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Foreign Corrupt Practices Act & Anti-Corruption

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  • ING settles corrupt practices case in the Netherlands for approximately $900 million and receives SEC declination

    On September 4, the Netherlands-based financial services company ING Groep, N.V. announced in its Form 6-K filing that it had agreed to pay a penalty of $782 million and disgorgement of $115 million to resolve corruption charges by the Dutch Public Prosecution Service (“DPPS”). The DPPS charges related to ING’s prevention of money laundering, client on-boarding, and corrupt practices. ING acknowledged its “serious shortcomings in the execution of customer due diligence policies to prevent financial economic crime” and “regrets that these shortcomings enabled customers to misuse accounts.”

    On September 5, following the settlement with the DPPS, ING announced in a new Form 6-K filing that it received a formal notification from the SEC that it had concluded its own FCPA investigation and did not intend to recommend an enforcement action. ING first disclosed the SEC investigation in March 2017.  The response from the SEC is consistent with the new policy against so-called piling on issued by DOJ in May 2018. The policy is intended to encourage coordination among enforcement authorities to avoid duplicative penalties. See previous FCPA Scorecard coverage here.

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  • Ensco receives double declination in FCPA investigation

    On September 4, Ensco PLC, a London-based offshore drilling company, announced in its Form 8-K filing that the DOJ and the SEC will not take action against the company, ending their investigations into alleged corruption related to a drilling services agreement between Pride International LLC (“Pride”), an acquired subsidiary, and Petrobras, the Brazilian state-owned oil company. According to the filing, the SEC letter stated that the agency “did not intend to recommend any enforcement action” related to the alleged irregularities. The DOJ letter acknowledged Ensco’s full cooperation in the investigation.

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  • Sanofi settles FCPA action with SEC for $25.2 million

    On September 4, the SEC announced that French pharmaceutical company Sanofi S.A. had agreed to pay $25.2 million to settle FCPA charges related to payments made by company employees to healthcare professionals in Kazakhstan and the Middle East. According to the SEC’s order, from 2011 to 2015, employees of Sanofi’s subsidiaries acted to provide things of value to foreign officials and healthcare professions “in order to improperly influence them and increase sales of Sanofi products.” Employees generated the funds for the illicit payments by submitting fake reimbursement claims for, among other things, travel and entertainment expenses, product samples, and clinical trial and consulting fees.

    The SEC found that Sanofi violated the internal accounting controls and recordkeeping provisions of the FCPA. Sanofi agreed to pay a civil penalty of $5 million, $17.5 million in disgorgement, and $2.7 million in prejudgment interest, without admitting or denying the SEC’s findings.

    According to the press release, the chief of the SEC’s FCPA Unit, Charles Cain, called out bribery in the pharmaceutical industry as a continued significant problem.

    Sanofi announced in March 2018 that the DOJ had closed its FCPA investigation without bringing an enforcement action. See previous FCPA Scorecard coverage here and here.

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  • SEC issues administrative order against investment manager Legg Mason

    On August 27, the SEC issued an administrative order settling allegations against Maryland-based investment manager Legg Mason which remained outstanding after the company’s June 4 NPA with the DOJ. The June 4 NPA resolved claims of FCPA violations in Libya and included a criminal penalty of $32.6 million and disgorgement of $31.6 million [see prior FCPA Scorecard coverage here].  The SEC order stated that Legg Mason’s actions were in violation of the internal accounting controls provision of the Securities Exchange Act of 1934.  The SEC settlement did not include a seprate penalty beyond the disgorgement already agreed to in June, and pre-judgment interest. 

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  • Microsoft confirms U.S. investigations into Hungarian sales operations

    On August 23, the Wall Street Journal reported that Microsoft is under investigation by the DOJ and the SEC regarding whether bribes and kickbacks were paid to Hungarian officials connected to sales of Microsoft products in Hungary.  Microsoft stated in response to the reporting that it had terminated four employees as well as certain business partnerships in response to its own internal probe into potential wrongdoing in the 2013 to 2014 timeframe. In SEC filings over the last couple of years, Microsoft previously disclosed FCPA-related investigations and that it has been cooperating with related U.S. investigations, which have to date yielded no enforcement actions.

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  • Global bank settles two FCPA actions for $10.5 million

    On August 16, the SEC announced that a global bank had settled two enforcement actions involving alleged violations of the FCPA’s books and records and internal control provisions.  The FCPA’s anti-bribery provisions were not implicated in either action.

