.
The Company has never shied from identifying the individuals involved in the misconduct identified, regardless of those individuals’ seniority.
Starting before the DOJ initiated an investigation .and continuing over the past five years, the Company has invested substantial resources to build and implement a top-tier ethics and compliance program designed to identify and mitigate the diverse risks the Company faces, as well as to detect and remediate any deficiencies in its compliance controls on an ongoing basis. In this period, the Company has appointed a dedicated Head of Compliance, who now runs a centralized independent compliance function with a total of 77 full-time members (compared with 15 in 2016). The group compliance function is supported by 124 employees across the group, including 20 full-time local compliance officers, 51 part-time compliance coordinators, and 53 compliance support personnel. It has also launched several new and updated Company-wide compliance policies and procedures, supplemented existing procedures for risk-based due diligence for intermediaries, 26 and revised processes and procedures for its Raising Concerns Program to strengthen the process for managing and investigating employee concerns regarding potential breaches of the Company’s code or policies. These efforts, among others, have been publicly presented on its website, in its Annual Reports and its 2022 Ethics and Compliance Report and underscore the importance the Company places on ethics on compliance.”