Using the Internet, or the Securities and Exchange Commission’s Website, located at
, perform a search on several U.S. health care publicly-traded companies and choose a health care organization that has been accused of committing health care fraud.
Write a five to six (5-6) page paper in which you:
- Evaluate the level of SOX regulations that applies to for-profit and not-for-profit health care organizations, indicating whether or not mandating SOX requirements for non-profits might reduce fraud and increase corporate governance. Provide support for your rationale.
- Determine whether SOX has been effective in regulating ethical behavior of for-profit health care organizations. Defend your position.
- Review the audit report issued by the external auditing firm from the company’s Website for the year it was accused of fraud. Then, determine whether the external auditors were negligent in preparing the audit report for the company. Formulate an opinion regarding which Internal Control was deficient or what GAAP was violated. Defend your position.
- Determine what provision(s) of SOX was / were violated in the health care fraud case in question. Indicate whether or not SOX adequately provides sanctions to deter the behavior or if changes are needed to the regulations to remedy the issue(s) and thus ensure compliance.
- Based on the fraudulent activity that occurred, recommend two (2) improvements to the internal control environment to reduce those occurrences. Provide detailed recommendations.
- Use at least four (4) quality academic resources in this assignment. Note: Wikipedia and other Websites do not qualify as academic resources.
Your assignment must follow these formatting requirements:
- Be typed, double spaced, using Times New Roman font (size 12), with one-inch margins on all sides; citations and references must follow APA or school-specific format. Check with your professor for any additional instructions.
- Include a cover page containing the title of the assignment, the student’s name, the professor’s name, the course title, and the date. The cover page and the reference page are not included in the required assignment page length.
The specific course learning outcomes associated with this assignment are:
- Evaluate internal controls within an organization and create a risk assessment.
- Analyze ethical theories to evaluate a decision-making process to determine compliance with professional codes of ethics.
- Evaluate the health of organizations to assess the level of risk in an audit engagement.
- Evaluate financial data for potential fraud and prepare an audit approach for detecting fraud.
- Assess the risk of financial misstatement in an IT-based environment.
- Use technology and information resources to research issues in accounting management.
- Write clearly and concisely about accounting management using proper writing mechanics.
UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Release No. 85468 / March 29, 2019
ACCOUNTING AND AUDITING ENFORCEMENT
Release No. 4033 / March 29, 2019
File No. 3-19126
In the Matter of
Fresenius Medical Care AG
& Co. KGaA
CORRECTED ORDER INSTITUTING
PURSUANT TO SECTION 21C OF THE
SECURITIES EXCHANGE ACT OF 1934,
MAKING FINDINGS, AND IMPOSING A
The Securities and Exchange Commission (“Commission”) deems it appropriate that cease-
and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the Securities
Exchange Act of 1934 (“Exchange Act”), against Fresenius Medical Care AG & Co. KGaA
(“FMC” or “Respondent”).
In anticipation of the institution of these proceedings, Respondent has submitted an Offer
of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the
purpose of these proceedings and any other proceedings brought by or on behalf of the
Commission, or to which the Commission is a party, Respondent admits the Commission’s
jurisdiction over it and the subject matter of these proceedings, and consents to the entry of this
Order Instituting Cease-and-Desist Proceedings Pursuant to Section 21C of the Securities
Exchange Act of 1934, Making Findings, and Imposing a Cease-and-Desist Order (“Order”), as
set forth below.
On the basis of this Order and Respondent’s Offer, the Commission finds that:
1. This matter concerns violations of the anti-bribery, books and records and internal
accounting controls provisions of the Foreign Corrupt Practices Act of 1977 (the “FCPA”) [15
U.S.C. 78dd] by FMC, a world-wide provider of products and services for individuals with chronic
kidney failure headquartered in Bad Homburg, Germany. From at least 2009 through 2016,
millions of dollars in bribes were paid to procure business throughout its operations, including in
Saudi Arabia, Angola, and eight countries in the West African region. Further, in FMC’s
operations in those countries, as well as Turkey, Spain, China, Serbia, Bosnia, and Mexico,
payments were not accurately reflected in FMC’s books and records. FMC also failed to have
sufficient internal accounting controls in place, which contributed to the misconduct continuing for
many years across multiple continents. In connection with the misconduct described in Saudi
Arabia, West Africa, and Angola, FMC employees and agents utilized the means and
instrumentalities of U.S. interstate commerce, including the use of internet-based email accounts
hosted by numerous service providers located in the United States. The company benefitted by
over $135 million as a result of the improper payments.
2. FMC is a provider of products and services for individuals with chronic kidney
failure. FMC, operating in over 150 countries, is incorporated under the federal laws of Germany
and is headquartered in Bad Homburg. Since 1996, FMC’s American Depositary Shares traded on
the New York Stock Exchange under the ticker “FMS” and are registered with the Commission
pursuant to Section 12(b). The company files periodic reports, including Form 20-F, with the
Commission pursuant to Section 13(a) of the Exchange Act.
3. The misconduct took place in FMC subsidiaries in Morocco, Portugal, Angola,
Turkey, Spain, China, Serbia, Bosnia, and Mexico. During the relevant time period FMC’s West
Africa business was managed and operated from Fresenius Medical Care Deutschland GmbH, a
limited liability company organized under the federal laws of Germany, and was later operated
from FMC Morocco. The financials for each subsidiary were consolidated with those of FMC.
4. Saudi Advanced Renal Services Ltd. (“SRS”) is a wholly consolidated distributor
that promotes and sells FMC’s products in the Kingdom of Saudi Arabia pursuant to a
Management Assistance Agreement and an Agency and Distributorship Agreement with FMC.
SRS’s financial statements are consolidated with those of FMC.
5. FMC failed to promptly address numerous red flags of corruption in its operations
that were known since the early 2000s. This includes employees making improper payments
through a variety of schemes, including using sham consulting contracts, falsifying documents, and
funneling bribes through a system of third party intermediaries. FMC failed to properly assess and
manage its worldwide risks, and devoted insufficient resources to compliance. In many instances,
senior management actively thwarted compliance efforts, personally engaging in corruption
schemes and directing employees to destroy records of the misconduct. The improper conduct
continued for years in Saudi Arabia, Morocco, eight countries in the West African region, Angola,
Turkey, Spain, China, Serbia, Bosnia, and Mexico.
Conduct Relevant to Saudi Arabia
6. From 2007 to 2012, FMC’s wholly consolidated distributor Saudi Advanced Renal
Services (“SRS”) paid over $4.9 million in improper payments to publicly-employed doctors
(“HCPs”), government officials and others in Saudi Arabia to retain or obtain business. FMC
knew of the high risks in the business, but failed to ensure that sufficient internal accounting
controls were in place. FMC also failed to assign a compliance officer to the region. In 2009 and
early 2011, senior officials at FMC’s German headquarters received reports from a senior SRS
finance officer that the SRS General Manager (“GM”) submitted false invoices and that there was
a practice of making improper marketing and travel expenditures without proper documentation.
The conduct continued and by December 2011, the SRS finance officer elevated his complaints to
the FMC controller and the head of Internal Audit. The conduct continued until late 2012 when
remedial action was first initiated and the GM was terminated in 2013. Overall, FMC benefitted
by over $40 million as a result of the corruption schemes in Saudi Arabia.
