As part of Goldman Sachs’ record-breaking $3.3 billion FCPA resolution, the SEC ordered the company to disgorge $606.3 million. That’s the second biggest disgorgement ever ordered in an FCPA enforcement action.
The SEC imposed the disgorgement through an administrative order, and said Goldman Sachs will receive a dollar-for-dollar disgorgement credit of $606.3 million based on the U.S. dollar value of similar payments made to the Government of Malaysia and 1MDB as part of the company’s July settlement with Malaysia authorities.
The FCPA Blog bases its disgorgement top ten list on the total monetary value of disgorgement orders, without regard to where the SEC says disgorgement can or should be paid. A more detailed explanation of how the FCPA Blog calculates settlement values for fines, penalties, and disgorgement is here.
What’s the legal basis for disgorgement?
The SEC is authorized to use it as an equitable remedy under the Securities Exchange Act of 1934, which says at 15 U.S.C. § 78u-2,
In any proceeding in which the Commission or the appropriate regulatory agency may impose a penalty under this section, the Commission or the appropriate regulatory agency may enter an order requiring accounting and disgorgement, including reasonable interest. The Commission is authorized to adopt rules, regulations, and orders concerning payments to investors, rates of interest, periods of accrual, and such other matters as it deems appropriate to implement this subsection.
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.
But in June this year, in Liu et al v. Securities and Exchange Commission, the U.S. Supreme Court limited the SEC’s ability to use disgorgement without considering and deducting legitimate business expenses. Previously, the SEC often ordered companies to disgorge the total “sales” amount stemming from corrupt activity.
And in 2017, the Supreme Court ruled in Kokesh v. SEC that disgorgement is subject to the federal five-year statute of limitations because the SEC uses the remedy “as a penalty.”
Here are the current top ten FCPA-related corporate disgorgements (including pre-judgment interest):
1. Petrobras $933.5 million in 2018
2. Goldman Sachs Group, Inc. $606.3 million in 2020
3. Ericsson $540 million in 2019
4. Telia $457 million in 2017
5. VimpelCom $375 million in 2016
6. Siemens $350 million in 2008
7. Teva $236 million in 2016
8. Och-Ziff $199 million in 2016
9. KBR $177 million in 2009
10. Alcoa $161 million in 2014
Total S.A. falls off the top ten disgorgement list with its $153 million SEC disgorgement order in 2013.
For comparison, here’s our current list of the top ten FCPA enforcement actions.