ICE and the Alcatel-Lucent DPA: A Pandora's Box for Settling FCPA Defendants

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In what my colleague Howard Sklar called the “opening of Pandora’s Box” and as reported by the FCPA Blog with what are “new issues raised in a FCPA case”, Costa Rica’s Instituto Costarricense de Electricidad (ICE), filed a Petition last week for relief and objections to Alcatel-Lucent’s plea agreement and proposed Deferred Prosecution Agreement (DPA), regarding its settlement of charges that it violated the Foreign Corrupt Practices Act (FCPA). This Petition was filed in the federal district court where the settlement and proposed DPA will be passed upon.

As reported in the FCPA Blog, in December, 2009, Alcatel-Lucent S.A. agreed to pay $137 million for bribing officials in Costa Rica, Honduras, Malaysia, and Taiwan. The company and three subsidiaries will pay $92 million to resolve criminal charges with the Department of Justice (DOJ) and $45 million in disgorgement to the Securities and Exchange Commission (SEC). By agreeing to plead guilty, Alcatel-Lucent escaped substantive bribery charges. In a two-count criminal information, the DOJ charged the company with violating the internal controls and books and records provisions of the FCPA.

ICE claimed in its Petition that it was a victim of Alcatel-Lucentand that as such it was entitled to protection by the DOJ in the settlement of the matter. ICE objected the Plea Agreement and DPA for three reasons: (a)The proposed settlement is inconsistent with 18 USC 3771; (b) The proposed settlement is inconsistent with the interests of justice, the public’s interest and public policy; and (c) The Defendants have already violated the DPA.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Fox, Compliance Evangelist | Attorney Advertising

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