At least in Odebrecht`s case, the cremation of the candle at both ends and mutual trust could only precipitate the process. The lawyers also had to structure the agreement so that an agreement could be quickly reached. To do so, the two parties agreed during the Odebrecht negotiations to obtain and announce a nominal fine, and then to refine the comparison according to the company`s ability to pay. This structure, called solvency, is common in antitrust comparisons, but new in corruption cases. As part of this type of agreement, Odebrecht agreed that the appropriate penalty is $4.5 billion, but says it is only able to pay $2.6 billion. The final amount will be announced after analysis of Odebrecht`s creditworthiness by the DOJ and the Brazilian authorities. Braskem agreed to pay a $632 million fine. For U.S. lawyers, it was difficult to involve parties in other jurisdictions with the ability to pay because they did not know the concept. As part of the agreement on the means of the appeal, the United States will receive the amount paid by Odebrecht to Brazil and Switzerland for the entire duration of its respective agreements, with the United States and Switzerland each receiving 10% of the main amount of the total fine and the remaining 80% for Brazil. The fine is subject to insolvency that the Ministry of Justice and the Brazilian authorities must implement on or before 31 March 2017, as Odebrecht represents them, which can only pay about $2.6 billion during the relevant agreements. The verdict is scheduled for April 17, 2017. On January 29, 2020, the U.S.
Department of Justice and Odebrecht S.A. sent a joint letter to the U.S. District Court for the Eastern District of New York, in which they told the court that the parties had agreed to have Odebrecht`s plea for approximately nine months resupport. Odebrecht`s obligations under the appeal agreement expired on February 20, 2020, but are maintained until November 16, 2020. The argument in this appeal gave the DOJ the option of extending the duration of the obligations under the appeal agreement by a maximum of one year, at its sole discretion. As indicated in the letter, the DOJ requested an extension of approximately nine months and Odebrecht agreed. Odebrecht, a global construction group based in Brazil, and Braskem S.A., a unit in which Odebrecht held 50.11% of the voting shares, pleaded guilty to conspiring to violate the anti-corruption provisions of the Foreign Corrupt Practices Act. In the December 2016 oral arguments, it was said that the companies had conspired to pay hundreds of millions of dollars to government officials in a dozen countries. The DOJ called the behaviour a ”massive and unprecedented system of corruption and bid manipulation.” In a global comparison, Braskem agreed to pay approximately $957 million to U.S., Brazilian and Swiss law enforcement authorities, and Odebrecht accepted a total fine of at least $2.6 billion and up to $4.5 billion until an analysis of payments was possible. On April 17, 2017, the payment capacity was liquidated and Odebrecht set a total settlement amount of $2.6 billion. As part of the core agreement, Odebrecht agreed to implement and maintain a compliance and ethics program and maintain an independent compliance monitor. In its letter of 29 January 2020, the DOJ stated that Odebrecht had failed to comply (1) with supervisory obligations and (2) to ”implement and maintain a compliance and ethics program to prevent and detect violations of FCPA and other anti-corruption laws applicable throughout its activity.” Non-compliance with supervisory obligations includes ”failure to adopt and implement the monitor`s agreed recommendations and not allow the monitor to complete the monitoring.” Odebrecht acknowledged that it had failed to meet the obligations arising from the application in the letter.