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A promise to pay can be an FCPA violation

Tom Fox | September 27, 2017

The South African imbroglio involving the Gupta family and their relationship to the current President of the country continues to be a sinkhole of reputational kryptonite. First was the implosion of the U.K. PR firm Bell Pottinger; now both KPMG, which had botched audits of Gupta family holdings, and McKinsey, allegedly involved in improper conduct, find themselves in hot water for their actions in the country.

McKinsey produced a restructuring plan for a South African state owned utility, Eskom. The next step was to be implementation of the plan for which McKinsey was to be paid up to $370MM over four years. This amount was characterized in one McKinsey report as “exorbitant.” It was, however, not price gouging that impacted the FCPA. It was McKinsey’s work with a business partner on the implementation, Trillian. Eskom allegedly pointed McKinsey to partner with Trillian as a part of the requirement to work with a black empowerment partner. It turned out that Trillian was...

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