Telia Company AB’s $965.6 million settlement Thursday included disgorgement to the SEC of $457 million, the biggest disgorgement ever ordered in an FCPA enforcement action.
Telia won’t actually pay the SEC $457 million in disgorgement, however.
About $40 million of the disgorgement will be satisfied by a forfeiture payment to the DOJ.
And up to $208.5 million will be offset for any confiscation or forfeiture payment Telia makes to Swedish or Dutch prosecutors.
So from the total disgorgement of $457 million ordered by the SEC, subtract $40 million for the DOJ forfeiture, and $208.5 million for the Dutch and Swedish payments.
That leaves disgorgement actually payable to the SEC of $208.5 million, or half of the ordered $457 million.
But $457 million is the total disgorgement ordered by the SEC in its administrative action.
So we’ll use that number for our Top Ten Disgorgement list.
Counting it that way makes sense. It recognizes the substance of the feds’ new model for some mega settlements of FCPA offenses, whereby the DOJ and SEC order the total global penalties but permit some of that amount to be satisfied through payments to overseas enforcement agencies.
This way of looking at Telia’s disgorgement is consistent with our earlier treatment of VimpelCom, Odebrecht / Braskem, and Telia’s overall resolution for purposes of our list of the Top Ten FCPA enforcement actions.
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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.
The DOJ’s Pilot Program introduced in April last year requires companies to disgorge profits to be eligible for a declination.
None of the Pilot Program disgorgements have landed on the top ten disgorgement list.
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Here are the current top ten FCPA-related corporate disgorgements. Amounts also include pre-judgment interest:
1. Telia $457 million in 2017
2. VimpelCom $375 million in 2016
3. Siemens $350 million in 2008
4. Teva $236 million in 2016
5. Och-Ziff $199 million in 2016
6. KBR $177 million in 2009
7. Alcoa $161 million in 2014
8. Total S.A. $153 million in 2013
9. JPMorgan Chase $130.5 million in 2016
10. Snamprogetti $125 million in 2010
Knocked off the Top Ten Disgorgement list is Technip, which disgorged $98 million in 2010.
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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.