Fresenius Medical Care reaches ‘agreement in principle’ in FCPA case

German healthcare company Fresenius Medical Care disclosed in a financial report that it has reached an “agreement in principle” with U.S. authorities concerning an investigation into possible violations of the Foreign Corrupt Practices Act. Considering incurred and anticipated legal expenses, impairments, and other costs, the provision totals €224 million (U.S. $255 million) as of Dec. 31, 2018.

Fresenius said beginning in 2012 it received certain communications alleging conduct in countries outside the United States concerning potential violations of the FCPA and other anti-bribery laws. “The company’s supervisory board, through its audit and corporate governance committee, conducted investigations with the assistance of independent counsel,” Fresenius said in its Feb. 20 Form 20-F filing.

In a continuing dialogue, Fresenius said it voluntarily advised the Securities and Exchange Commission and the U.S. Department of Justice about these investigations. These agencies also conducted their own investigations in which the company cooperated.

The focus of these investigations “revolv[ed] principally around conduct in the company’s products business in a limited number of countries outside the United States,” Fresenius stated in the financial report. Fresenius said it took remedial actions, including employee disciplinary actions.

Fresenius said it recorded charges of €200 million (U.S. $227.8 million) in 2017 and €77 million (U.S. $87.7 million) in 2018 “encompassing estimates for the government’s claims for profit disgorgement, penalties, certain legal expenses, and other related costs or asset impairments believed likely to be necessary for full and final resolution, by litigation or settlement, of the claims and issues arising from the investigation,” Fresenius stated in the financial report.

The increase recorded in 2018 considered preliminary understandings with the government on the financial terms of a potential settlement. Following this increase—considering incurred and anticipated legal expenses, impairments, and other costs—the provision totals €224 million as of Dec. 31, 2018.

“The company has reached an agreement in principle with the government agencies encompassing the terms understood to be necessary for settlement. The company believes that the previously recorded charge appropriately accounts for the consequences of the resolution as related to its financial statements. The agreement in principle remains subject to memorialization in fully integrated documents and final approval by authorized officials of the government and the company.”

Fresenius said it “continues to implement enhancements to its anti-corruption compliance program, including internal controls related to compliance with international anti-bribery laws.”