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SEGURO
Plaintiff,
V.
officials to sell more medical products. As a result of its corruption, Orthofix garnered obscene
profits, netting about $4.9 million in profits on about $8.7 million in sales of medical equipment.
3.
Mexican Social Security Institute, IMSS, an agency of the Mexican government. Orthofix used its
wholly-owned Mexican subsidiary, Promeca S.A. de C.V. (Promeca), to deliver the bribes.
This Court has jurisdiction pursuant to 28 U.S.C. 1331 (federal question) because
This Court has venue pursuant to 18 U.S.C. 1965(a) and (b) and 28 U.S.C.
1391(b), because a substantial part of the events and omissions giving rise to the claims presented
herein occurred in this District.
III. PARTIES
6.
IMSS is the Mexican Social Security Institute, a decentralized agency of the United
Mexican States. IMSS is responsible for providing medical care to the majority of Mexican citizens.
7.
development, manufacture, marketing and distribution of medical devices, and was incorporated in
Curacao. It sells its products around the world from facilities in the United States, the United
Kingdom, Italy, Mexico, and elsewhere. Worldwide, Orthofix employs more than 1,500 people. Its
current corporate administrative offices are in Lewisville, Texas. It can be served at National
Registered Agents, Inc., 3451 Plano Parkway, Lewisville, TX 75056.
services to Mexican workers and their families. It was created in 1943 by order of the Mexican
President, who continues to select IMSSs General Director.
9.
IMSS provides health care services to tens of millions of people at hospitals that
IMSS owns and operates throughout Mexico. Mexicos government funds IMSS through taxation
and compulsory contributions.
10.
Orthofix is an orthopedic medical device company that provides surgical and non-
surgical medical products for various market sectors, such as spine, orthopedics, and sports
medicine. The company distributes its products both domestically in the United States and
internationally in multiple countries.
11.
was an indirectly wholly-owned subsidiary of Orthofix that distributed Orthofixs medical devices in
Mexico. Promeca is no longer in business.
12.
During the period 2003 through 2010, Promeca sold Orthofixs products to
government and private hospitals in Mexico. Approximately 60% of Promecas revenues came from
IMSS.
13.
During this entire period, Promeca was subject to Orthofixs control. Orthofix was
responsible for ensuring Promecas continued solvency, and periodically infused Promeca with
additional capital. Promecas financial results were consolidated with Orthofixs corporate financial
statements, books, and records. Orthofix personnel based in the United States oversaw Promeca's
activities, reviewed and approved Promecas annual budgets, and had the authority to hire and fire
Promecas officers.
Chocolates
14.
From around 2003 through around March 2010, with Orthofixs knowledge,
Promeca and its employees paid more than $300,000 to Mexican government officials in return for
agreements with IMSS and its hospitals to purchase millions of dollars in Orthofix products.
IMSS FIRST AMENDED COMPLAINTpage 3
15.
gifts and travel packages, some of which were intended to corruptly influence IMSS to retain their
business. The various gifts included vacation packages, televisions, laptops, appliances, and in one
case, the lease of a Volkswagen Jetta.
17.
18.
As a direct result of the bribes, Orthofix generated about $8.7 million in gross
From at least 2003 to 2007, IMSS hospital officials were in charge of purchasing
In around 2003, Promeca won contracts to sell Orthofixs products to two IMSS
Promeca won these contracts as a direct result of agreeing to pay certain hospital
officials a percentage of collected sales revenue generated through sales to the hospitals.
23.
From around 2003 until around 2007, Promeca delivered to a Mexican hospital
official at Lomas Verdes cash payments equal to as much as 5% of Promecas collected sales to that
hospital. Beginning in or around July 2007, Promeca stopped making cash payments to the official
and instead leased a vehicle for the official to drive. The official drove that leased car until around
September 2010.
24.