7. Payments were made to private and public HCPs, other government officials, and
high ranking officials at a Saudi Technical Organization that was acting in an official capacity
for or on behalf of the Kingdom of Saudi Arabia when it reviewed and approved dialysis
products for use in tenders. Between 2007 and 2012, SRS generated approximately $1.77
million through a check writing scheme. Checks were written to SRS employees who cashed the
checks and handed the cash to the SRS GM. SRS employees sometimes stored bags of cash in a
safe without proper documentation. The transactions were falsely recorded as project marketing
expenses and collection commissions in SRS’ books and records, which FMC consolidated. In
addition to false descriptions, the transactions lacked appropriate support for the accounting
8. Through another scheme, SRS entered into a purported collection commission
agreement with the relative of a MOH employee in connection with bidding on MOH dialysis
machine tenders. While SRS had salaried employees that collected overdue receivables from FMC
customers, the MOH relative was paid over $200,000 for work already performed by these
employees – which was more than the combined total salary paid to these same employees. As a
result, FMC won the tender.
9. A variety of other questionable business schemes included: i) sham consulting
agreements with doctors for services never performed, ii) payments to third party agents in which
doctors had beneficial interest, and iii) improper travel, entertainment, and gifts to doctors. FMC
failed to conduct due diligence on the doctors and agents, or take steps to ensure that agreed upon
services were provided.
10. Some specific examples of the methods used by FMC to make illicit payments to
doctors in Saudi Arabia are as follows:
Improper payments to Doctor A, a high-ranking official at Saudi Technical Organization , who according to
one email, played a critical role in FMC’s factory avoiding an inspection that “could have shut down the
factory or made it ineligible for tenders.” FMC payments to Doctor A were made through commission
agreements with no evidence of services provided. On at least one occasion, it was communicated to SRS
and FMC that Doctor A would not sign necessary papers for FMC products because he had not been paid.
Doctor A received over $220,000. FMC also employed two of Doctor A’s family members despite
knowledge that they were low performers in order to keep the doctor happy.
Doctor B, another high-ranking official of Saudi Technical Organization and who served as a board
member of a prominent charity founded by the Saudi government as well as a director of a company that
provided FMC dialyzers to KSA hospitals, received payments pursuant to contracts with entities owned by
the doctor or consulting contracts in which there was no evidence that services were performed. Once the
contracts expired in 2008, SRS continued to make payments through late 2011 despite the lack of services
rendered. Doctor B was paid over $190,000.
Payments were also made to Doctor C, the CEO of a charity established by a senior Saudi Official and an
organization very influential in determining MOH tender award recipients. In one email, the GM stated
that Doctor C had informed SRS that those who “will support the charity will get the [MOH] orders as
simple as that.” Doctor C and his family were also provided with travel that had no business purpose. In
addition on March 15, 2012, Doctor C, using an internet-based email account, emailed SRS GM a draft
commission contract for his assistance in securing contracts on behalf of FMC. Doctor C received over
Head Nurse D, for a military hospital, also received cash payments over $213,000 through both the check-
to-cash scheme and payments as a purported consultant with no proof of services rendered. SRS made
product sales valued at approximately $1.467 million and won three MOH tenders for the military hospital.
Improper gifts valued over $330,000 were provided to doctors and customers without adequate supporting
documentation with the more expensive gifts given to the more influential customers.
11. SRS also made at least $31,000 in improper payments to Saudi customs officials
through a third-party agent to avoid or reduce penalties and fees. Invoices from the customs agent
mischaracterized the payments as handling charges or miscellaneous expenses. SRS accounting
records show that $1.76 million of additional payments to the customs agent lacked supporting
documentation of services it rendered.
12. Numerous documents were altered, destroyed and falsified in the company’s
accounting records to conceal the bribes. The falsification and destruction of records intensified
once the company’s internal investigation began. For example, employees created fake accounting
records to support a $100,000 check-to-cash transaction related to a bid for a multi-billion dollar
MOH tender. The discovery of the $100,000 payment led FMC to withdraw from the tender.
Conduct Relevant to Morocco
13. From 2006 to 2010, an FMC Senior Officer and FMC Sales Manager in Germany
engaged in a scheme to pay bribes to a Moroccan Official, the chief nephrologist at two state
owned military hospitals, to obtain contracts. They entered into a sham marketing agreement with
Moroccan Official to pay him a 10% commission on a contract with Agadir Military Hospital with
half to be paid in 2007 and afterwards 12.5% annually. They also agreed to pay him bribes on
future projects in Morocco including Rabat Military Hospital.
14. In order to get $123,000 in cash for the Moroccan Official, they devised a scheme
in which they paid a fake bonus to a West Africa manager who had a German bank account. The
senior FMC Germany managers assisted in backdating the fake bonus payment and amending
West Africa manager’s employment contract. West Africa manager then traveled to Germany with
the brother of Morocco Official to retrieve the cash from his German bank, which he then gave to
the brother for the Moroccan Official. Numerous red flags were overlooked in connection with the
bonus payment, including that the bonus payment order and contract amendment were clearly
backdated and didn’t have any relevance to the Moroccan business.
15. Less than one month later, in February 2007, FMC Morocco and the Agadir
Military Hospital entered into a contract to build and provide products for a dialysis center. From
2008 through March 2012, FMC paid the Moroccan Official an additional $111,000 that was also
funneled through fake bonus payments to another FMC manager. All the bribe payments were
falsely recorded as commission payments. FMC earned over $2.3 million in revenue from the
Agadir hospital project as a result of its bribery scheme.
16. FMC also paid bribes to the Moroccan Official to obtain a 2009 contract at the
Rabat Military Hospital, this time using a sham consultant contract with a Moroccan agent
associated with Moroccan Official. FMC failed to identify numerous red flags of the corruption,
including the fact that the contract was backdated and the purported invoices and endorsed checks
from the Moroccan agent were signed by Moroccan Official’s brother, who was also a FMC
Morocco manager. Between 2009 and 2010, FMC paid the agent approximately $221,000
intended for Moroccan Official and falsely recorded as marketing expenses.
17. In April 2012, FMC received a whistleblower email raising various allegations
about payments to government officials in Morocco. In May 2013, FMC received an anonymous
complaint about improper payments related to military hospitals located in Agadir and Rabat.
Despite the 2012 allegations, and a subsequent email received in July 2013, FMC did not initiate
an investigation until January 2014, almost eight months later. After receiving preservation notices
in January 2014, some FMC managers destroyed records and deleted files from computers.
Overall, FMC benefited by over $3 million as a result of the corruption schemes in Morocco.
Conduct Relevant to Eight West African Countries
18. From 2007 to at least 2016, the same FMC Senior Officer and FMC Sales Manager
who orchestrated the bribe schemes in Morocco also engaged in schemes to bribe publicly-
employed hospital doctors and administrators in eight West African countries to win FMC
business. The countries include Gabon, Cameroon, Benin, Burkina Faso, Chad, Ivory Coast,
Niger, and Senegal.
19. In Gabon for example, from October 2007 to 2009, FMC entered into sham
consultant agreements with three government hospital executives in return for their assistance in
obtaining business and timely payments from product sales to Centre Hospitalier de Libreville
(“CHL”), a public hospital. FMC agreed to pay the executives a kickback from each dialysis kit
sold to the hospital, paying the executives over $420,000. The bribe payments were falsely
recorded as “export commissions.”
