Fresenius Medical Care AG & Co. KGaA ("FMC"), incorporated and headquartered in Germany, was a provider of products and services for individuals with chronic kidney failure. FMC operated in more than 150 countries, and its shares were registered with the SEC and traded on the New York Stock Exchange. FMC's operations were conducted primarily through a series of subsidiaries in their respective countries. Among the subsidiaries implicated in the alleged misconduct were subsidiaries in Morocco, Portugal, Angola, Turkey, and Spain. In addition, FMC’s West Africa business was managed and operated from Fresenius Medical Care Deutschland GmbH, a German subsidiary, and FMC operated in Saudi Arabia through Saudi Advanced Renal Services Ltd., a wholly consolidated distributor.
According to the documents in this case, between 2007 and 2016, FMC engaged in several schemes to pay bribes to publicly-employed health and/or government officials to obtain business in Angola, Saudi Arabia, Morocco, Spain, Turkey, and several countries in West Africa. Additionally, FMC improperly recorded these payments in the company's books and records. The company made profits of approximately $140 million based on the misconduct.
On March 29, 2019, the DOJ entered into a Non-Prosecution Agreement with FMC. Under the terms of the agreement, FMC admitted its conduct and agreed to pay a criminal penalty pf $84,715,273 as well as disgorgement and interest of $147 million. The DOJ credited the $147 million that FMC paid to the SEC in its parallel enforcement action. In addition, FMC agreed to retain an independent compliance monitor for a term of two years and to self report on its anti-corruption compliance for an additional one year.
In a related administrative proceeding intiated on March 29, 2019, the SEC issued a cease and desist order against FMC. Under the terms of the proceeding, the SEC ordered FMC to cease and desist violations of the anti-bribery, books and records and internal controls provisions of the FCPA, ordered the company to pay $135 million in disgorgement plus $12 million in prejudgment interest, and to hire an independent compliance monitor for a term of two years and to self report on the status of its anti-corruption compliance for an additional one year.
