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The Origins Of 2021 Corporate Enforcement Actions

This recent post [1] compared corporate FCPA enforcement actions in 2021 to prior years. However, before a Foreign Corrupt Practices Act enforcement action is announced, scrutiny must first arise.

This post highlights the origins of the four core corporate enforcement actions in 2021. (See here [2] for a similar post highlighting the origins of 2020 corporate enforcement actions; here [3] for 2019, here [4] for 2018, here [5] for 2017, and here [6] for 2016).

Compared to prior years, this year in review statistic (like many from 2021) is less than enlightening given the small number of corporate enforcement actions in 2021 coupled with the fact that the specific origin of an enforcement action is often dependent on information contained in a resolution document.

Deutsche Bank

The company previously disclosed [7]: “Certain regulators and law enforcement authorities in various jurisdictions, including the SEC and the DOJ, are investigating, among other things, Deutsche Bank’s compliance with the U.S. Foreign Corrupt Practices Act and other laws with respect to the Bank’s engagement of finders and consultants.”

In resolving the matter, the DOJ stated: “the Company did not receive voluntary disclosure credit pursuant to the FCPA Corporate Enforcement Policy in the Department of Justice Manual 9-47.120, or pursuant to the Sentencing Guidelines, because it did not voluntarily and timely self-disclose to the Offices the FCPA conduct described in the Statement of Facts.”

Amec Foster Wheeler

The company previously disclosed [8]: “Amec Foster Wheeler has received voluntary requests for information from, and continues to cooperate with, the SEC and the US Department of Justice (‘DOJ’) regarding the historical use of agents by Foster Wheeler, primarily in the Middle East, and certain of the Company’s other business counterparties in that region. In addition, the Company has provided information relating to the historical use of third parties by Foster Wheeler and certain of its operations to the DOJ and SEC in other regions. The Company has also made a disclosure to the UK Serious Fraud Office. Given the stage of these matters, it is not possible to estimate reliably what effect the outcome that any investigation or any regulatory determination may have on the Company.”

In resolving the matter, the DOJ stated: “the Company did not receive voluntary disclosure credit pursuant to the FCPA Corporate Enforcement Policy … or pursuant to the Sentencing Guidelines, because it did not voluntarily and timely self-disclose ….”.

WPP

Unclear from the resolution documents and (unlike most issuers under scrutiny), it does not appear that WPP disclosed its scrutiny.

Credit Suisse

Unclear from the SEC resolution documents.

In 2017, the company disclosed [9]: “Credit Suisse is responding to requests from regulatory and enforcement authorities related to Credit Suisse’s arrangement of loan financing to Mozambique state enterprises, Proindicus S.A. and Empresa Mocambiacana de Atum S.A. (EMATUM), a distribution to private investors of loan participation notes (LPN) related to the EMATUM financing in September 2013, and Credit Suisse’s subsequent role in arranging the exchange of those LPNs for Eurobonds issued by the Republic of Mozambique. Credit Suisse has been cooperating with the authorities on this matter.”

In a related (non-FCPA) enforcement action, the DOJ stated: “the Company did not receive voluntary disclosure credit pursuant to the FCPA Corporate Enforcement Policy in the Department of Justice Manual § 9-47.120, or pursuant to the Sentencing Guidelines, because it did not voluntarily and timely self-disclose to the Offices the conduct described in the Statement of Facts.”

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