Recently, I had some back and forth exchanges on LinkedIn with John Reed Stark (a former SEC enforcement attorney) on SEC FCPA enforcement.
An overview of the points I raised are set forth below.
Often when there is a discussion about enforcement of a specific law and comparing enforcement actions to prior years, the question perhaps left unanswered “how much enforcement should there actually be?”
Thus, when it comes to SEC enforcement of the FCPA (“foreign bribery” actions – not necessarily “non-FCPA, FCPA enforcement actions” – a term long used on this site to describe enforcement actions by the SEC involving the FCPAs books and records and internal controls provisions, but not involving foreign bribery, of which there have been several this year including earlier this month), it must be noted that the SEC has rather limited jurisdiction (generally speaking only against issuers).
In August, Asante Berko (a former Executive Director of Goldman Sachs International) was convicted by a jury of FCPA and related offenses in connection with a Ghana bribery scheme after a trial in the E.D. of New York.
Thereafter, Berko filed a motion for acquittal and a new trial which stated in pertinent part: In this case, the evidence is insufficient to show Mr. Berko agreed with the alleged coconspirators to pay bribes to government officials. The evidence involving Ghanaian officials consists of either (1) emails between Aksa personnel, Goldman Sachs personnel, or Tricorp personnel negotiating the deal with the officials, or (2) routine emails regarding the deal’s progress or logistics.”
This post highlights nine Foreign Corrupt Practices Act enforcement actions concerning conduct (in whole or in part) in Greece.
The enforcement action concerned conduct in Greece, Vietnam and South Korea.
As to Greece, the allegations were: “Novartis Greece, through its employees and agents, knowingly and willfully conspired and agreed to corruptly provide improper benefits and things of value to employees of state-owned and state-controlled hospitals and clinics in Greece (“Greek State HCPs”) and other HCPs in Greece with the intent to obtain an improper advantage and to increase sales of a certain Novartis-branded prescription drug in Greece. Specifically, Novartis Greece sponsored Greek State HCPs to attend international congresses as a means to bribe and corruptly influence the HCPs to increase prescriptions of Lucentis a drug to treat adults with age-related macular degeneration].
This post highlights FCPA enforcement actions concerning conduct (in whole or in part) in Georgia and Ukraine.
Georgia
The enforcement action concerned conduct in Georgia and the allegations were: “From approximately November 2006 to December 2009, Linde, through Spectra Gases, Inc., a company that Linde acquired in October 2006, made corrupt payments to high-level officials at the National High Technology Center (NHTC) of the Republic of Georgia, a 100% state-owned and-controlled entity, in connection with its purchase of certain income-producing assets from the NHTC.”
This post highlights 8 FCPA enforcement actions concerning conduct (in whole or in part) in Poland.
The enforcement action concerned conduct in Russia, Poland and Mexico.
As to Poland, the allegations were: HP Poland “(i) caused the falsification of HP’s books and records; and (ii) circumvented HP’s existing internal controls, in connection with a scheme to make corrupt payments to one or more foreign officials in Poland, including the Polish Official [the Director of Information and Communications Technology within the Polish National Police Agency (“KGP”) which was part of the Polish Ministry of the Interior and Administration].” Between 2006 and 2010 HP Poland “provided Polish Official cash worth the equivalent of approximately $600,000, gifts valued in excess of $30,000, and several thousand dollars in improper travel and entertainment benefits.” “During this same time span, the Polish government awarded to HP Poland at least seven contracts for KGP-related information technology products and services, with a total value of approximately $60 million.”