Davis Polk – BHP Billiton Announces End of U.S. FCPA Investigations

Davis Polk advised BHP Billiton on investigations conducted by the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Department of Justice (“DOJ”) into potential breaches of the Foreign Corrupt Practices Act (“FCPA”) related to previously terminated minerals exploration and development efforts as well as hospitality provided by the Company to foreign government officials at the 2008 Beijing Olympic Games. The DOJ completed its investigation without taking any action. Today, the SEC announced a settled administrative proceeding related to BHP Billiton’s hospitality program hosted by BHP Billiton in connection with its sponsorship of the 2008 Beijing Olympic Games.

The SEC order finds that BHP Billiton violated the books and records and internal controls provisions of the FCPA, stating that BHP Billiton failed to implement sufficient internal controls to address the heightened risk of violating anti-corruption laws involved in its Olympics hospitality program. The settlement makes no findings of bribery or corrupt intent and notes BHP Billiton’s “significant cooperation” and “significant remedial actions.”

Under the settlement, BHP Billiton is required to pay a $25 million civil penalty and is required to report to the SEC regarding its FCPA and anti-corruption compliance program for one year. BHP Billiton neither admits nor denies the SEC’s findings under the settlement.

BHP Billiton is a Dual Listed Company (“DLC”) comprising BHP Billiton Limited and BHP Billiton Plc. The headquarters of BHP Billiton Limited, and the global headquarters of the combined BHP Billiton Group, are located in Melbourne, Australia. BHP Billiton Plc is located in London, United Kingdom. BHP Billiton Limited has a primary listing on the Australian Securities Exchange and BHP Billiton Plc has a premium listing on the London Stock Exchange, with a secondary listing on the Johannesburg Stock Exchange. In addition, BHP Billiton has two American Depositary Receipt listings on the New York Stock Exchange.
The Davis Polk litigation team included partners Scott W. Muller and Angela T. Burgess, former counsel Cathy O’Rourke, associates Sidney Bashago, Ziad Reslan (on leave) and Samuel J. Zeidman, and former associates Daniel M. Loss and Mathew S. Miller. Members of the Davis Polk team are based in the New York and Hong Kong offices.


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