The U.S. Department of Justice (DOJ), published a declination letter on November 16, 2023, that provides valuable information concerning the potential benefits of self-reporting bribery to the DOJ. In the letter, the DOJ stated that it would not prosecute Lifecore Biomedical, Inc. (formerly Landec Corporation) for violations of the Foreign Corrupt Practices Act (FCPA). This decision came despite the DOJ finding that employees and agents of Lifecore and its former U.S. subsidiary, Yucatan Foods L.P., bribed Mexican government officials.
Key Findings
The DOJ announced that its investigation uncovered that officers, employees, and agents of Yucatan (and a company owned by Yucatan) bribed Mexican government officials. These bribes consisted of approximately $14,000 paid to government officials through a third party to secure a wastewater discharge permit. Relatedly, employees and agents of another company owned and operated by Yucatan paid a third-party service provider $310,000 to prepare fraudulent manifests that gave an illusion that the provider delivered wastewater while knowing that a portion of the fee was used for bribes to Mexican government officials to sign the manifests.
Lifecore's Response and DOJ's Decision
Upon discovering these malpractices post-acquisition, Lifecore conducted an internal investigation and voluntarily disclosed the findings to the DOJ within hours after the internal investigation confirmed that misconduct had occurred. The DOJ stated that its decision to decline prosecution was influenced by Lifecore's prompt self-disclosure, full cooperation, and significant remedial measures, including termination of involved officers and enhancement of compliance programs.
Continued Cooperation and Financial Repercussions
Lifecore agreed to continue its cooperation with the government's ongoing investigation. This includes providing information and making relevant individuals available for interviews or testimony. Financially, Lifecore acknowledged the benefits gained from the misconduct and agreed to disgorge US$406,505 for net costs it avoided as a result of the bribery of Mexican government officials.
Implications
This decision by the DOJ signifies recognition of corporate efforts in self-reporting and addressing FCPA violations. It underscores the importance of diligent internal monitoring and swift action upon detecting such issues. U.S. companies, especially those operating internationally, should work closely with legal counsel to minimize risks of FCPA violations, emphasizing robust compliance programs and transparent operational practices.
For investment advisers to private equity and venture capital funds in particular, this decision is a reminder of the potential benefits from having processes in place to monitor for potential FCPA violations by portfolio companies and to ensure that any potential FCPA violations are promptly addressed. As the Lifecore declination letter makes clear, the FCPA applies equally to private and public companies, and FCPA violations can come to light not only in a private fund's acquisition and involvement with the management of a portfolio company but also when portfolio companies themselves engage in transactions in which they acquire other businesses.
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