Enforcement Action

 

Docket or Case Number:    16-cv-02488

Court:    District of Columbia

Initiation Date:    12/21/2016  Information

Prosecuting Agency:    US Securities and Exchange Commission

Name of Prosecuting Attorneys:   

  • David S. Johnson, Assistant Chief Litigation Counsel, SEC Headquarters
  • Ernesto Palacios, Senior Counsel, FCPA Unit
  • Thierry Olivier Desmet, Assistant Director, FCPA Unit, SEC Miami

Assisting Agencies:    US Department of Justice , Federal Bureau of Investigation , Switzerland Attorney General's Office , Brazilian Federal Prosecution Service , Brazilian Federal Police

Type of Action:    SEC Federal Court Proceeding

Origin of the Proceeding:    N/A

Whistleblower:    Unknown

Case Status:    Resolved


Summary

Braskem, S.A., a corporation headquartered and incorporated in Brazil, was the largest petrochemical company in the Americas, with significant interests in the petrochemical and thermoplastic products industries. Braskem's shares were registered with the SEC and traded on the New York Stock Exchange.

Odebrecht S.A., a Brazilian conglomerate that conducted business in a variety of industries, indirectly owned 38.1% of the total shares of Braskem and controlled the company through its ownership of 50.11% of the voting shares. At the time, Odebrecht had established a standalone division within the company called the Division of Structured Operations that was used extensively for the payment of bribes around the world.

Petroleo Brasileiro S.A. ("Petrobras") was Brazil's state-controlled oil company, and it owned 36.1% of the shares of Braskem.

Between about 2006 and 2014, Braskem paid bribes to Brazilian officials and political parties in order as part of a scheme to obtain business and influence the company's taxes in Brazil. Many of these bribes were paid through intermediaries, offshore bank accounts, and Odebrecht's Division of Structured Operations and were authorized and approved by certain senior Braskem executives. In all, Braskem made approximately $250 million in improper payments to the Division of Structured Operations, which were not properly accounted for in either company's books and records, and at least $75 million of that amount was used for bribes that directly benefited Braskem.

On December 21, 2016, the SEC filed a three count complaint in the Distict of Columbia against Braskem alleging violations of the anti-bribery, books & records, and internal controls provisions of the FCPA. On the same date, Braskem entered into a consent agreement with the SEC. Under the terms of that agreement, Braskem was permanently enjoined from future violations of the FCPA, agreed to pay $325 million in disgorgement, and hire an independent compliance monitor for a term of three years. Payment of the $325 million disgorgement will be split between the United States and Brazil, with the United States receiving $65 million share contigent upon payment of the remainder to Brazil (if the company fails to pay the Brazilian share, the full amount will be due to the United States).

In a related preceeding, Braskem entered into a plea agreement with the DOJ on December 21, 2016. Under the terms of the agreement, Braskem agreed to plead guilty to the conspiracy charge, pay a criminal penalty of $632,625,336.81 plus disgorgement of $325 million, strengthen its anti-corruption compliance policies and procedures, and hire an independent compliance monitor for a term of three years. The DOJ agreed to that the criminal penalty imposed represented a 15% downward departure from the minimum guidelines range based on the company's remediation and partial cooperation. Of the total criminal penalty imposed, Brakem will pay 15%, or $94,893,800.52, to the United States, 15% to Switzerland, and 70% to Brazil. The DOJ deemed that the disgorgement imposed in this proceeding would be satisfied by payment of $325 million in disgorgement in the parallel SEC proceeding.

In a related proceeding, Odebrecht entered into a plea agreement as well on December 21, 2016. Under the terms of the agreement, Odebrecht plead guilty to the conspiracy charge, agreed to pay a criminal fine of $2.6 billion, and agreed to appoint an independent compliance monitor for a term of three years. The $2.6 billion fine was to be divvied up by the United States, Brazil, and Switzerland. Assuming full payment of the the fine to Brazil and Switzerland, the share that Odebrecht is scheduled to pay to the United States is 10% of the total fine, or $260 million, plus any interest accrued before payment, which is due in June 2017. This fine represents a significant departure from the minimum guidelines range for the offense. The DOJ agreed that a 25% downward departure was appropriate given the company's cooperation and remediation, but even that amount, $4.5 billion, was more than the company could afford. Due to inability to pay the full fine, the DOJ agreed to allow the company to pay only $2.6 billion.

Country(ies) involved:    Brazil

Sanction to Bribe Ratio:    $65,000,000 / $250,000,000 = 26.00 %

Sanction to Revenue Ratio:    N/A

Sanction to Profit Ratio:    N/A

Number of Related Enforcement Actions (Including This Enforcement Action):    3

Country(ies) involved:    Angola, Argentina, Brazil, Colombia, Dominican Republic, Ecuador, Guatemala, Mexico, Mozambique, Panama, Peru, Venezuela

Total $ Bribery Payments:    $788,000,000

Total $ Revenue Generated from Bribery:    N/A

Total $ Profit Earned or Expenses Avoided from Bribery:    $3,336,000,000

Total $ Monetary Sanctions:    $419,894,601

Sanction to Bribe Ratio:    $419,894,601 / $788,000,000 = (53.29 %)

Sanction to Revenue Ratio:    N/A

Sanction to Profit Ratio:    $419,894,601 / $3,336,000,000 = (12.59 %)

Name:    Braskem S.A.

