We haven’t had to update our list of corporate FCPA cases with the biggest disgorgements since March 2011. But now we do, thanks to Pfizer.
In its settlement yesterday, it paid $15 million in criminal penalties to the DOJ, and $45.2 million in disgorgement and pre-judgment interest to the SEC.
That lands Pfizer sixth on the top ten disgorgement list. Dropping off the list is GE and its 2010 settlement, when it disgorged $22.5 million.
(We’re lumping together Pfizer and its subsidiary, Wyeth; the SEC and Shearman & Sterling also count related companies as one enforcement action. And we’re including pre-judgment interest on the disgorgement, as we’ve always done).
As a reminder, disgorgement — giving up profit derived from bribe-tainted sales — was never mentioned when the FCPA was first debated and adopted in 1977, nor when Congress amended the law in 1988 or 1998. In fact, as of 1977, the SEC had barely used disgorgement in any type of securities enforcement actions, and 27 years passed before disgorgement popped up in an FCPA case.
That was in 2004 when ABB Ltd disgorged $5.9 million to settle civil antibribery, books-and-records, and internal-controls offenses. Since then the SEC has used disgorgement in about three quarters of its FCPA-related enforcement actions.
Pfizer, by the way, doesn’t make our overall top ten list of FCPA settlements. Those include both criminal and civil penalties. Pfizer’s overall settlement was about $60 million; the current tenth-ranked settlement is Panalpina’s at $81.8 million.
Here are the SEC’s current top ten FCPA-related corporate disgorgements (including prejudgment interest):
1. Siemens $350 million in 2008
2. KBR $177 million in 2009
3. Snamprogetti $125 million in 2010
4. Technip $98 million in 2010
5. Daimler $91.4 million in 2010
6. Pfizer $45.2 million in 2012
7. Alcatel-Lucent $45 million in 2010
8. Chevron $25 million in 2007
9. Pride $23.5 million in 2010
10. Baker Hughes $23 million in 2007
For comparison, here’s our current list of the top ten FCPA enforcement actions of all time.