This post provides a summary of Foreign Corrupt Practices Act activity and related developments from the second quarter of 2013.  See here for a similar post from Q1.

DOJ Enforcement (Corporate)

The DOJ resolved 3 corporate FCPA enforcement action in the second quarter.  DOJ recovery in these enforcement action was approximately $258 million.   All 3 enforcement actions were resolved via a deferred prosecution agreement (2) or a non-prosecution agreement (1). At present, none of the enforcement actions have resulted in any individual charges against company employees.

Total  (May 29th)

See here for the prior post.

Charges:  Conspiracy to violate the FCPA’s anti-bribery provisions and violating the FCPA’s books and records and internal controls provisions.

Resolution Vehicle: Criminal information resolved through a deferred prosecution agreement (3 year term).

Guidelines Range:  $235.2 to $470.4 million.

Penalty:  $245.2 million.

Disclosure:  The company disclosed as follows.  “In 2003, the SEC followed by the DOJ issued a formal order directing an investigation in connection with the pursuit of business in Iran by certain oil companies, including among others, Total.”

Monitor: Yes.

Individuals Charged: No.

Ralph Lauren (April 22nd)

See here for the prior post.

Charges:  None.

Resolution Vehicle: Non-prosecution agreement (2 year term).

Guidelines Range:  Not set forth in the NPA.

Penalty:  $882,000

Disclosure:  Voluntary disclosure.

Monitor: No.

Individuals Charged: No.

Parker Drilling (April 16th)

See here for the prior post.

Charges: FCPA’s anti-bribery violations.

Resolution Vehicle:  Criminal information resolved via a deferred prosecution agreement (3 year term).

Guidelines Range: $14.7 million to $29.4 million.

Penalty: $11.8 million.

Disclosure: Industry sweep related to Panalpina enforcement action.

Monitor: No.

Individuals Charged: No.

DOJ Enforcement (Individuals)

The DOJ announced FCPA or related charges against 11 individuals in the second quarter.  Certain of these charges were filed in 2012 or 2011, but unsealed during the second quarter.

Tomas Clark, Alejandro Hurtado, and Ernesto Lujana (see here and here).  All individuals are associated with broker-dealer, Direct Access Partners.

Frederic Pierucci, David Rothschild and William Pomponi (see here and here).  All individuals are associated with Alstom.

Frederic Cilins (see here).  Cilins is associated with BSG Resources.

Bernd Kowalewsi, Jald Jensen, Peter DuBois, and Neah Uhl (see here).  All individuals are associated with BizJet.

SEC Enforcement

The SEC resolved 4 corporate FCPA enforcement actions in the second quarter.  Total recovery in these enforcement actions was approximately $162  million.  At present, none of the enforcement actions have resulted in any individual charges against company employees.

Total (May 29th)

See here for the prior post.

Charges:   None.  Administrative cease and desist order finding violations of the FCPA’s anti-bribery provisions and books and records and internal control provisions.

Settlement:  Approximately $153 million in disgorgement.

Disclosure:   The company disclosed as follows.  “In 2003, the SEC followed by the DOJ issued a formal order directing an investigation in connection with the pursuit of business in Iran by certain oil companies, including among others, Total.”

Individuals Charged:  No.

Related DOJ Enforcement Action:  Yes.

Ralph Lauren (April 22nd)

See here for the prior post.

Charges:  None.  Non-prosecution agreement.

Settlement:  Approximately $735,000 ($593,000 in disgorgement and $141,845 in prejudgment interest).

Disclosure:  Voluntary disclosure.

Individuals Charged:  No.

Related DOJ Enforcement Action:  Yes.

Parker Drilling (April 16th)

See here for the prior post.

Charges:  Settled civil complaint charging violations of the FCPA’s anti-bribery provisions, and books and records and internal controls provisions.

Settlement:  Approximately $4 million ($3.05 million in disgorgement and approximately $1.04 million in prejudgment interest)

Disclosure: Industry sweep connected to Panalpina enforcement action

Individuals Charged:  No

Related DOJ Enforcement Action:  Yes

Koninklijke Philips Electronics (April 5th)

See here for the prior post.

Charges:  None. Administrative cease and desist order finding violations of the FCPA’s books and records and internal control provisions.

Settlement:  Approximately $4.5 million.

Disclosure: Polish law enforcement investigation prompted the company to conduct an internal investigation which it then disclosed to DOJ and SEC.

Individuals Charged:  No.

Related DOJ Enforcement Action:  No.

Other Developments

Kiobel Decision

In April, the Supreme Court released its long-awaited opinion in Kiobel v. Royal Dutch Shell Petroleum.  The precise issue before the court was “whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute (“ATS”), for violations of the law of nations occurring within the territory of a sovereign other than the United States.”  The opinion, authored by Chief Justice Roberts, held that “the presumption against exterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.”

As noted in this prior post, although Kiobel did not involve the FCPA, the logic and rationale of many justices in Kiobel has direct bearing on certain aspects of FCPA enforcement, and indeed can be viewed as Supreme Court disapproval of certain aspects of FCPA enforcement.

Over-Criminalization and FCPA Reform  Return to Capitol Hill

Over-criminalization was a topic discussed at the June 2011 House FCPA hearing.  As highlighted in this post, the topic (as well as FCPA reform) returned to Capitol Hill in June during a hearing of the House Committee on the Judiciary, Over-Criminalization Task Force.

Tough Talk From The DOJ

Acting Assistant Attorney General Mythili Raman gave speeches in May and June that focused, in whole or in part, on the DOJ’s FCPA enforcement program.  As noted in this post, Raman declared “we are not going away … our efforts to fight foreign bribery are more robust than ever.  As noted in this post, Raman declared “our stellar FCPA Unit continues to go gangbusters bringing case after case.”  Both prior posts analyzed the rhetoric used in Raman’s speeches.