Archer Daniels Midland Company ("ADM") was a Delaware company headquartered in Decatur, Illinois that issued and maintained a class of publicly traded securities, which traded on the New York Stock Exchange. ADM manufactured and sold protein meal, vegetable oil, corn sweeteners, flour, biodiesel, ethanol, and other value-added food and feed ingredients, and processed oilseeds, corn, wheat, cocoa, and other agricultural commodities.
Alfred C. Toepfer International (Ukraine) Ltd. ("ACTI Ukraine") was an indirect 80%-owned subsidiary of ADM headquartered in Ukraine. ACTI Ukraine traded and sold commodities in and outside of Ukraine.
At certain times between about 2002 and about 2008, the Ukrainian government did not have the money to pay value-added tax ("VAT") refunds that it owed to companies that sold Ukrainian goods outside of Ukraine. In order to obtain VAT refunds from the Ukrainian government, ACTI Ukraine, with the help of its affiliate, Alfred C. Toepfer international G.m.b.H. ("ACTI Hamburg") paid third-party vendors to pass on nearly all of that money as bribes to government officials. In total, ACTI Ukraine, ACTI Hamburg, and their executives, employees, and agents paid roughly $22 million to two third-party vendors to pass on nearly all of that money to Ukrainian government officials to obtain over $100 million in VAT refunds. These VAT refunds gave ACTI Ukraine a business advantage resulting in a benefit to ACTI Ukraine and ACTI Hamburg of roughly $41 million.
On December 20, 2013, the DOJ filed a single count Information in the Central District of Illinois against ACTI Ukraine alleging conspiracy to violate the anti-bribery provisions of the FCPA. On the same date, ACTI Ukraine entered into a plea agreement with the DOJ. Under the terms of the agreement, ACTI Ukraine pleaded guilty to the conspiracy charge and agreed to pay a monetary fine of $17,771,613 plus a mandatory assessment of $400. This fine represented an approximately 30% reduction from the bottom of the guidelines sentencing range, which the DOJ agreed was appropriate due to ACTI Ukraine's "(1) the Defendant's timely, voluntary, and thorough disclosure of the conduct; (b) the Defendant's extensive cooperation with the Department; and (c) the Defendant's early, extensive, and unsolicited remedial efforts already undertaken and those still to be undertaken."
In a related action, ADM entered into a Non-Prosecution Agreement with the DOJ related to violations of the internal controls provisions of the FCPA. ADM agreed to pay a monetary penalty of $9,450,000, however, any criminal penalties imposed by the Court on ACTI Ukraine in connection with its guilty plea and plea agreement will be deducted from the $9,450,000 penalty.
