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Foreign Corrupt Practices Act & Anti-Corruption

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  • DOJ Reduces Odebrecht Penalty Based on Inability to Pay

    On April 11, the DOJ filed a memorandum in its case against Odebrecht S.A., requesting that the Court approve a lower sentence than originally proposed based on Odebrecht’s inability to pay. On December 21, Brazilian construction company Odebrecht and its petrochemical affiliate, Braskem S.A., reached a $4.5 billion combined global settlement with U.S., Brazilian, and Swiss authorities to resolve FCPA allegations, in which both companies agreed to plead guilty in the U.S. to conspiracy to violate the FCPA. As part of that agreement, the U.S. and Brazilian authorities agreed to conduct an independent analysis to confirm the accuracy of Odebrecht’s representation that it had an inability to pay a penalty in excess of $2.6 billion. The memorandum set forth the DOJ’s determination that Odebrecht lacks the ability to pay a criminal penalty in excess of $2.6 billion and included adjustments for the requested penalty to match that ability. In particular, the portion of the penalty paid to the United States would be lowered from approximately $117 million to approximately $93 million. The sentencing hearing is scheduled for April 17.

    Prior Scorecard coverage of the Odebrecht settlement can be found here.

    DOJ FCPA Enforcement Action Odebrecht Braskem SA

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  • ‘Panama Papers’ Law Firm Raided, Founders Arrested, Tied to Odebrecht Bribery Investigation

    On February 8, authorities in Panama raided the offices of Mossack Fonseca, the law firm at the center of the sprawling Panama Papers scandal, and arrested the firm’s founders, Juergen Mossack and Ramon Fonseca.  Reuters reports that Panama’s Attorney General announced on Twitter that the raid and arrests were tied to the investigation of Odebrecht S.A., the Brazilian construction company that in December reached a $3.5 billion combined global settlement with U.S., Brazilian, and Swiss authorities to resolve FCPA allegations.  Until now, the investigations spawned by the 2016 release of millions of documents stolen from the law firm were focused on money laundering and tax evasion.  The tie to the Odebrecht investigation brings anti-bribery investigations into the mix.

    Brazil Mossack Fonseca Odebrecht Panama Switzerland

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  • Odebrecht and Braskem Reach $3.5 Billion Global FCPA Settlement

    On December 21, Brazilian construction company Odebrecht S.A. and its petrochemical affiliate, Braskem S.A., reached a $3.5 billion combined global settlement with U.S., Brazilian, and Swiss authorities to resolve FCPA allegations, in which both companies agreed to plead guilty in the U.S. to conspiracy to violate the FCPA. The DOJ alleged that the companies operated an extremely broad and profitable global bribery scheme, including creating an internal bribery department to systematically pay hundreds of millions of dollars to corrupt government officials around the world from 2001 to 2016. The companies attempted to conceal the bribes by disguising the source and disbursement of bribe payments by passing funds through a series of shell companies and by using off-shore bank accounts.  While the scheme in large part involved bribes paid to Petrobras and Brazilian officials, it also included government officials in numerous other South and Central American countries, and in Africa.

    Odebrecht agreed to an overall criminal fine of $4.5 billion, but based on its representation of its ability to pay, may end up paying only $2.6 billion. Ten percent of the criminal fine was earmarked for the U.S., with the remainder to Brazil (80%) and Switzerland (10%).  The DOJ faulted Odebrecht for failing to voluntarily disclose the conduct, but granted full cooperation credit based on Odebrecht’s actions once it started to deal with the government.  As part of its own related resolution, Braskem agreed to pay over $632 million in criminal fines, with the vast majority ($443 million) going to Brazil, and 15%, or $94.8 million, to each of the DOJ and Switzerland.  Braskem also agreed to disgorge $325 million, with $65 million going to the SEC and the rest to Brazil.  The DOJ noted Braskem’s failure to voluntarily disclose the conduct, and granted only partial cooperation credit due to Braskem’s failure to turn over any evidence from its internal investigation until seven months after it first talked to the DOJ.  Both Odebrecht and Braskem agreed to engage independent compliance monitors for at least three years

    The resolution is, by far, the largest FCPA resolution ever, with the bulk of the money going to Brazil in apparent recognition of the heavy lifting done by Brazilian prosecutors.

    Prior Scorecard coverage of the ongoing Petrobras investigations can be found here.

    DOJ Petrobras FCPA SEC Odebrecht Braskem SA

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