This post provides a summary of Foreign Corrupt Practices Act enforcement activity and related developments from the fourth quarter of 2017. (See here for a similar post for the first quarter of 2017, here for the second quarter of 2017, and here for the third quarter of 2017).
DOJ Enforcement (Corporate)
The DOJ brought 2 corporate FCPA enforcement actions in the fourth quarter. DOJ recovery in these enforcement actions was $343.5 million (after accounting for various credits and deductions for contemplated related foreign law enforcement actions). Both of these actions also included related DOJ individual FCPA enforcement actions.
Keppel Offshore & Marine (Dec. 22nd)
See here, here and here for prior posts
Charges: Criminal information as to Keppel Offshore & Marine US (KOM USA) charging conspiracy to violate the FCPA’s anti-bribery provisions; criminal information as to Keppel (KOM) charging conspiracy to violate the FCPA’s anti-bribery provisions
Resolution Vehicle: As to KOM USA, plea agreement; as to KOM deferred prosecution agreement
Guidelines Range: $563 million to $1.1 billion
Settlement: $422 million reduced to $105.5 million after accounting for various credits for law enforcement actions in Singapore and Brazil
Origin: Foreign law enforcement action
Monitor: No
Individuals Charged by DOJ: Yes
SBM Offshore (Nov. 29th)
See here, here and here for prior posts
Charges: Criminal information as to SBM Offshore USA Inc. (SBM USA) charging conspiracy to violate the FCPA’s anti-bribery provisions; criminal information as to SBM Offshore charging conspiracy to violate the FCPA’s anti-bribery provisions
Resolution Vehicle: As to SBM USA, plea agreement; as to SBM Offshore deferred prosecution agreement
Guidelines Range: $4.5 billion to $9.0 billion
Settlement: $238 million
Origin: Voluntary disclosure (the DPA states: the Company did not receive voluntary disclosure credit because, although it voluntarily brought the conduct to the attention of the Fraud Section and to Dutch authorities, the disclosure did not occur for approximately one year and thus was not timely)
Monitor: No
Individuals Charged by DOJ: Yes
DOJ Enforcement (Individual)
The DOJ brought or announced 5 core enforcement actions against 11 individuals in fourth quarter.
As highlighted here, in connection with the Keppel Offshore & Marine enforcement action, the DOJ also charged Jeffrey Chow, a former senior manager of Keppel’s legal department, with conspiracy to violate the FCPA.
As highlighted here, related to a portion of the 2016 FCPA enforcement action against Embraer, the DOJ announced an enforcement action against former Embraer executive Colin Steven concerning conduct in Saudi Arabia.
As highlighted here, the DOJ announced an enforcement action Chi Ping Patrick Ho and Cheikh Gadio concerning conduct in Chad an Uganda.
As highlighted here, the DOJ announced an enforcement action against former SBM Offshore executives Anthony Mace and Robert Zubiate concerning conduct in Brazil, Angola and Equatorial Guinea.
As highlighted here, related to the January 2017 FCPA enforcement action against Rolls-Royce, the DOJ announced an enforcement action against various individuals associated with Rolls-Royce (Keith Barnett, Andreas Kohler, James Finley, Aloysius Zuurhout, and Petros Contoguris) concerning conduct in Kazakhstan.
SEC Enforcement (Corporate)
The SEC did not bring any enforcement actions in the fourth quarter.
SEC Enforcement (Individual)
The SEC did not bring any enforcement actions in the fourth quarter.
Other Developments or Items of Interest
As highlighted in this post, the FCPA turned 40.
As highlighted here, the DOJ announced a new “FCPA Corporate Enforcement Policy” (CEP) “aimed at providing additional benefits to companies based on their corporate behavior once they learn of misconduct.” This post rounds up eleven separate posts regarding the CEP and this article is titled “Grading the DOJ’s FCPA Corporate Enforcement Policy.”
As highlighted here, Acting Assistant Attorney General Kenneth Blanco delivered a recent FCPA speech and as highlighted here Steven Peikin (Co-Director of the SEC’s Enforcement Division) recently reflected on the past, present, and future of the SEC’s enforcement of the FCPA.
As highlighted here, Deputy AG Rod Rosenstein’s speech concerning multiple law enforcement and regulatory agencies pursuing a single entity for the same conduct is FCPA relevant. As highlighted in this post, Rosenstein stated: “corporate enforcement and settlement demands must always have a sound basis in the evidence and the law. We should never use the threat of federal enforcement unfairly to extract settlements.” Talk to FCPA practitioners and in-house counsel and many will tell you in a candid private moment that FCPA enforcement is often viewed in this way.
As highlighted in this post, FCPA “tips” continue to be a minor component of the SEC’s whistleblower program.
As highlighted in this post, (Walmart Executive V.P. and Global Chief Ethics and Compliance Officer) recently delivered a keynote address at “The FCPA at 40” symposium hosted by Texas A&M University School of Law. Jorgensen talked about the transformation of Walmart’s ethics and compliance program with a focus on anti-corruption and specifically discussed: Walmart’s approach to: third-party due diligence and payments; licenses and permits; donations and charitable contributions; financial controls; and enhanced training.
As highlighted in this post, the government of Canada announced that the exception allowing for facilitation payments under the Corruption of Foreign Public Officials Act will be eliminated effective October 31, 2017.
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