Harry Cassin Publisher and Editor

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Newmont Mining discloses SEC declination

One of the world's biggest gold miners said in a securities filing this week that the SEC won't recommend an FCPA enforcement action against the company.

Colorado-based Newmont Mining Corporation said it received a declination letter from the SEC "in late February 2017."

The company didn't publicly disclose the declination until Monday's filing.

A year ago Newmont said it was investigating some business activities in countries outside the United States. The investigation included a review of compliance with the requirements of the Foreign Corrupt Practices Act and involved the company and its affiliates and contractors.

In March 2016, Newmont entered into a one-year agreement with the SEC to toll statute of limitations relating to the investigation. The company also entered into a similar tolling agreement with the DOJ.

Tolling agreements extend the time when prosecutors and regulators can bring enforcement actions.

The statute of limitations for the FCPA is five years. It can be extended at the request of the DOJ for three more years to give the government time to gather foreign evidence.

The new disclosure Monday didn't mention the DOJ and that agency's investigation. Newmont said it "cannot predict the ultimate outcome of these matters."

Newmont has about 28,000 employees and contractors. It operates in the United States and in Australia, New Zealand, Peru, Indonesia, and Ghana.

Newmont Mining Corporation trades on the NYSE under the symbol NEM.

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Newmont Mining's full FCPA disclosure in its Form 10-Q filed with the SEC on April 24, 2017 said:

We occasionally identify or are apprised of information or allegations that certain employees, affiliates, agents or associated persons may have engaged in unlawful conduct for which we might be held responsible. We are conducting an investigation, with the assistance of outside counsel, relating to certain business activities of the Company and its affiliates and contractors in countries outside the U.S. The investigation includes a review of compliance with the requirements of the U.S. Foreign Corrupt Practices Act and other applicable laws and regulations. The Company has been working with the U.S. Securities and Exchange Commission (“SEC”) and the U.S. Department of Justice with respect to the investigation.

In March 2016, the Company entered into a one-year agreement with the U.S. SEC tolling the statute of limitations relating to the investigation, and in April 2016, entered into a similar agreement with the U.S. Department of Justice. Both of the initial tolling agreements were effective through October 29, 2016. In September 2016, the Company agreed to extend its tolling agreement with the Department of Justice through April 2017, and agreed to a similar extension with the SEC in October 2016.

In late February 2017, the Company received a declination letter from the SEC relating to this investigation indicating that they do not intend to recommend an enforcement action. As of the filing of these financial statements, we cannot predict the ultimate outcome of these matters.

Accordingly, no provision with respect to these matters has been made in our consolidated financial statements.


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