Updated to include a response from Fresenius
The U.S. Securities and Exchange Commission today detailed the more than $231 million that Fresenius Medical Care (NYSE:FMS; ETR:FRE) agreed to pay to resolve self-reported violations of the Foreign Corrupt Practices Act.
In its release, the SEC said that it found that Germany-based Fresenius engaged in misconduct in Saudi Arabia, Morocco, Angola, Turkey, Spain, China, Serbia, Bosnia, Mexico, and eight countries in the West African region. The agency added that the misconduct occurred “against a backdrop where the company failed to have sufficient internal accounting controls.”
The company made improper payments through a number of different schemes, according to the SEC, including sham consulting contracts, falsifying documents and funneling bribes through a system of third party intermediaries.
The SEC said that despite having seen “red flags of corruption” since the early 2000s, the company did not devote sufficient resources towards compliance. The agency went on to claim that Fresenius failed to take even basic steps, such as providing anti-corruption training or performing due diligence on its agents.
“In many instances, senior management actively engaged in corruption schemes and directed employees to destroy records of the misconduct. All told FMC paid nearly $30 million in bribes to government officials and others to procure business,” the SEC wrote in its posting.
Fresenius agreed to pay $147 million in disgorgement and interest to the SEC alongside a criminal fine of $84.7 million as part of a non-prosecution agreement that was announced by the Department of Justice last Friday.
Terms of the agreement include a requirement that Fresenius retain an independent compliance monitor for two years as well as the self-reporting of its FCPA compliance efforts for the year after.
“Failure to address the corruption risks in its growing business allowed complicit managers to engage in bribery schemes that went undetected for more than a decade. As companies expand their business, their internal accounting controls and compliance programs must keep up,” FCPA Unit chief Charles Cain said in a press release.
“By engaging in widespread bribery schemes across multiple countries, the company prioritized profits over compliance in its dealings with foreign government officials,” FCPA Unit Enforcement Division Deputy Chief Tracy Price said in a prepared release.
Fresenius commented on the non-prosecution agreement saying that in 2012 it notified the U.S. government about internal investigations into conduct outside the U.S. that may have violated the FCPA.
Fresenius said that as it set aside the funds for the penalties last year, it does not expect the payments to affect its 2019 or 2020 financial outlook.
“We are pleased to have concluded these investigations and to have resolved the issues that we identified and voluntarily disclosed to the U.S. authorities. Since the investigation began we have taken extensive steps to further a culture of ethical business behavior throughout the entire company and to strengthen our compliance programs and internal controls. And we will continue to do so in close cooperation with the authorities. Enhancing these programs is an ongoing effort that will also help us to improve our service to our patients, which is our primary mission,” CEO Rice Powell said in a press release.
In February, Fresenius Medical Care said that it closed the $2 billion acquisition of NxStage Medical and settled self-reported violations of the U.S. Foreign Corrupt Practices Act for nearly $255 million.
At DeviceTalks Boston, Tyler Shultz will give attendees an inside look at Theranos and how he was able to sound the alarm after he realized the company was falling apart. Shultz will take attendees behind the story that everyone is talking about: the rise and fall of Elizabeth Holmes and her diagnostic company, Theranos.
Join Shultz and 1,000+ medical device professionals at the 8th annual DeviceTalks Boston.