Practice Note: How Bio-Rad’s old FCPA settlement became a ‘risk factor’
Monday, May 15, 2017 at 8:28AM
Richard L. Cassin in Bio-Rad, Disclosure, Non-Prosecution Agreements, Risk Factor, Whistleblower

You would expect investors to be pleased and optimist when their company resolves an FCPA case by paying relatively moderate penalties and landing a DOJ non-prosecution agreement.

Good news, the dark cloud is gone.

But one company thinks investors should also be concerned.

Bio-Rad Laboratories is warning about the risks created by its 2014 FCPA settlement.

The California-based life science company said in the "Risk Factors" section of an SEC filing last week:

Our settlement with government agencies in connection with violations by us of the U.S. Foreign Corrupt Practices Act could have a material adverse effect on our business, results of operations and financial condition.

Bio-Rad paid the DOJ and SEC $55 million to settle FCPA offenses after subsidiaries made improper payments to foreign officials in Russia, Vietnam, and Thailand to win business.

But it's what happened after that settlement, and what could still happen, that Bio-Rad is warning about.

In last week's SEC filing, Bio-Rad said other countries and third parties might launch investigations based on allegations and admissions in the U.S. settlement and its non-prosecution agreement (pdf).

There's more.

Bio-Rad said many of its big international customers are "government agencies or state-owned or state-controlled universities, hospitals and laboratories."

The risk, the company said, is that. . . .

The disclosure of the NPA and the SEC Order could harm our reputation with these customers, which could materially adversely affect our business, results of operations and financial condition.

There have already been some third-party claims that Bio-Rad warned about.

On January 23, 2015, the City of Riviera Beach General Employees’ Retirement System filed a shareholder derivative lawsuit in the Superior Court of California, Contra Costa County, against three of our then current directors and one former director. We were also named as a nominal defendant.

 That case was stayed pending mediation, the company said.

And then,

On August 13, 2015 and August 18, 2015, respectively, each of International Brotherhood of Electrical Workers Local 38 Pension Fund and Wayne County Employees’ Retirement System filed a stockholder derivative complaint in the Delaware Court of Chancery against four of our then current directors and one former director. We were named as a nominal defendant in the complaints.

The two Delaware lawsuits were consolidated and also stayed pending mediation, Bio-Rad said.

And finally,

On May 27, 2015, our former general counsel, Sanford S. Wadler, filed a lawsuit in the U.S. District Court, Northern District of California, against us and four of our then current directors and one former director. The plaintiff’s suit alleged whistleblower retaliation in violation of the Sarbanes-Oxley Act and the Dodd-Frank Act for raising FCPA-related concerns.

At trial, Bio-Rad said, "Wadler was awarded $10.92 million, plus prejudgment interest of $141,608, post-judgment interest, and . . . litigation costs, expert witness fees, and reasonable attorneys’ fees as approved by the Court."

After the jury trial, Bio-Rad also agreed to pay Wadler $3.5 million in lawyers fees and other costs.

Bio-Rad's Form 10-K filed with the SEC on May 8, 2017 is here (pdf).

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Richard L. Cassin is the publisher and editor of the FCPA Blog.

Article originally appeared on The FCPA Blog (http://www.fcpablog.com/).
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