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Scrutiny Alerts

This post provides updates on three company’s FCPA scrutiny:  Kraft, Brookfield Asset Management, and H-P.


In February 2010, Kraft acquired Cadbury, and with that, Cadbury’s Baddi, India facility which churns out various chocolates.  Producing chocolates for the mouths of the masses is, all things considered, a low FCPA risk activity.  But alas, company employees had to interact with India’s legendary bureaucracy in regards to licenses, permits, and excise tax issues.  Therein was the FCPA risk as detailed in this recent Forbes India article.

In its most recent quarterly filing (here) the company stated as follows.

“A compliant and ethical corporate culture, which includes adhering to laws and industry regulations in all jurisdictions in which we do business, is integral to our success. Accordingly, after we acquired Cadbury in February 2010 we began reviewing and adjusting, as needed, Cadbury’s operations in light of U.S. and international standards as well as our policies and practices. We initially focused on such high priority areas as food safety, the Foreign Corrupt Practices Act (“FCPA”) and antitrust. Based upon Cadbury’s pre-acquisition policies and compliance programs and our post-acquisition reviews, our preliminary findings indicated that Cadbury’s overall state of compliance was sound. Nonetheless, through our reviews, we determined that in certain jurisdictions, including India, there appeared to be facts and circumstances warranting further investigation. We are continuing our investigations in certain jurisdictions, including in India, and we continue to cooperate with governmental authorities.  As we previously disclosed, on February 1, 2011, we received a subpoena from the SEC in connection with an investigation under the FCPA, primarily related to a Cadbury facility in India that we acquired in the Cadbury acquisition. The subpoena primarily requests information regarding dealings with Indian governmental agencies and officials to obtain approvals related to the operation of that facility. We are cooperating with the U.S. and Indian governments in their investigations of these matters.”

Brookfield Asset Management

The Wall Street Journal reported last week (here – “Brookfield Faces Brazil Accusations”) that “Brazilian authorities are investigating allegations that an executive at Brookfield bribed Sao Paulo officials to secure permits required for renovating three shopping malls in that city.”  According to the article, the allegations were made by the former CFO of a Brookfield subsidiary in Brazil who was fired in 2010, and who the company has sued in Brazil for embezzling funds.  The article further suggests that the former CFO has contacted the SEC about the matter.

Brookfield (here) is “global alternative asset manager with over $150 billion in assets under management … with a 100-year history of owning and operating assets with a focus on property, renewable power, infrastructure and private equity.”  The company’s common shares trade on three stock exchanges, including the New York Stock Exchange.


As noted in this previous post, H-P has been under FCPA scrutiny since April 2010.  Last week, the Wall Street Journal reported here (“German Prosecutors Name H-P in Bribery Indictment of Employees”) that German prosecutors named H-P in a criminal bribery case against one current and two former employees.  According to the article, the “German prosecutors asked the court to attach H-P to the case, a motion that could lead to fines and other penalties if the court finds that the company benefited from the crime.”  In the article, a H-P spokeswoman said current and former employees had been indicted on charges of “alleged conduct that occurred nearly 10 years ago by a former H-P company” and that H-P had been “only named as a side participant in the proceedings,” not indicted, and was fully cooperating with authorities.

The company’s most recent quarterly filing stated as follows.

“The German Public Prosecutor’s Office (“German PPO”) has been conducting an investigation into allegations that current and former employees of HP engaged in bribery, embezzlement and tax evasion relating to a transaction between Hewlett-Packard ISE GmbH in Germany, a former subsidiary of HP, and the General Prosecutor’s Office of the Russian Federation. The approximately €35 million transaction, which was referred to as the Russia GPO deal, spanned the years 2001 to 2006 and was for the delivery and installation of an information technology network. The U.S. Department of Justice and the SEC have also been conducting an investigation into the Russia GPO deal and potential violations of the Foreign Corrupt Practices Act (“FCPA”). Under the FCPA, a person or an entity could be subject to fines, civil penalties of up to $500,000 per violation and equitable remedies, including disgorgement and other injunctive relief. In addition, criminal penalties could range from the greater of $2 million per violation or twice the gross pecuniary gain or loss from the violation. In addition to information about the Russia GPO deal, the U.S. enforcement authorities have requested (i) information related to certain other transactions, including transactions in Russia, Serbia and in the Commonwealth of Independent States (CIS) subregion dating back to 2000, and (ii) information related to two former HP executives seconded to Russia and to whether HP personnel in Russia, Germany, Austria, Serbia, the Netherlands or CIS were involved in kickbacks or other improper payments to channel partners or state-owned or private entities. HP is cooperating with these investigating agencies.”

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