Private equity-backed company charged with bribery, but PE firms not named.
The SEC today filed suit against Indiana-based medical device maker Biomet, after determining that “its subsidiaries and agents bribed public doctors in Argentina, Brazil, and China for nearly a decade to win business.”
Pretty sleazy stuff. For example, here was an email from a Biomet-linked distributor in China:
[Doctor] is the department head of [public hospital]. [Doctor] uses about 10 hips and knees a month and it’s on an uptrend, as he told us over dinner a week ago. …Many key surgeons in Shanghai are buddies of his. A kind word on Biomet from him goes a long way for us. Dinner has been set for the evening of the 24th. It will be nice. But dinner aside, I’ve got to send him to Switzerland to visit his daughter.
Like with so many SEC complaints, this one also was accompanied by a settlement, in which Biomet agreed to pay a total of $22 million in fines, profit disgorgement and prejudgment interest.
What was missing, however, was any mention of Biomet’s private equity owners — which include The Blackstone Group (BX), Goldman Sachs (GS), Kohlberg Kravis Roberts & Co. (KKR) and TPG Capital. Even though it’s an isolated case, the entire private equity industry might be breathing a cautious sigh of relief.
Beginning about two years ago, private equity attorneys began fretting that their clients would get charged with violations of the Foreign Corrupt Practices Act, due to the actions of their portfolio companies. Some of the worry was sparked by private equity’s increased globalization, particularly into emerging markets within Asia and Eastern Europe. Moreover, the SEC had made it clear that the FCPA would be a much higher priority than it had been in the past, and even launched an investigation of private equity firm dealings with sovereign wealth funds.
But, so far, private equity firms have remained unscathed. Seems that the SEC’s bias is to focus on the actual issuer of securities.
“Although the company’s common stock is no longer publicly traded, the company has debt offerings and is an issuer,” explains Kara Brockmeyer, chief of the SEC Division of Enforcement’s FCPA division. “In addition, Biomet’s common stock traded on the NASDAQ during most of the conduct alleged in the complaint.”
Biomet has not yet returned a request for comment. Representatives for Blackstone and TPG Capital declined comment.
Update: Biomet has issued a statement. Read it here.
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