SEC v. Chiquita Brands (FCPA)
SEC v. Chiquita Brands (FCPA)
Defendant.
COMPLAINT
headquartered in Cincinnati, violated the internal accounting controls andbooks and records
provisions of the Exchange Act in 1996 and 1997 as a result of the conduct of its Colombian
subsidiary, Bantidex. In 1995 and 1996, without the knowledge or consent of any.Chiquita
employees within the United States and in contravention of Chiquitas policies, Banadexs chief
administrative officer authorized the payment of the equivalent of approximately $30,000 to local
officials to secure renewal of a license allowing Banadex to ,hold goods for customs inspection or
nationalization at its Turbo, Colombia port facility. The payment was not properly recorded in
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,,~Banadex; books and records, which are part of Chiquitas books and records. In 1997,
Chiquitas internal audit staff discovered the payment during an audit review and; after an
internal investigation, Chiquita took corrective action which included terminating the responsible
.lURISDICTION
2. This Court has junsdiction pursuant to Sections 21(d)(3) and 27 of the Securities
DEFENDANT
its headquarters in Cincinnati, Ohio. The common stock of Chiquita is registered with the
Commission pursuant to Section 12(b) ofthe Exchange Act and is listed on the New York Stock
Exchange.
subsidiary of Chiquita with its headquarters in Medellin, Colombia. Banadex indirectly reports
to Chiquita.
the Colombian government to act as an intermediary between corporations and Colombian customs
0tIicials.
FACTUAL ALLEGATIONS
The Turbo port facility is owned and operated by Banadex, an indirect wholly-owned subsidiary
of Chiquita.
8. In 1995, the Colombian government issued a decree requiring all current license
holders to submit renewal applications. Bauadex learned of the decree through CBA, its
intermediary with Colombian customs. Under Colombian law, companies are required to retain
licensed customs brokers who interact with customs officials on behalf of the company.
advised Banadex management that renewal of the port facilitys customs license was in jeopardy
because of two previous citations for failure to comply with Colombian customs regulations.
The employee further advised management that replacing the Turbo facility would cost
approximately $1 million.
of Chiquitas policies, Banadexs chief administrative officer authorized Banadexs CEA agent
to make a payment to Colombian customs officials to obtain the license renewal. The chief
administrative officer directed Banadexs security officer and controller to make and process the
payment.
11. Banadexs CEA agent later advised the company that for the Colombian peso
equivalent of approximately $3Q,OOO the citations would be overlooked and the license renewal
granted. Banadex agreed to pay two installments - approximately $18,000 in advance and the
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remainder after renewal. Both installments were paid by Banadexs sectity officer fr0rn.a
12. The initial installment was incorrectly identified in the companys books and
records as a maritime donation (Donation Maritima3. The second installment was incorrectly
identified as relating to a maritime agreement (Acuerdo Maritima). Banadex did not request
permission from, or otherwise inform, any Chiquita employee within the United States regarding
the transaction.
13. Chiquitas policies and proceduresjcontain strict guidelines regarding the use of a
discretionary expenses account. Banadex did not comply with Chiquitas protedure requiring
14. During 1996, Chiquitas internal auditing staff made management aware of a
number of instances in which Banadex had not provided documentation required by Chiquitas
15. Chiquita had strict policies prohibiting payments of the kind made to the customs
officials. To monitor and enforce those policies, Chiquita required quarterly identification and.
parties. Contrary to Chiquitas established procedure, Bauadex employees failed to identify and
disclose the payment to customs officials on the disclosure forms submitted for the relevant
quarters.
16. In April 1997, Chiquita internal audit discovered the September 1996 payment
during an audit review of Banadex. After conducting an internal investigation, Chiquita took
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corrective action, which mcluded terminating the responsible Banadex employee% and
CAUSE OF ACTION
18. Sections 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act, the books and records
and internal accounting controls provisions of the Foreign Corrupt Practices Act, require
reporting companies to make and ~keep books, records, and accounts, which, in reasonable detail,
accurately and fairly reflect their transactions and disposition of assets, and to devise and
(B).] Such companies are also responsible for ensuring that their wholly-owned foreign
19. Banadex employees made inaccurate entries in the documents recording the
transaction and Banadexs general ledger to conceal the payment to customs officials. These
failing to maintain books and records which accurately reflected Banadexs transactions and
dispositions of assets.
accounting controls to ensure that Banadexs books and records accurately and fairly reflected
WHEREFORE, plaintiff Commission respectfklly requests that this Court enter a Final
Judgment ordering Chiquita to~pay a civil penalty pursuant to Section 21(d)(3) of the E&iange
Act.
RespectfUlly s u b m i t t e d ,
&HgL-y+h
Linda,Chatman Thomsen (D.C. Bar. No. 334219)
Gregory S. Bmch (D.C. Bar. No. 413527) J
Gerald T. Balacek
Attorneys for Plaintiff
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, 0.C. 20549-0708
(202) 942-4732