20. Beginning in 2009, a third party agent (“West African Supplier”) was used as a
conduit for the payments. FMC paid sham “service fees” to West African Supplier, who passed
the funds to public HCPs and hospital administrators who had previously been paid through fake
consultancy agreements. In May 2010, FMC backdated a service agreement with West African
Supplier to January 1, 2009 to better conceal the scheme. From 2009 to 2012, FMC paid West
African Supplier over $807,000 intended for the three Gabonese hospital executives, and over $2.1
million intended for doctors in other West African countries.
21. In 2013, West African Supplier’s relationship with FMC was changed from a third
party agent to a purported distributor. Rather than pay West African Supplier a service fee, it was
provided with a significant margin on sales to the Ministry of Health, CHL, and other West
African hospitals to fund the payments to HCPs. Numerous red flags were present that West
African Supplier was not a true distributor, including the facts that FMC continued to pay for the
delivery of its products to customers and that products were sold to West African Supplier at a
greatly reduced price.
22. A FMC Sales Manager raised concerns about FMC’s loss of revenue using West
African Supplier as a distributor since they were receiving almost 50% less than what had been
invoiced to the hospitals under the prior scheme. The FMC finance director for West Africa
explained the loss of revenue was justified since West African Supplier was absorbing the costs of
making the phony commission payments to the doctors. With the costs shifted to West African
Supplier, FMC books showed expenses were significantly lower, which enabled FMC executives
to conceal the bribe payments to the hospital officials. From 2007 to 2016, FMC made improper
payments in Gabon of approximately $2.3 million either directly to hospital executives or through
West African Supplier.
23. FMC also used West African Supplier as a distributor to funnel improper
commission payments to doctors in return for product sales with public hospitals in Benin, Burkina
Faso, Ivory Coast, Niger, and Senegal. The conduct started in 2007 and continued through at least
2016 when FMC finally terminated the relationship. Throughout the schemes, an FMC West
Africa manager used his personal internet-based email accounts to send spreadsheets of bribe
payments to hospital employees to FMC Germany supervisors, who ensured that the improper
payments were made.
24. From 2007 through 2012, FMC engaged in a similar bribery scheme in Cameroon,
but used a different distributor. For example, FMC gave one hospital official 15% of all hospital
sales and gave another doctor five euros per dialysis kit sold. From 2007 to 2016, approximately
$1.7 million in improper payments to publicly-employed doctors were made from Cameroon
Distributor’s margin on the resale of the FMC products.
25. Despite the ongoing investigations of known corruption in multiple nearby
countries, FMC failed to implement a sufficient system of internal accounting controls. The
bribery schemes in West Africa continued by many of the same FMC managers involved in
schemes in other countries. The books and records often lacked adequate documentary support
and records were falsified. At the direction of more senior FMC managers, employees altered and
destroyed documents and deleted files from computers. Efforts were made to align fictitious
stories about the misuse of company funds and lower-level employees were berated if they didn’t
destroy their laptops or delete emails. Despite multiple red flags of bribery, FMC’s legal,
compliance, and internal audit functions failed to detect and prevent the bribery. Employees were
inadequately trained on the company’s anti-corruption policies, and due diligence on third parties
was minimal. Overall, FMC benefited by over $40 million as a result of the corruption schemes in
West African countries.
Conduct Relevant to Angola
26. In 2004, FMC South Africa explored entering the Angolan dialysis market and
generated a report, which was circulated to several FMC employees, including FMC EMEA
Executive Vice President, that raised red flags about corruption, most notably that Angola’s
Director of Military Services (“Military Official”) received a 20% commission on all dialysis kits
sold to military hospitals and that Angolan Reseller was partially owned by government officials.
An August 7, 2007 email also warned of “concerns about this direct market entry . . . . [that] will
require some extra precaution, documentation, and management attention.”
27. In 2008, FMC Portugal began selling products into Angola through Angolan
Reseller, which was partly owned by Military Official. Further, FMC did not adequately train its
FMC Portugal employees about their dealings with government officials until late 2012. As a
result, from 2008 to 2010, bribes were paid in the form of 20% commissions to Military Official
through Angolan Reseller.
28. In 2008, FMC created FMC Angola, a separate legal entity intended to make sales
into Angola with FMC Portugal retaining management. By 2010, FMC’s relationship with its
reseller became fractured. In June 2010, FMC Portugal orchestrated a scheme by which it
provided a 35% stake in FMC Angola to prominent Angolan nephrologists, including Military
Official, as well as to Angolan Doctor A, a key nephrologist at several Angolan public hospitals
that were state-owned entities. In April 2011, FMC granted a power of attorney to execute the
share transfer, signed by FMC’s senior legal and compliance officer and an FMC Board of
Management member. In January 2012, the shares were transferred to the Angolan officials
without their having paid anything in exchange and without any due diligence conducted on the
29. FMC Angola also entered into a business relationship with Angolan Distributor,
owned equally by the sons of Military Officer. First, FMC Angola paid Angolan Distributor
$559,972 for “temporary storage” services without a contract or actual services performed. FMC
Angola also entered into a contract with Angolan Distributor for “the Provision of Logistics
Services” whereby Angolan Distributor was to provide warehousing storage for $77,300 per
month, which it received despite never providing the warehousing. FMC Angola in fact already
had a lease agreement with another warehouse for the same services at a cost three times less than
the costs charged by Angolan Distributor.
30. In June 2012, a draft internal audit report identified that in Angola “overall controls
are not functioning as intended” and flagged the Angolan Distributor temporary storage
arrangement as a problem since (1) the owner of the company was a shareholder of FMC Angola
and (2) there was a total lack of written documentation relating to the services. FMC Legal and
Compliance issued a directive in October 2012 freezing all payments to Angolan Distributor.
Despite the directive, FMC Angola continued to accrue an additional $878,900 on its books for
storage services never rendered, but ultimately was prevented from making the payment.
31. During the freeze period, in addition to the temporary storage contract with
Angolan Distributor, FMC made Angolan Distributor its exclusive distributor in Angola of certain
products and gave Angolan Distributor one of FMC’s largest clients as a customer. The distributor
arrangement thereby created a significant margin, approximately 60% of sales, that was provided
to the government officials on over $433,000 in sales.
32. FMC’s senior managers both in Portugal and at the parent level failed to take any
timely steps to put a stop to the numerous conflicts raised by the Angolan Distributor relationship.
FMC Portugal misled FMC’s internal audit team when they tried to determine if additional
relationships with the Angolan Distributor existed. Only upon being instructed in July 2013 to
“Please freeze the contract” did a senior FMC Portugal manager report that Angolan Distributor
had been made a distributor for certain sales without any written contract.
33. Despite this new information, it took until November 2013 for an FMC Legal and
Compliance team to review the relationship with Military Officer and the other minority
shareholders, including examining “the applicability and justification of dividends for shareholders
who have not paid for their interest in the company yet.” FMC Legal and Compliance ultimately
concluded in December 2013 that these facts raised “a serious issue under our company’s
government procedures and a problematic behavior . . . . it cannot be questioned that a clear
management board directive” was not followed.
34. During the entire time, FMC Angola also made payments to the other minority
shareholders, Angolan Doctor A and Angolan Doctor B, both government officials, by entering
into consulting contracts with each doctor. Per contracts, Angolan Doctor A was paid $7,500 per
month while Angolan Doctor B was paid $3,140 monthly. Angolan Doctor A discussed his
consultancy payments with FMC using his personal internet-based email account. Pursuant to
these contracts and other salary payments, the doctors received a total of approximately $400,000
from FMC. There was no review of the contracts, no apparent due diligence for conflicts of
interest, and no documentation of services. Overall, FMC benefited by over $10 million as a result
of the corruption schemes in Angola.