Place of Incorporation:    Brazil

HQ Country(ies):    Brazil

Entity Type:    Public Company

FCPA Claims:    Anti-Bribery, Primary, Issuer (15 U.S.C. § 78dd-1) ; Books & Records, Primary, Issuer (15 U.S.C. § 78m (b)(2)(A)) ; Internal Controls, Primary, Issuer (15 U.S.C. § 78m(b)(2)(B))

Related Claims:    N/A

Statutory Basis for FCPA Jurisdiction:    Issuer

Period of Bribery:   2006 - 2014

Total Bribery Payments:    $250,000,000

Total Revenue Generated from Bribery:    N/A

Total Profit Earned or Expenses Avoided from Bribery:    N/A

Country(ies) involved:    Brazil

Officials Potentially Influenced (Name; Title; Organization): 

  • Name N/A, Officials; Brazilian senate
  • Name N/A, Representatives; Brazilian government
  • Name N/A, Title N/A, Brazillian political party
  • Brazilian Official A; Chief downstream officer; Petroleo Brasileiro S.A. ("Petrobras")
  • Brazilian Official B; Congressman; Brazilian government

Defendant-Related Entities Involved in the Misconduct:    Parent Odebrecht Division of Structured Operations - Division/Branch Office

Third-Party Intermediary:   

  • Consultant A , Agent/Consultant/Broker
  • Consultant B , Agent/Consultant/Broker
  • Consultant C , Agent/Consultant/Broker

Type of Bribe:   Money

Cash, Wire or Check:    No Available

Purpose of Bribe:    Evade/reduce taxes or penalties, Influence policy/legislation, Obtain/retain business, Other beneficial outcomes

TRANSACTION OVERVIEW
Paymets in Brazil

Period of Bribery:   2006 – 2014

Total Bribery Payments:    $250,000,000

Total Revenue Generated from Bribery:    N/A

Total Profit Earned or Expenses Avoided from Bribery:    N/A

Country(ies) involved:    Brazil

Officials Potentially Influenced (Name; Title; Organization):  

  • Brazilian Official A; Chief downstream officer; Petroleo Brasileiro S.A. ("Petrobras");
  • Brazilian Official B; Congressman; Brazilian government;
  • Name N/A, Officials; Brazilian senate;
  • Name N/A, Representatives; Brazilian government;
  • Name N/A, Title N/A, Brazillian political party;

Defendant-Related Entities Involved in the Misconduct:    Parent Odebrecht Division of Structured Operations - Division/Branch Office

Third Party Intermediary:    Consultant A - Agent/Consultant/Broker
Consultant B - Agent/Consultant/Broker
Consultant C - Agent/Consultant/Broker

Type of Bribe:   Money

Cash, Wire or Check:    No Available

Purpose of Bribe:    Evade/reduce taxes or penalties, Influence policy/legislation, Obtain/retain business, Other beneficial outcomes

Misconduct by Subsidiary?  Yes


Parent(s):   Odebrecht S.A.

Subsidiary:  Braskem S.A.

  • Percentage of Ownership:    38.00 %
  • Direct or Indirect Ownership:    Indirect
  • Parent Had Knowledge of Sub’s Bribery?:    Yes
  • Subsidiary Expressly Alleged to Be Parent's Agent:    No
  • Parent Liable for Sub Misconduct?:    No

M&A Negotiated or Completed During Misconduct, Investigation, or Resolution?     No

Re: Braskem S.A.

  • Inadequate internal controls or auditing

Mitigating Factors Referenced by the Government (Company Defendants):

Defendant Self-Report Cooperation Voluntary Remedial Measures Misconduct Limited to Low Level Individuals Other factors
Braskem S.A.          

Aggravating Factors Referenced by the Government (Company Defendants):

Defendant Insufficient Cooperation Insufficient Remedial Measures
Braskem S.A.    

Total Monetary Sanctions for the Action:    $65,000,000

Case Status:    Resolved


Disposition:    Consent Agreement

Date of Disposition:    12/21/2016

Braskem S.A.

—  Total Monetary Sanctions for Defendant:    $325,000,000

—  Compliance Obligation:    Yes

—  Reporting Obligation:    Independent monitor

—  Admission of Guilt/Acceptance of Responsibility:    Yes

    Note: This sanction may have been imposed jointly and severally on multiple defendants, or it may resolve claims against more than one defendant in this proceeding or related proceedings. You should review the case summaries and resolution documents for all related cases to better understand how sanctions were levied against the defendants.

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