    The first action alleged that three traders employed by a U.S. subsidiary of the bank had mismarked positions in certain proprietary accounts, causing $81 million in losses that were not reflected in the company’s books and records. Some of these losses were from allegedly “widespread unauthorized trading.” The second action alleged that the bank had “failed to devise and maintain adequate internal accounting controls,” causing $475 million in losses, when the company did not identify that a Mexican subsidiary had loaned nearly $3.3 billion to a counterparty on the basis of fraudulent documentation provided by the counterparty. Without admitting or denying the SEC’s findings, the bank “agreed to pay $10.5 million in penalties”: $5.75 million for the first action, and $4.75 million for the second.

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  • Court dismisses SEC allegations against executives of hedge fund management firm as time-barred

    Judge Nicholas Garaufis of the Eastern District of New York issued a 32-page memorandum opinion this week dismissing the SEC’s civil suit against two former executives of an American hedge fund management firm (earlier coverage can be found here and here).

    The SEC’s complaint alleged that the executives violated the FCPA between May 2007 and April 2011 by causing the firm “to pay tens of millions of dollars in bribes to government officials on the continent of Africa.” Specifically, the defendants allegedly induced Libyan authorities to invest in firm managed funds, and directed illicit efforts to secure mining deals by bribing government officials in Libya, Chad, Niger, Guinea, and the Democratic Republic of the Congo. The case against the two executives was the latest in a line of civil and criminal proceedings involving the hedge fund management firm and its employees and executives, and the firm paid $412 million in criminal and civil penalties to settle its FCPA enforcement actions.

    Judge Garaufis, in dismissing the complaint in its entirety with prejudice, found that the claims were barred by the FCPA’s five-year statute of limitations, and he rejected the SEC’s tolling arguments. A cornerstone of this dismissal is the Supreme Court’s ruling last year in Kokesh v. SEC, which held that SEC disgorgement actions are subject to a five-year statute of limitations.

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  • SEC settles with Beam Suntory for $8.2 million regarding India payments

    On July 2, the SEC settled FCPA allegations with alcoholic beverage company Beam Suntory, Inc. (“Beam”) in an administrative proceeding stemming from alleged FCPA violations from 2006 through 2012. Beam neither admitted nor denied any wrongdoing. The SEC alleged that the company’s subsidiary in India made illegal payments to Indian government officials through third-party sales promoters and distributers. The third parties then presented fabricated or inflated invoices to the subsidiary. These invoices and accounting entries were ultimately incorporated into the parent company’s books and records. The SEC also alleged that Beam failed to maintain adequate internal controls.

    This is the third case the SEC has pursued related to conduct in India by alcoholic beverage companies, following Diageo in 2011 and AB InBev in 2016.

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  • Legg Mason preparing for FCPA settlement

    On May 30, Legg Mason, a Baltimore-based investment management firm, announced in a 10-K SEC filing that it will soon complete negotiations with the DOJ and SEC to resolve FCPA allegations stemming from how Permal, a London-based fund purchased by Legg Mason in 2005, managed assets of Libyan governmental entities in 2005-2007. Legg Mason reserved $67 million for the settlement, which reflects, in part, the net revenues of approximately $31 million earned by Permal for managing the assets.

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  • Clear Channel Outdoor discloses potential FCPA violations

    On April 30, Clear Channel Outdoor, one of the world’s largest outdoor advertising companies, disclosed that it had self-reported potential FCPA violations to the SEC and DOJ. The San Antonio-based company had previously disclosed that Chinese police were investigating “several employees” of its subsidiary, Clear Media Limited, for the misappropriation of funds in China. A related internal investigation purportedly found that three unauthorized bank accounts were opened in the name of the subsidiary and “certain transactions were recorded therein.” In the most recent disclosure, the company newly reported that: (i) “discrepancies” related to the misappropriation resulted in more than $10 million in “accounting errors”; (ii) it determined that there was a “material weakness” in the subsidiary’s internal controls over financial reporting, namely “falsification of bank statements and other supporting documentation used to complete bank reconciliations,” “collusion,” and “circumvention of controls”; and (iii) these issues “could implicate the books and records, internal controls and anti-bribery provisions” of the FCPA, making “possible . . . monetary penalties and other sanctions.” The company said it would cooperate with any investigation by the SEC or DOJ.

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