Kokesh Raises Questions About Declinations with Disgorgement Under the FCPA Pilot Program

The Harvard Law School Forum on Corporate Governance and Financial Regulation 2017-07-15

Posted by Alex Young K. Oh and Mark F. Mendelsohn, Paul, Weiss, Rifkind, Wharton & Garrison LLP, on Saturday, July 15, 2017
Editor's Note: Alex Young K. Oh and Mark F. Mendelsohn are partners at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul, Weiss publication by Ms. Oh, Mr. Mendelsohn, Randolph T. Chen, and Matthew Driscoll.

On June 16, 2017, the United States Department of Justice issued a declination letter to Linde North America Inc. and Linde Gas North America LLC (collectively, “Linde”), American subsidiaries of a German multinational chemical company, closing an investigation against Linde for potential violations of the Foreign Corrupt Practices Act (“FCPA”). As part of the declination, DOJ required Linde to disgorge and forfeit over $11 million dollars obtained from, or relating to, the alleged corrupt scheme. The Linde declination is the sixth declination issued by DOJ since it announced the Fraud Section’s FCPA Enforcement Plan and Guidance (the “Pilot Program”) on April 5, 2016, [1] and the third declination where DOJ required a company to disgorge profits received from the alleged improper conduct. [2]