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SEC Tries to Write 'Facilitating Payments' Exception Out of FCPA
Last summer, a lawsuit brought by the Securities and Exchange Commission (SEC) alleging Foreign Corrupt Practices Act (FCPA) violations against two individuals related to Noble Corporation, a global oil and gas drilling services company, nearly went to trial in federal court in Texas. SEC v. Jackson and Ruehlen, No. 12-cv-563 (S.D. Tex.). (Note: The authors represented Mr. Jackson in this case. The views expressed herein are theirs alone.) As one of the only civil FCPA cases to proceed to that stage of litigation, the case provided unique insights into the SEC's interpretation of key provisions of the FCPA. The case ultimately settled on very favorable terms for the individuals, but the SEC's position on the facilitating payments exception to the FCPA was a notable departure from its own stated guidance and may herald a renewed attempt by the SEC to further narrow the exception to the point of irrelevance.
Summary of the Litigation And Settlements
The SEC's case arose out of the long-running Panalpina investigation into Nigerian oil and gas drillers, which began in July 2007, and Noble Corporation's subsequent voluntary disclosure and settlement with the SEC and Department of Justice (DOJ) in 2010. A year and a half after the company's settlement, the SEC filed suit against Noble's former CEO and CFO, and its country manager in Nigeria. The suit alleged that they violated the FCPA by approving bribes to Nigerian government officials in connection with temporary import permits for its rigs; falsifying internal accounting records; and circumventing internal controls, among other counts.
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