Conduct Relevant to Turkey
35. Between 2005 and 2014, FMC Turkey entered into four separate joint ventures with
publicly employed doctors in exchange for those doctors directing business from their public
employer to FMC clinics. The doctors did not provide any capital in exchange for their shares. In
some cases, doctors’ shares were held in the names of other individuals.
36. In a 2007 internal presentation by a FMC Turkey Vice-President, FMC Turkey set
forth a strategy to “select and find ways to work with nephrologists who refer the patients from the
important state hospitals.” The presentation included a proposal to pay salaries and bonuses to
doctors and provide them with 20-30% shares in joint ventures in exchange for the doctors
directing patients to FMC Turkey clinics.
37. In one joint venture involving a prominent doctor at a public hospital in Diyarbakir,
a senior manager at FMC Germany wrote: “The professor who is our shareholder has very strong
relations with all state authorities including the university and other state hospitals. He is in a way
protector of our interests, benefits and operation in the city…. It is very hard to compete and
operate in this city if a powerful local is not backing you…. He should stay as our doctor for the
health and wellbeing of our system in this city.”
38. After recapitalizing the JV, FMC paid that same doctor over $350,000 for his
unpaid interest in the JV, a payment that was based in part on patient enrollment. Then in 2013,
FMC Turkey sold the clinic’s assets to the doctor for $830,000. The FMC AG Board of
Management approved the sale to the doctor in June 2013. As early as at least 2008, FMC senior
management were aware that the doctor did not pay for his initial 35% stake in the clinic, and that
his shares were being held in someone else’s name.
39. In Erzurum, FMC gave shares to a professor with ties to the Turkish Minister of
Health, for referring patients from the university’s clinics. The professor didn’t make any capital
contributions for his shares. Ultimately, the professor was paid $323,000 for his 40% stake despite
having an outstanding $1,553,000 receivable. FMC Turkey managers discussed the need to make
the payment to the professor despite the outstanding receivable. In one exchange among FMC
managers, they noted that if they pushed for payment the “[Professor] would immediately turn his
back to us and fight with us. Knowing his before mentioned local and country level power, … he
would ask the doctors to refer back their patients to state hospital clinic and would also ask the
doctors to change to [a FMC competitor] all our PD patients.”
40. In one JV that should have raised significant red flags, the approval request to the
FMC Board of Management stated that three doctors “currently working in the dialysis unit of the
State Hospital will participate in the startup both as shareholders and employees. It is expected that
on opening 60 patients will be referred from the State Hospital to the new clinic.” An email among
FMC Turkey senior management noted “Our expectations regarding [Yalova] are high as we have
very powerful doctors as partners in these startups. So after a year’s time we expect high patient
numbers and at least breakeven results in two years and a profitable operation after then.” None of
the doctors contributed capital for their shares.
41. In another example, in Kayseri, FMC Turkey entered into a joint venture with a
nephrologist at the state hospital, noting “After 2 years, when the patient number increases preset
levels, [the doctor] will sell their shares at preset amounts and their debt to the company will be
deducted from this amount and the rest will be paid to them.” In August 2012, FMC Turkey
entered into a share purchase agreement to purchase the doctor’s 20% interest, which provided for
a purchase price predicated on the number of patients at the clinic. Between 2012 and 2013, the
doctor received $63,000. In 2014, he received $451,000 in cash and debt reductions, including
debts unrelated to the transaction, for his 20% stake. The payment was based principally on the
number of patients enrolled at the clinic at the time of the sale. Overall, FMC benefited by over $1
million as a result of the improper conduct in Turkey.
Conduct Relevant to Spain
42. In certain public tenders between 2007 and 2014, FMC Spain received advance
information about tender specifications from publicly employed doctors or administrators. Some
of those doctors received improper payments from FMC Spain, including pursuant to consulting
agreements, or other benefits such as travel to medical congresses, trips to the United States,
donations to fund projects for the doctors, and gifts. In some of these tenders, FMC Spain sought
to have the doctors modify aspects of the tenders before the tenders were publicly announced or to
direct hospital sales to FMC.
43. FMC Spain entered into numerous consulting agreements with publicly employed
doctors with limited or no due diligence or compliance review. FMC Spain failed to adequately
document services performed by doctors who also assisted in obtaining or retaining business. Per
the agreements, fixed amounts to be paid to the doctors as “consultants” ranged from $16,000 to
approximately $187,000 per year. Sometimes payments were made without a written agreement.
44. For example, in connection with a 2011 tender held by a Valencia state-owned
hospital, FMC Spain provided Spain Doctor A with draft tender technical specifications and
improvements, a draft scoring methodology, and proposed scores to win the tender. The doctor
used his personal email account to agree to some of the proposals with FMC winning the $2
million tender. FMC Spain paid Spain Doctor A over $114,000 between 2008 and 2011. A
donation of over $40,000 was made to the hospital’s foundation for the doctor’s training programs,
and additional payments were made to the doctor between 2012 and 2014 of $51,600, along travel
sponsorships and gifts.
45. According to a December 2014 email between senior FMC managers discussing
influencing a 2015 tender at a state-owned hospital in Torrecardenas, the company “got [Spain
Doctor B] to decide to support [FMC Spain] to obtain 60% of the adjudication.” Afterward, FMC
won 60% of the tender, valued at approximately $3 million. Spain Doctor B received payments
from FMC, as well as travel sponsorships and gifts.
46. In some instances, FMC Spain made improper payments to doctors to refer patients
to FMC clinics or to use more expensive FMC products. Payments were sometimes made to the
doctors indirectly through consortiums owned by the doctors, or by FMC acquiring businesses
from the doctors and, thereafter, paying for the use of the buildings in which the businesses were
47. For example, FMC Spain made improper payments and provided benefits to six
publicly-employed doctors at a Spanish state-owned hospital. FMC Spain acquired a clinic owned
by the doctors and then paid them 5% of all subsequent sales, and then later leased space from the
doctors. FMC Spain provided additional compensation to the six doctors by entering into a
consulting agreement with various forms of businesses owned by the doctors. In total, FMC paid
the doctors over $3 million.
48. In 2010, FMC’s Internal Audit team found FMC Spain failed to comply with the
company’s policy concerning dealings with foreign officials. In 2014, another Internal Audit
report, sent to the same recipients as the 2010 report and the entire FMC Management Board,
raised significant red flags about FMC Spain’s payments to public officials, including a lack of
documentation for payments related to gifts, donations, sponsorships, commissions, and
consultancy payments. The payments to doctors continued until 2015. Many of these payments
were improperly recorded as consulting expenses in the books and records of FMC and FMC
Spain. Overall, FMC benefited by over $20 million as a
result of the improper conduct.
