Talk about a reminder of the past, Asante Berko, a former Executive Director in Goldman Sachs, recently was arrested in London on criminal FCPA charges arising from his involvement in a bribery scheme in Ghana.

The surprising part of the case was the delay in his arrest – over 2 years. 

In 2020, Berko was charged by the SEC for FCPA violations.  He settled the case with the SEC in 2021 by agreeing to pay $329,000 to the government.  Berko’s settlement did not include a specific acknowledgement of the truth of the allegations against him.

Unfortunately for Berko, he did not know that in August 2020 a criminal indictment was filed under seal in Brooklyn New York, shortly after the filing of the SEC case. 

Two years after the filing of the SEC case, in November 2022, when Berko arrived in London at Heathrow Airport, he was arrested on the criminal indictment, and his indictment was unsealed. 

Berko was charged in a six-count indictment with conspiring with two Ghanian officials and four other individuals to benefit Goldman Sachs, himself and a Turkish energy company to build a power plant in Ghana.

Berko was a member of the Goldman Sachs team responsible for arranging financing for the power plant project.  He orchestrated the payment of bribes to secure the necessary approvals for the Turkish company.  Goldman had a 16 percent ownership stake in the project.

Berko was a vice president in Goldman Sachs’s natural resources group before he resigned in December 2016.  He then joined Ghana’s state-owned oil company, Tema Oil Refinery but resigned that position after the SEC enforcement action.

As outlined in the indictment, between 2014 and 2017, Berko orchestrated the bribery scheme to secure the electrical power contract for the Turkish energy company from the Ghana government.  Specifically, the Turkish energy company needed to secure a power purchase agreement (“PPA”) or emergency power agreement (“EPA”) with the Republic of Ghana.  To secure an EPA, certain Ghanian officials and entities, including a senior Ghanian official, as well as the executive, cabinet and parliament, had to approve the EPA. It also required the approval of the Ghana Grid Company and the public Utilities Commission.

Berko and his co-conspirators arranged to pay bribes to relevant Ghanian officials and sought reimbursement from the Turkish energy company.  To secure such reimbursement, Berko and his co-conspirators submitted false invoices for “consulting services” allegedly provided by a Ghana consulting company, which were then paid by the Turkish energy company.  The specific consulting payments were made from a Turkish bank but were routed through correspondent banks in the United States.

Once the EPA was secured, Berko and his co-conspirators planned to arrange for continuing payments from the Turkish energy company through a services contract between the Ghana consulting company.

In total, Berko and others paid more than $700,000 in bribes to pay several Ghanian officials, including government officials in the parliament, the public utilities commission and the Grid Company.

Goldman Sachs was expected to arrange $190 million in loans and provide a $75 million letter of credit.  If executed, Goldman Sachs anticipated earning over $11 million in total fees from the project, while retaining a 16 percent ownership interest in the power plant project. 

We always focus on foreign bribery — the FCPA and corporate bribery of foreign officials.  It is certainly a problem that undermines economic development and human rights.

However, bribery and corruption is real and significant in the United States, from local to state to federal government officials, the news is filled with instances of bribery and corruption.  Wherever there is money flowing, there is sure to be fraud and corruption.  Even outside government institutions, various industries suffer from bribery and corruption — particularly the drug industry and their interactions and relationships with physicians.

A drug company (like medical device companies) can sink or swim depending on the support they get from physicians — whether the doctors will write prescriptions for their patients.  As a result, here is a profound grasp of the obvious — drug companies face high-risk when dealing with doctors. 

In a recent announcement, DOJ announced two resolutions on an ongoing investigation focused on Avanir Pharmaceuticals and its neurological drug, Nuedexta.  Specifically, Dr. Deepak Raheja, a neurologist, and Frank Mazzucco, a company sales representative, pleaded guilty on the eve of their trial to a scheme to bribe doctors to prescribe Nuedexta. Both defendants admitted to a bribery scheme in which Mazzucco arranged to pay bribes to Dr. Raheja and other doctors to write more prescriptions for Nuedexta, even for patients who did not suffer from the condition the drug treated.

Between 2011 and 2016, Avanir paid Raheja around $331,000 in bribes in exchange for 10,088 prescriptions of Nuedexta (the highest in the United States).  In addition to paying Raheja, Mazzucco arranged with an employee to incentivize other physicians to increase the number of prescriptions.

Nuedexta is used to treat pseudobular, a condition that causes involuntary and frequent crying and laughing fits, and is often associated with patients who suffer strokes.

As part of the plea deals, Raheja agreed to serve 2.5 years in prison, surrender his license and pay a fine up to $300,000 and $1.18 million in restitution. Mazzucco agreed to serve between 15 to 21 months and payment of $488,000 in restitution.

These last two deals, however, is the end of a long and tortured prosecution of corruption that permeated Avanir’s Nuedexta over the last three years.

Starting with the company itself, Avanir admitted liability for its bribery scheme and paid a $13 million fine and $96 million in False Claims Act penalties.  Avanir illegally pushed its bribery scheme by using physician speaker programs to recruit physicians to promote the drug.

Raheja joined the speaker’s bureau in 2011 and gave 211 presentations during a five-year period.  He was paid $1500 for each presentation.

In 2019, two sales representatives, Gregory Hayslette and Dr. Bhupinder Sawhny, plead guilty after being charged in the same indictment with Mazzucco and Raheja. In addition, Raheja falsely diagnosed patients with the condition and documented false symptoms in patient records to support such a false diagnosis.

Mazzucco helped to arrange the speaker bureau program, many of which had little to no educational value or purpose.  Each program included an expensive dinner for attendees.