FCPA Professor will once again be the place to visit in January for a plethora of 2022 year in review statistics. But first, this post closes out the fourth quarter of 2022. (See here for the first quarter of 2022, here for the second quarter, and here for the third quarter).
DOJ Enforcement (Corporate)
The DOJ announced three corporate enforcement actions in the fourth quarter. DOJ recovery in these actions was net $129.3 million.
ABB (Dec. 2nd)
See here and here for prior posts.
Charges: ABB Management Services Ltd. (Switzerland) and ABB South Africa (Pty) Ltd (South Africa) were charged in criminal informations with conspiracy to violate the FCPA’s anti-bribery provisions; ABB was charged with conspiracy to violate the FCPA’s anti-bribery provisions, conspiracy to violate the FCPA books and records provisions, and substantive violations of the FCPA.
Resolution Vehicle: The charges against ABB Management Services and ABB South Africa were resolved through a plea agreement and the charges against ABB were resolved through a deferred prosecution agreement.
Guidelines Range: $240 million – 480 million.
Settlement: Net $72.5 million (after offsets for related foreign law enforcement investigations and SEC settlement).
Origin: As stated by the DOJ: “[W]ithin a very short time of learning of the misconduct, the Company contacted the Fraud Section and scheduled a meeting to discuss matters under investigation by the Fraud Section and the Company. The Company did not specifically identify the South Africa misconduct in that meeting request, but it disclosed the South Africa misconduct during the scheduled meeting, subsequently presented evidence to the Offices that it intended to disclose the misconduct related to South Africa during the scheduled meeting and did not know of any imminent media reports when the meeting was scheduled. However, before the scheduled meeting occurred and prior to making any such disclosure to the Fraud Section, a media report was published related the misconduct.”
Monitor: No
Individuals Charged: No
Honeywell (Dec. 19th)
See here and here for prior posts.
Charges: Criminal information charging UOP LLC with conspiracy to violate the FCPA’s anti-bribery provisions.
Resolution Vehicle: Deferred prosecution agreement.
Guidelines Range: $105.6 million to $211.3 million
Settlement: Net $39.6 million (after offsets for related foreign law enforcement investigations and SEC settlement).
Origin: Foreign law enforcement investigations.
Monitor: No
Individuals Charged: No
Safran (Dec. 21st)
See here for a prior post.
Charges: None.
Resolution Vehicle: A so-called declination with disgorgement.
Guidelines Range: Not mentioned in the letter agreement.
Settlement: $17.2 million.
Origin: Voluntary disclosure.
Monitor: No
Individuals Charged: No
DOJ Enforcement (Individual)
As highlighted here, the DOJ announced the unsealing of criminal charges against Asante Berko (a former Executive Director of Goldman Sachs International) alleging the same core conduct as the SEC’s 2020 enforcement action against Berko concerning conduct in Ghana.
SEC Enforcement (Corporate)
The SEC brought two corporate FCPA enforcement action in the fourth quarter. SEC recovery in these actions were approximately net $117.4 million.
ABB (Dec. 2nd)
See here and here for prior posts.
Charges: None (administrative order finding violations of the FCPA’s anti-bribery, books and records, and internal controls provisions)
Settlement: $75 million (civil penalty).
Origin: As stated by the DOJ: “[W]ithin a very short time of learning of the misconduct, the Company contacted the Fraud Section and scheduled a meeting to discuss matters under investigation by the Fraud Section and the Company. The Company did not specifically identify the South Africa misconduct in that meeting request, but it disclosed the South Africa misconduct during the scheduled meeting, subsequently presented evidence to the Offices that it intended to disclose the misconduct related to South Africa during the scheduled meeting and did not know of any imminent media reports when the meeting was scheduled. However, before the scheduled meeting occurred and prior to making any such disclosure to the Fraud Section, a media report was published related the misconduct.”
Individuals Charged: No
Related DOJ Enforcement Action: Yes.
Honeywell (Dec. 19th)
See here and here for prior posts.
Charges: None (administrative order finding violations of the FCPA’s anti-bribery, books and records, and internal controls provisions)
Settlement: $42.4 million (disgorgement of $33.8 million and prejudgment interest of $8.5 million)
Origin: Foreign law enforcement investigations.
Individuals Charged: No
Related DOJ Enforcement Action: Yes.
SEC Enforcement (Individual)
The SEC did not bring any individual FCPA enforcement actions in the fourth quarter.
Other Developments or Items of Interest
As highlighted here, in a pending criminal enforcement action, former Cognizant executives are seeking relief claiming that the government outsourced its investigation to Cognizant.
As discussed here, Ericsson attempted to put a positive spin on its monitor extension (even though it is not a positive development for the company).
As highlighted here, FCPA “tips” continue to be a minor component of the SEC’s overall whistleblower program. Speaking of which, the Second Circuit upheld the SEC’s denial of a whistleblower award in connection with an FCPA enforcement action. (see here).
SEC Commissioner Hester Peirce continues to object to various aspects of nearly every FCPA enforcement action.
As highlighted here, the OECD continues to prioritize quantity of enforcement actions over quality of enforcement actions and clearly does not like judicial scrutiny (neither does certain “civil society” groups – see here).
A medical services company was given the green light to file a restitution claim in connection with the Glencore FCPA enforcement action. As highlighted here, Glencore acknowledged the victim, but is disputing the amount owed.
An FCPA related “Caremark” claim was dismissed.