Conduct Relevant to China
49. From 2007 to 2014, FMC China’s clinic business, Nephrocare, planned and
implemented incentive programs in which bonus payments were provided to publicly-employed
HCPs with which FMC China had supply agreements. The amounts of the payments were based
in part on the number of treatments provided and/or the number of new patients treated, and were
taken into consideration in the clinics’ financial models. Certain emails between FMC China
personnel suggest that the purpose of the bonus payments was to influence clinic procurement
50. During this time period, approximately $6.4 million in expense accrual entries were
related to such bonuses. However, only $1.7 million of the $6.4 million were reconciled to specific
payments. Of the remaining $4.7 million in accruals, the FMC China accounting records failed to
adequately tie the accruals and payments. They were recorded either in the year-end bonus or
other promotional expenses general ledger accounts, and were generally described in underlying
accounting records as “center marketing fees.” The inaccurate record-keeping can be attributed to
a senior FMC China manager, who cautioned a fellow employee in 2011 to avoid the use of the
term bonus due to “internal legal compliance” concerns when describing these payments.
51. As a general practice, these bonuses would be paid once FMC China received
payments it was owed from hospitals for equipment purchases. Payments were made directly to
the doctors and nurses responsible for managing the clinics and in positions to influence clinic
procurement decisions. Some payments were made in cash, while others were made by wire
transfer, and later by a third party agent. FMC China stopped using the third party agent in 2014
after an internal audit report raised concerns that the agent was being paid without corresponding
reports showing proof of services rendered. Overall, FMC benefited by over $10 million as a
result of the improper conduct.
Conduct Relevant to the Balkan Region (Serbia and Bosnia)
52. From 2007 to 2014, four doctors were paid over $329,000 by FMC while serving
on the Serbian Health Fund (“RFZO”) commission or other public tender commission while FMC
sought business from those same public commissions. FMC also paid for side trips and extra day
accommodations for publicly-employed doctors in connection with travel to medical conferences.
For example in 2008, FMC paid $393,000 for travel and accommodations for those same four
dual-employed doctors and their spouses to attend a conference in Philadelphia, PA, which
included non-business side trips to New York City and Cancun, Mexico. Doctors were also
provided laptops and GPS devices.
53. FMC paid dual-employed doctors through a Serbian Agent. In 2010, FMC
compliance issued a directive prohibiting the use of Serbian Agent and requiring that service
contracts have more specificity to support payments. The directive was circumvented when an
FMC Serbia executive approved payments through a third-party transport vendor, who then paid
over $170,000 to the dual-employed doctors. FMC also made over $1 million in payments to
“speed up” the clinic privatization process for four clinics. The consultant’s quarterly reports used
to support the payments were drafted by FMC senior managers. In another instance, FMC senior
managers gave a distributor, operated by a Serbian doctor, cash payments of over $62,000 plus 10
dialysis machines free of charge, which he resold to FMC for $139,500 to prolong a tender silently
and avoid import taxes.
54. In Bosnia, FMC also made improper payments to a prominent Bosnian government
doctor to support FMC’s bid to win a government tender to establish and operate clinics in the
regions of Srpska and Brcko. In November 2008, the doctor was elected to the Brcko Assembly.
A 2008 fourth quarter activity report from the doctor to FMC listed as an achievement for the
quarter “removing all problems regarding the tender in Brcko.” FMC initially failed to investigate
the meaning of that entry and instead paid the doctor $80,850 in December 2008. In February
2009, the doctor was elected the mayor of Brcko and thereafter the consultant agreement was
placed in the name of the doctor’s wife. By 2009, FMC paid the doctor over $1.3 million to
successfully win the bid. FMC also made over $957,000 in payments to a Bosnian healthcare
executive to assist FMC’s establishment of clinics in Brcko and Hercegovina, without any
evidence of services performed. Overall, FMC benefited by over $10 million as a result of the
improper conduct in Serbia and Bosnia.
Conduct Relevant to Mexico
55. In 2010, FMC Mexico engaged in a scheme to increase the price per dialysis kit for
a tender with one of its largest customers in Mexico, Instituto Mexicano del Seguro Social
(“IMSS”), Mexico’s state-run social insurance agency. FMC Mexico employed the services of a
third party agent, Mexican Distributor, to pay kickbacks to IMSS officials relating to the tender
bid. Among other products, Mexican Distributor sold medical kits used in hemodialysis
56. In January 2010, FMC Mexico was awarded a portion of an IMSS subrogation
tender, at an agreed reimbursement price of $92 per treatment, which reflected a price increase that
Mexican Distributor supposedly negotiated for its kits. On December 8, 2010, almost a full year
after the IMSS tender award, FMC Mexico’s General Director and Chief Financial Officer
executed a contract with Mexican Distributor, agreeing to pay Mexican Distributor a commission
of $0.40 per treatment performed on IMSS patients in 2010 and $0.20 per treatment in 2011. The
retroactive contract improperly identified the commissions as being for “advice.”
57. An FMC internal audit report found several problems with this arrangement,
including insufficient evidence that Mexican Distributor rendered services that contributed to the
increase in price, the contract was signed a year after services were supposedly rendered, and
monetary payments were made retroactively. The audit identified $213,500 in improper
commissions paid to Mexican Distributor intended in part for IMSS officials in 2010 and 2011.
Overall, FMC benefited by over $2 million as a result of the improper conduct.
Legal Standards and Violations
58. Under Section 21C of the Exchange Act, the Commission may impose a cease-and-
desist order upon any person who is violating, has violated, or is about to violate any provision of
the Exchange Act or any rule or regulation thereunder, and upon any other person that is, was, or
would be a cause of the violation, due to an act or omission the person knew or should have known
would contribute to such violation.
59. As a result of conduct described above in Saudi Arabia, Angola and West Africa,
FMC violated Section 30A of the Exchange Act, which in relevant part makes it unlawful for an
issuer with securities registered under Section 12 of the Exchange Act or which is required to file
reports under Section 15(d) of the Exchange Act, or any employee or agent acting on its behalf, to
make use of the mails or any means or instrumentality of interstate commerce corruptly in
furtherance of an effort to pay or offer to pay anything of value to foreign officials for the purpose
of influencing their official decision-making, in order to assist in obtaining or retaining business.
Finally, each FMC subsidiary and entity was also an “agent” of FMC within the meaning of the
Foreign Corrupt Practices Act.
60. Further, as a result of the conduct described in each of the countries above, FMC
violated Section 13(b)(2)(A) of the Exchange Act, which requires issuers to make and keep books,
records, and accounts which, in reasonable detail, accurately and fairly reflect their transactions
and dispositions of the assets of the issuer.
61. In addition, as a result of the conduct described in each of the countries above,
FMC violated Section 13(b)(2)(B) of the Exchange Act, which requires issuers to devise and
maintain a system of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary (I) to permit preparation of financial statements in conformity
with generally accepted accounting principles or any other criteria applicable to such statements,
and (II) to maintain accountability for assets; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
FMC’s Self-Disclosure, Cooperation, and Remedial Efforts
62. In determining to accept the Offer, the Commission considered remedial acts
promptly undertaken by Respondent and cooperation afforded the Commission staff. FMC self-
reported certain misconduct and voluntarily provided facts developed during its internal
investigation. FMC’s cooperation with the Commission’s investigation varied at times. FMC
produced documents, including key document binders and translations as needed, and made
current or former employees available to the Commission staff, including those who needed to
travel to the United States.
63. FMC’s remediation included the termination of employees and third parties
responsible for the misconduct and enhancements to its internal accounting controls. FMC
strengthened its global compliance organization; enhanced its policies and procedures regarding
the due diligence process and the use of third parties; created positions to address potential risks;
and increased training of employees on anti-bribery issues.
