In November 2024, the SEC announced a Foreign Corrupt Practices Act enforcement action against Cyril Sebastien Dominique Cabanes (“Cabanes”) – a French citizen and resident of Singapore who was previously a member of the board of directors of Azure Power Global Limited (a Mauritius company with its principal place of business in India).
During the time period relevant to the enforcement action, Azure was a publicly traded company with shares traded on the New York Stock Exchange.
The enforcement action concerns alleged bribes paid to Indian officials to secure multi-billion dollar energy projects for Azure and another company Adani Green Energy Limited.
In recent months, I’ve had several exchanges with various individuals (including journalists) about FCPA enforcement and the false narrative that FCPA enforcement has stopped.
When shown clear evidence that the narrative is indeed false, two common responses have been:
(1) but FCPA enforcement activity during the Trump administration involves matters initiated / begun (use whatever term you want) during a prior administration; and
(2) but the Trump administration has closed / abandoned (use whatever term you want) FCPA inquiries or investigations without bringing an enforcement action.
These common responses ignore the fact that both dynamics have been part of FCPA enforcement for nearly 50 years.
As highlighted in this prior post, in 2012 BizJet International Sales and Support Inc. (a Tulsa, OK based provider of aircraft maintenance, repair and overhaul services) resolved an $11.8 million FCPA enforcement action “for bribing government officials in Latin America to secure contracts to perform aircraft services for government agencies.”
The enforcement action alleged conduct by several executives generically referred to at the time as Executive B, Executive B, Executive C, and Sales Manager A.
In 2013, the DOJ announced the unsealing of related criminal charges (filed in 2012) of the four executives and revealed the names of the executives including “Sales Manager A” Jald Jensen.
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.”