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Harry Cassin
Publisher and Editor

Andy Spalding
Senior Editor

Jessica Tillipman
Senior Editor

Bill Steinman
Senior Editor

Richard L. Cassin
Editor at Large

Elizabeth K. Spahn
Editor Emeritus

Cody Worthington
Contributing Editor

Julie DiMauro
Contributing Editor

Thomas Fox
Contributing Editor

Marc Alain Bohn
Contributing Editor

Bill Waite
Contributing Editor

Russell A. Stamets
Contributing Editor

Richard Bistrong
Contributing Editor

Eric Carlson
Contributing Editor

Och-Ziff and Embraer join our Top Ten Disgorgement List

Two recent enforcement actions included disgorgements to the SEC that are among the ten biggest FCPA disgorgments of all time.

As part of its $412 million resolution with the DOJ and SEC in late September, hedge fund manger Och-Ziff Capital Management Group (and its affiliate OZ Africa Management GP LLC) agreed to disgorge about $199 million to the SEC.

Och-Ziff’s disgorgement was the second biggest in an FCPA case.

And this week, Embraer SA agreed to disgorge up to about $98 million as part of a $205 million resolution with the DOJ and SEC.

In a litigation release, the said SEC said Embraer could receive up to a $20 million credit “depending on the amount of disgorgement it will pay to Brazilian authorities in a parallel civil proceeding in Brazil.”

The SEC didn’t publish a final amount that reflected the credit for disgorgement in the Brazil enforcement action.

But in a separate statement, Embraer said it reached a settlement with authorities in Brazil for about $20 million. Of that, about $18.5 million is disgorgement, Embraer said.

Assuming Embraer receives a credit of $18.5 million against the SEC’s order to disgorge $98 million, then the company will disgorged about $79.5 million to the SEC.

That would be the tenth biggest disgorgement in an FCPA case.

So far in 2016, three companies have landed on the Top Ten Disgorgement List. Joining Och-Ziff and Embraer is VimpelCom. In February, it disgorged $167.5 million to the SEC as part of its $397.6 million FCPA resolution wtih the DOJ and SEC.

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Disgorgement, according to contributing editor Marc Alain Bohn, is a remedy authorized by the Securities Exchange Act of 1934 that’s “used to deprive wrong-doers of their ill-gotten gains and deter violations of federal securities law.”

Disgorgement first appeared in an FCPA enforcement action in 2004 when ABB Ltd disgorged $5.9 million to resolve books and records and internal controls offenses.

Since then the SEC has used disgorgement in most of its FCPA-related enforcement actions.

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Here are the current top ten FCPA-related corporate disgorgements. All amounts also include pre-judgment interest:

1.  Siemens $350 million in 2008

2. Och-Ziff $199 million in 2016

3.  KBR $177 million in 2009

4.  VimpelCom $167.5 million in 2016

5.  Alcoa $161 million in 2014

6.  Total S.A. $153 million in 2013

7.  Snamprogetti $125 million in 2010

8.  Technip $98 million in 2010

9.  Daimler $91.4 million in 2010

10. Embraer $79.5 million in 2016

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For comparison, here’s our current list of the top ten FCPA enforcement actions.

Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.

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