64. Respondent undertakes to engage an Independent Compliance Monitor and report
to the Commission staff periodically pursuant to the provisions set forth in Attachment A of the
65. Respondent undertakes to require the Independent Compliance Monitor to enter
into an agreement that provides that for the period of engagement and for a period of two years
from completion of the engagement, the Independent Compliance Monitor shall not enter into any
employment, consultant, attorney-client, auditing or other professional relationship with
Respondent, or any of its present or former affiliates, directors, officers, employees, or agents
acting in their capacity. The agreement will also provide that the Independent Compliance
Monitor will require that any firm with which he/she is affiliated or of which he/she is a member,
and any person engaged to assist the Independent Compliance Monitor in performance of his/her
duties under this Order shall not, without prior written consent of the Division of Enforcement,
enter into any employment, consultant, attorney-client, auditing or other professional relationship
with Respondent, or any of its present or former affiliates, directors, officers, employees, or agents
acting in their capacity as such for the period of the engagement and for a period of two years after
66. Certify, in writing, compliance with the undertaking(s) set forth above. The
certification shall identify the undertaking(s), provide written evidence of compliance in the form
of a narrative, and be supported by exhibits sufficient to demonstrate compliance. The
Commission staff may make reasonable requests for further evidence of compliance, and
Respondent agrees to provide such evidence. The certification and supporting material shall be
submitted to Tracy L. Price, Deputy Chief, FCPA Unit, Division of Enforcement, U.S. Securities
and Exchange Commission, 100 F Street, N.E., Mail Stop 5631, Washington, D.C. 20549, with a
copy to the Office of Chief Counsel of the Enforcement Division, no later than sixty (60) days
from the date of the completion of the undertakings.
67. Respondent undertakes to do the following: in connection with this action and any
related judicial or administrative proceeding or investigation commenced by the Commission or to
which the Commission is a party, Respondent (i) agrees to appear and be interviewed by
Commission staff at such times and places as the staff requests upon reasonable notice; (ii) will
accept service by mail or facsimile transmission of notices or subpoenas issued by the Commission
for documents or testimony at depositions, hearings, or trials, or in connection with any related
investigation by Commission staff; (iii) appoints Respondent’s undersigned attorney as agent to
receive service of such notices and subpoenas; (iv) with respect to such notices and subpoenas,
waives the territorial limits on service contained in Rule 45 of the Federal Rules of Civil Procedure
and any applicable local rules, provided that the party requesting the testimony reimburses
Respondent’s travel, lodging, and subsistence expenses at the then-prevailing U.S. Government per
diem rates; and (v) consents to personal jurisdiction over Respondent in any United States District
Court for purposes of enforcing any such subpoena.
68. FMC has entered into a three-year non-prosecution agreement with the United
States Department of Justice that acknowledges responsibility for criminal conduct relating to
certain findings in the Order.
Non-Imposition of a Civil Penalty
69. FMC acknowledges that the Commission is not imposing a civil penalty based
upon the imposition of an $84.7 million criminal fine as part of its resolution with the Department
In view of the foregoing, the Commission deems it appropriate to impose the sanctions
agreed to in Respondent FMC’s Offer.
Accordingly, pursuant to Section 21C of the Exchange Act, it is hereby ORDERED that:
A. Respondent FMC cease-and-desist from committing or causing any violations and
any future violations of Sections 30A, 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act [15 U.S.C.
§§ 78m(b)(2)(A), 78m(b)(2)(B), and 78dd-1].
B. Respondent shall comply with its Undertakings as enumerated in paragraphs 64 to
C. Respondent shall, within fourteen days of the entry of this Order, pay disgorgement
of $135 million and prejudgment interest of $12 million, for total payment of $147 million to the
Securities and Exchange Commission for transfer to the general fund of the United States Treasury,
subject to Exchange Act Section 21F(g)(3). If payment of disgorgement and prejudgment interest is
not made by the date the payment is required by this Order, additional interest shall accrue pursuant
to SEC Rule of Practice 600.
Payment must be made in one of the following ways:
(1) Respondent may transmit payment electronically to the Commission, which will
provide detailed ACH transfer/Fedwire instructions upon request;
(2) Respondent may make direct payment from a bank account via Pay.gov through the
SEC website at http://www.sec.gov/about/offices/ofm.htm; or
(3) Respondent may pay by certified check, bank cashier’s check, or United States
postal money order, made payable to the Securities and Exchange Commission and
hand-delivered or mailed to:
Enterprise Services Center
Accounts Receivable Branch
HQ Bldg., Room 181, AMZ-341
6500 South MacArthur Boulevard
Oklahoma City, OK 73169
Payments by check or money order must be accompanied by a cover letter identifying
FMC as a Respondent in these proceedings, and the file number of these proceedings; a copy of the
cover letter and check or money order must be sent to Tracy L. Price, Deputy Chief, FCPA Unit,
Division of Enforcement, Securities and Exchange Commission, 100 F St., NE, Washington, DC
D. Respondent acknowledges that the Commission is not imposing a civil penalty
based in part upon its cooperation in a Commission investigation and related enforcement action.
If at any time following the entry of the Order, the Division of Enforcement (“Division”) obtains
information indicating that Respondent knowingly provided materially false or misleading
information or materials to the Commission, or in a related proceeding, the Division may, at its
sole discretion and with prior notice to the Respondent, petition the Commission to reopen this
matter and seek an order directing that the Respondent pay an additional civil penalty.
Respondent may contest by way of defense in any resulting administrative proceeding whether it
knowingly provided materially false or misleading information, but may not: (1) contest the
findings in the Order; or (2) assert any defense to liability or remedy, including, but not limited
to, any statute of limitations defense.
By the Commission.
Vanessa A. Countryman
Independent Compliance Monitor
Retention of Monitor and Term of Engagement
1. Fresenius Medical Care AG & Co. KGaA (“Company”) shall engage an
independent compliance monitor (the “Monitor”) not unacceptable to the staff of the Commission
within sixty (60) calendar days of the issuance of the Order. The Monitor shall have, at a
minimum, the following qualifications: (i) demonstrated expertise with respect to the FCPA and
other applicable anti-corruption laws, including experience counseling on FCPA issues; (ii)
experience designing or reviewing corporate compliance policies, procedures, and internal
accounting controls, including FCPA and anti-corruption policies and procedures; (iii) the ability
to access and deploy resources as necessary to discharge the Monitor’s duties; and (iv) sufficient
independence from the Company to ensure effective and impartial performance of the Monitor’s
duties. The Commission staff may extend the Company’s time period to retain the Monitor, in its
sole discretion. If the Monitor resigns or is otherwise unable to fulfill the obligations herein, the
Company shall within thirty (30) days retain a successor Monitor that has the same minimum
qualifications as the original monitor and that is not unacceptable to the Commission staff.
2. The Company shall retain the Monitor for a period of not less than twenty-four
(24) months from the date the Monitor is retained (the “Term of the Monitorship”), unless the
Commission staff finds, in its sole discretion, that there exists a change in circumstances
sufficient to terminate the Monitorship early or extend the Monitorship as set forth in paragraphs
24-25 (Termination or Extension of Monitorship).
