On April 20, the DOJ announced that Dmitrij Harder, the former owner and president of two Pennsylvania consulting companies pleaded guilty to violations of the FCPA. Mr. Harder pleaded guilty to two counts of violating the FCPA by bribing an official at the European Bank for Reconstruction and Development (EBRD) before U.S. District Judge Paul S. Diamond of the Eastern District of Pennsylvania. The EBRD was a development bank based in London that was owned by approximately 65 sovereign nations and provided financing for development projects in Eastern Europe. On March 2, Judge Diamond ruled that the FCPA covered EBRD as a public international organization, rejecting one of Harder’s key defenses at his upcoming trial. Read more…
Recently, a gold mining company based in Colorado disclosed in its quarterly filings an investigation of certain business activities of the company and its affiliates outside the U.S. for possible violations of the FCPA. The company stated that it had hired outside counsel to assist in the investigation, and it was working with the SEC and DOJ with respect to the investigation. The company also stated that, in March 2016, it entered into one-year tolling agreements with the SEC and DOJ. The company’s recent disclosure of the investigation did not specify the nature of the business activities being investigated or where the potential misconduct took place, but the company has mining operations in Ghana, Australia, Indonesia, Peru, and Suriname.
On April 5, the DOJ announced a one-year pilot program designed to encourage corporations to voluntarily self-report FCPA-related misconduct and cooperate with the DOJ. The program emerges from the DOJ’s heightened focus on individual accountability as highlighted in the Yates Memo. For corporations that (i) voluntarily disclose the misconduct and all relevant facts related to the misconduct “within a reasonably prompt time after becoming aware of the offense”; (ii) fully cooperate with the DOJ investigation; and (iii) take appropriate actions towards remediation, the DOJ may offer up to a 50% fine reduction from the bottom of the applicable Sentencing Guidelines fine range calculation, and will generally not require the appointment of a monitor if the corporation has already implemented an effective compliance plan. Furthermore, the DOJ notes that in certain circumstances, it will consider declining prosecution altogether.
While the pilot program ends in one year, any corporation that voluntarily self-reports or cooperates in FCPA matters during the pilot period will be eligible for the benefits, even if the pilot period expires during the investigation. More details and specific requirements can be found in the DOJ’s Foreign Corrupt Practices Act Enforcement Plan and Guidance.
On April 7, the SEC settled FCPA allegations with a Nevada-based operator of numerous hotel, resort, and casino properties in the United States and Asia. In a cease and desist order, the SEC found that the operating company violated the FCPA’s internal controls and books and records provisions related to activities in China and Macau. The SEC order alleged that the operating company made more than $62 million in payments to a consultant in Asia, without supporting documentation or appropriate authorizations, and at times continued to make payments to the consultant without being able to account for prior transfers.
The operating company consented to the SEC’s order without admitting or denying the charges and agreed to pay a $9 million dollar penalty. In addition to the penalty, the operating company agreed to obtain an independent monitor for two years to “review its FCPA-related internal controls, recordkeeping, and financial reporting policies and procedures and its ethics and compliance functions.”
Indiana Medical Device Manufacturer’s Deferred Prosecution Agreement with DOJ Extended for a Second Time
On March 25, an Indiana-based medical device manufacturer announced that the deferred prosecution agreement it entered into with the DOJ to settle FCPA charges in 2012 would be extended a second time. The company reported that the DOJ and SEC’s investigation into alleged misconduct in Brazil and Mexico, and into the company’s compliance program, was still ongoing.
The company settled FCPA charges with the DOJ and SEC in 2012 related to its conduct in Argentina, Brazil and China. As previously reported, the company disclosed in March 2015 that the deferred prosecution agreement it had agreed to as part of the settlement would be extended for one year because the company had discovered additional potential FCPA violations in Brazil and Mexico.