3. The Company shall cooperate fully with the Monitor and provide the Monitor with
access to all non-privileged information, documents, books, records, facilities, and personnel as
reasonably requested by the Monitor, which fall within the Monitor’s mandate; such access shall
be provided consistent with the Company’s and the Monitor’s obligations under applicable local
laws and regulations, including but not limited to, applicable data privacy and national security
laws and regulations. The Company shall use its best efforts, to the extent reasonably requested, to
provide the Monitor with access to the Company’s former employees, third party vendors, agents,
and consultants. The Company does not intend to waive the protection of the attorney work
product doctrine, attorney-client privilege, or any other privilege applicable as to third parties.
4. The parties agree that no attorney-client relationship shall be formed between the
Company and the Monitor. In the event that the Company seeks to withhold from the Monitor
access to information, documents, books, records, facilities, current or former personnel of the
Company, its third-party vendors, agents, or consultants that may be subject to a claim of attorney-
client privilege or to the attorney work-product doctrine, or where the Company reasonably
believes production would otherwise be inconsistent with the applicable law, the Company shall
work cooperatively with the Monitor to resolve the matter to the satisfaction of the Monitor. If,
during the Term of the Monitorship, the Monitor believes that the Company is unreasonably
withholding access on the basis of a claim of attorney-client privilege, attorney work-product
doctrine, or other asserted applicable law, and cannot resolve the matter cooperatively with the
Company, the Monitor shall notify the Commission staff.
5. Upon entry of this Order and during the Term of the Monitorship, should the
Company learn of credible evidence or allegations of corrupt payments, false books, records, or
accounts, or the failure to implement adequate internal accounting controls, the Company shall
promptly report such credible evidence or allegations to the Commission staff. Any disclosure by
the Company to the Monitor concerning credible evidence of corrupt payments, false books and
records, or internal accounting control issues shall not relieve the Company of any otherwise
applicable obligation to truthfully disclose such matters to the Commission staff.
6. The Monitor shall review and evaluate the effectiveness of the Company’s policies,
procedures, practices, internal accounting controls, recordkeeping, SOX controls, and financial
reporting processes (collectively, “Policies and Procedures”), as they relate to the Company’s
current and ongoing compliance with the anti-bribery, books and records, and internal accounting
controls provisions of the FCPA and other applicable anti-corruption laws (collectively, “Anti-
corruption Laws”), and make recommendations reasonably designed to improve the effectiveness
of the Company’s Policies and Procedures and FCPA corporate compliance program (the
“Mandate”). This Mandate shall include an assessment of the Management and Supervisory
Boards and senior management’s commitment to, and effective implementation of, the Policies and
Procedures and FCPA corporate compliance program. In carrying out the Mandate, to the extent
appropriate under the circumstances, the Monitor may coordinate with the Company personnel,
including in-house counsel or through designated outside counsel, compliance personnel, and
internal auditors. To the extent the Monitor deems appropriate, it may rely on the Company’s
processes, and on sampling and testing methodologies. The Monitor is not expected to conduct a
comprehensive review of all business lines, all business activities, and all markets. This Mandate
shall not apply to Fresenius Medical Care Holdings, Inc. and its subsidiaries, to the extent that
those entities and/or their employees and agents operate exclusively within the United States.
Nonetheless, the Monitor may seek a briefing on the regulatory environment and the structure of
the compliance program in the United States. If requested by the Monitor, the Company shall
provide such a briefing, with reasonable consideration of the scope of the Mandate. Any disputes
between the Company and the Monitor with respect to the Work Plan shall be decided by the
Commission staff in its sole discretion.
7. During the Term of the Monitorship, the Monitor shall conduct an initial review
and two follow-up reviews and prepare an initial report and a first and second follow-up report,
and issue a Certification Report if appropriate, as described below.
Initial Review and Report
8. Promptly upon being retained, the Monitor shall prepare a written Work Plan,
which shall be submitted to the Company and the Commission staff for comment no later than
thirty (30) days after being retained.
9. In order to conduct an effective Initial Review and to understand fully any existing
deficiencies in the Company’s Policies and Procedures and FCPA corporate compliance program,
the Monitor’s Work Plan shall include such steps as are reasonably necessary to understand the
Company’s business and its global anti-corruption risks. The steps shall include:
(a) inspection of relevant documents, including the internal accounting
controls, recordkeeping, and financial reporting policies and procedures as
they relate to the Company’s compliance with the books and records,
internal accounting controls, and anti-bribery provisions of the FCPA and
other applicable anti-corruption laws;
(b) onsite observation of selected systems and procedures comprising the
Company’s Policies and Procedures and FCPA corporate compliance
program, including anti-corruption compliance procedures, internal
accounting controls, recordkeeping, due diligence, and internal audit
procedures, including at sample sites;
(c) meetings with, and interviews of, as relevant, the Company employees,
officers, directors, and, where appropriate and feasible, its third-party
vendors, agents, or consultants and other persons at mutually convenient
times and places; and
(d) risk-based analyses, studies, and testing of the Company’s FCPA
corporate compliance program.
10. The Monitor may take steps as reasonably necessary to develop an understanding
of the facts and circumstances surrounding prior FCPA violations that gave rise to this action
or violations of other applicable Anti-corruption Laws, but shall not conduct his or her own
inquiry into those historical events.
11. After receiving the Initial Review Work Plan, the Company and Commission staff
shall provide any comments concerning the Initial Review Work Plan within fifteen (15) days to
the Monitor. Any disputes between the Company and the Monitor with respect to the Initial
Review Work Plan shall be decided by the Commission staff in its sole discretion. Following
comments by the Company and Commission staff, the Monitor will have ten (10) days to submit a
Final Initial Review Work Plan.
12. The Initial Review shall commence no later than sixty (60) days from the date of
the engagement of the Monitor (unless otherwise agreed by the Company, the Monitor, and the
Commission staff). The Monitor shall issue a written report within one hundred twenty (120) days
of commencing the Initial Review, setting forth the Monitor’s assessment and, if necessary,
making recommendations reasonably designed to improve the effectiveness of the Company’s
Policies and Procedures and FCPA corporate compliance program as they relate to the Company’s
compliance with the FCPA and other applicable Anti-corruption Laws. The Monitor should
consult with the Company concerning his or her findings and recommendations on an ongoing
basis and should consider the Company’s comments and input to the extent the Monitor deems
appropriate. The Monitor may also choose to share a draft of his or her report with the Company
and Commission staff prior to finalizing it. The Monitor shall provide the report to the
Management Board of the Company and contemporaneously transmit a copy to
13. Within ninety (90) days after receiving the Monitor’s Initial Review Report, the
Company shall adopt and implement all recommendations in the report, provided, however, that as
to any recommendation that the Company considers unduly burdensome, impractical, costly, or
inconsistent with applicable law or regulation, the Company need not adopt that recommendation
at that time, but may submit in writing to the Monitor and the Commission staff within fifteen (15)
days of receiving the report, an alternative policy, procedure, or system designed to achieve the
same objective or purpose.
14. In the event the Company and the Monitor are unable to agree on an acceptable
alternative proposal, the Company shall promptly consult with the Commission staff. Any
disputes between the Company and the Monitor with respect to the recommendations shall be
decided by the Commission staff in its sole discretion. The Commission staff shall consider the
Monitor’s recommendation and the Company’s reasons for not adopting the recommendation in
determining whether the Company has fully complied with its obligations. Pending such
determination, the Company shall not be required to implement any contested recommendation(s).
15. With respect to any recommendation that the Monitor determines cannot
reasonably be implemented within ninety (90) days after receiving the report, the Monitor may
extend the time period for implementation with prior written
approval of the Commission staff.
Follow Up Reviews
16. The Monitor shall conduct a minimum of two Follow-Up Reviews. The Monitor
shall submit a written work plan for each follow-up review to the Company and Commission
staff within sixty (60) calendar days after the issuance of either the initial report, or the
applicable follow-up report. The Company and Commission staff shall provide any comments
concerning the work plan within fifteen (15) calendar days in writing to the Monitor. Any
disputes between the Company and the Monitor with respect to the written work plan shall be
decided by the Commission staff in its sole discretion. Following comments by the Company
and Commission staff, the Monitor will have ten (10) calendar days to make revisions to the
follow-up work plan.
17. The Monitor shall commence the follow-up review pursuant to the work plan no
later than ninety (90) calendar days after the issuance of the initial report, or applicable follow-up
report, (unless otherwise agreed by the Company, the Monitor and the Commission staff). The
Monitor shall issue its written follow-up report within one hundred-twenty (120) calendar days
of commencing the follow-up review. The follow-up report shall set forth the Monitor’s
assessment of, and any additional recommendations regarding, the Policies and Procedures as
they relate to the Company’s compliance with the Anti-corruption Laws; the Monitor’s
assessment of the implementation by the Company of any recommendations made in the initial
report, or follow-up report if applicable; and the Monitor’s assessment of the commitment of the
Company’s Supervisory and Management Boards and senior management to compliance with
18. Within ninety (90) days after receiving the Monitor’s follow up report, the
Company shall adopt and implement all recommendations in the report, provided, however, that as
to any recommendation that the Company considers unduly burdensome, impractical, costly, or
inconsistent with applicable law or regulation, the Company need not adopt that recommendation
at that time, but may submit in writing to the Monitor and the Commission staff within fifteen (15)
days of receiving the report, an alternative policy, procedure, or system designed to achieve the
same objective or purpose.
19. In the event the Company and the Monitor are unable to agree on an acceptable
alternative proposal within fifteen (15) days, the Company shall promptly consult with the
Commission staff. Any disputes between the Company and the Monitor with respect to the
recommendations shall be decided by the Commission staff in its sole discretion. The
Commission staff shall consider the Monitor’s recommendation and the Company’s reasons for
not adopting the recommendation in determining whether the Company has fully complied with
its obligations. Pending such determination, the Company shall not be required to implement any
contested recommendation(s). The Monitor shall repeat the process of Follow-Up Reviews
until the terms in paragraph 21 (Certification of Compliance) or paragraphs 24-25 (Termination
or Extension of Monitorship) are met.
20. Throughout the Term of the Monitorship, the Monitor shall disclose to the
Commission staff any credible evidence that corrupt or otherwise suspicious transactions
occurred, or payments of things of value were offered, promised, made or authorized by any
entity or person within the Company, or any entity or person working directly or indirectly for or
on behalf of the Company, or that related false books and records may have been maintained by
or on behalf of the Company. The Monitor shall contemporaneously notify the Company’s
Global General Counsel, Chief Compliance Officer, or Audit Committee for further action unless
at the Monitor’s discretion he or she believes disclosure to the Company would be inappropriate
under the circumstances. The Monitor shall address in his or her reports the appropriateness of
the Company’s response to all improper activities, whether previously disclosed to the
Commission staff or not.
Certification of Compliance
21. At the conclusion of the ninety (90) calendar day period following the issuance of
the second follow-up report, or later follow-up report if applicable, if the Monitor believes that
the Company’s Policies and Procedures and FCPA compliance program are reasonably designed
and implemented to detect and prevent violations of the Anti-corruption Laws and are
functioning effectively, the Monitor shall certify the Company’s compliance with its compliance
obligations under the Order. The Monitor shall then submit to the Commission staff a written
report (“Certification Report”) within forty (40) calendar days. The Certification Report shall set
forth an overview of the Company’s remediation efforts to date, including the implementation
status of the Monitor’s recommendations, and an assessment of the sustainability of the
Company’s remediation efforts. The Certification Report should also recommend the scope of
the Company’s future self-reporting. Also at the conclusion of the ninety (90) calendar day
period following the issuance of the second follow-up report, the Company shall certify in
writing to the Commission staff, with a copy to the Monitor, that the Company has adopted and
implemented all of the Monitor’s recommendations in the initial and follow-up report(s), or the
agreed-upon alternatives. The Monitor or the Company may extend the time period for issuance
of the Certification Report or the Company’s certification, respectively, with prior written
approval of the Commission staff.
22. At such time as the Commission staff approves the Certification Report and the
Company’s certification, the monitorship shall be terminated, and the Company will be permitted
to self-report to the Commission staff on its enhanced compliance obligations for the remainder
of the term of the Order. The Commission staff, however, reserves the right to terminate the
monitorship absent certification by the Monitor, upon a showing by the Company that
termination is, nevertheless, in the interests of justice.
23. If permitted to self-report to the Commission staff, the Company shall thereafter
submit to the Commission staff a written Initial Self-Report and Follow Up Self-Report at six (6)
month intervals, setting forth a complete description of its remediation efforts to date, its
proposals to improve the Company’s Policies and Procedures and FCPA compliance program for
ensuring compliance with the Anti-corruption Laws, and the proposed scope of the subsequent
reviews. The Company shall disclose any credible evidence that corrupt or otherwise suspicious
transactions occurred, or payments of things of value were offered, promised, or provided to
foreign officials, that it learns of that occurred after the date of this Consent. The Company may
extend the time period for issuance of the self-report with prior written approval of the
Termination or Extension of the Monitorship
24. If at the conclusion of the ninety (90) calendar-day period following the issuance
of the second follow-up report, or later follow-up report if applicable, the Commission staff
concludes in its sole discretion that the Company has not by that time successfully satisfied its
compliance obligations under the Order, the Term of the Monitorship shall be extended for
twelve (12) months. Under such circumstances, the Monitor shall commence additional Follow-
Up Reviews in accordance with Paragraphs 16-19.
25. If at the conclusion of the thirty-six (36) month period the Commission staff
concludes the Company has not met its obligations under the Order, the Commission staff in its
sole discretion may extend the Monitorship or Self-Reporting requirements up to forty-eight (48)
months from the issuance of the Order, and require reporting as set forth for Follow-Up Reviews
Extensions of Time
26. Upon request by the Monitor or the Company, the Commission staff may extend
any procedural time period set forth above for good cause shown.
Confidentiality of Reports
27. The reports submitted by the Monitor and the periodic reviews and reports
submitted by the Company will likely include confidential financial, proprietary, competitive
business, or commercial information. Public disclosure of the reports could discourage
cooperation, impede pending or potential government investigations, or undermine the objective
of the reporting requirement. For these reasons, among others, the reports and the contents
thereof are intended to remain and shall remain non-public, except (i) pursuant to court order, (ii)
as agreed to by the parties in writing, (iii) to the extent that the Commission determines in its
sole discretion that disclosure would be in furtherance of the Commission’s discharge of its
duties and responsibilities, or (iv) as is otherwise required by law.
Address for All Written Communications and Reports
28. All reports or other written communications by the Monitor or the Company
directed to the Commission staff shall be transmitted to Tracy L. Price, FCPA Unit, Deputy Chief,
Division of Enforcement, U.S. Securities and Exchange Commission, 100 F Street NE,
Washington D.C. 20549.