These payments were bribes from Promeca to the official, paid in order to secure
From around 2003 until around 2006, Promeca delivered to a Mexican hospital
official at Magdelena de las Salinas cash payments equal to as much as 10% of Promecas collected
sales to that hospital.
26.
These payments were bribes from Promeca to the official, paid in order to secure
From around 2006 until around 2007, Promeca delivered to another Mexican
hospital official at Magdelena de las Salinas cash payments equal to as much as 6% of Promecas
collected sales to that hospital.
28.
These payments were bribes from Promeca to the official, paid in order to secure
In 2008, IMSS began purchasing medical products under a new national tender
system, where a special IMSS committee, rather than the individual hospitals, selected the winning
bidder who would supply IMSS nationwide.
30.
In response, Promeca established a new bribery system to ensure that Orthofix did
To achieve this, Promeca made payments to three front companies, which were
33.
Promeca won the national tenders for 2008 and 2009 as a result of the bribes.
34.
As promised to the corrupt officials, Promeca paid the front companies 5% and 3%,
District of Texas.
36.
Orthofixs involvement in the bribery scheme was such that it ultimately formally
accepted its responsibility in a deferred prosecution agreement with United States authorities. In that
agreement, Orthofix expressly admits, accepts, and acknowledges that it is responsible for the acts
of its officers, directors, employees, agents, and those of Orthofixs subsidiaries as charged in the
criminal Information filed by the United States government and in a Statement of Facts attested to
by Orthofix.
37.
Moreover, Orthofix expressly agrees that it shall not make any public statement,
V. IMSS DAMAGES
39.
40.
First, Orthofix corrupted and bribed IMSS officials with funds culled from the profit
that Orthofix was reaping on IMSS contracts obtained through the bribes. The contract price,
therefore, was inflated at least by the amount of the bribes.
41.
42.
and the healthcare providers ability to impartially evaluate potential medical device providers.
Because the Orthofix contracts were, in essence, non-competitive as a result of the bribes, IMSS
paid an artificially inflated price for the goods and services provided thereunder, resulting in lost
opportunities for expenditures of those funds to address Mexican citizens healthcare needs in other
areas. The effects of these harms have reverberated throughout the organization.
43.
procurement procedures voided Orthofixs contracts, and therefore, Orthofix should be required to
return all proceeds received from IMSS, retaining at most the actual production cost of the
equipment it sold.
Based on the foregoing facts, IMSS raises the following claims for relief:
The enterprise, Promeca, had a distinct purposeto sell Orthofixs products within
Mexico and to bribe IMSS officials in order to secure contracts for the sale of those products to
IMSS hospitals.
47.
The enterprise had a distinct structure. Promeca was a Mexican company, wholly
49.
Every one of the bribes paid by Orthofix, through Promeca, to IMSS was a
racketeering activity including at least mail and wire fraud (18 U.S.C. 1341 and 1343), violations of
the Travel Act (18 U.S.C. 1952) and money laundering (18 U.S.C. 1956 and 1957).
Orthofixs scheme necessarily involved multiple violations of the mail and wire fraud
statutes, because the scheme could not have functioned without phones, faxes, e-mails, and wire
transfers, including Orthofixs instructions and supervision of Promeca.
b. Money Laundering
51.
money laundering.
52.
With the intent to carry out the unlawful activity of bribery and violations of the
Foreign Corrupt Practices Act and the Travel Act, Orthofix concealed and disguised the nature,
source and control of money transferred to Promeca and to IMSS officials. 18 U.S.C. 1956(a)(3).
53.
unlawful activities and concealed their nature and source on its books and records and public filings.
18 U.S.C. 1956(2).
Orthofix violated the Travel Act by traveling in interstate or foreign commerce and
by using facilities of interstate and foreign commerce (including, without limitation, mail, wire, email, and courier services) with the intent to promote, manage, establish, carry on, and facilitate the
promotion of bribery in violation of the Foreign Corrupt Practices Act, 15 U.S.C. 78dd.
55.
Orthofix also violated the Travel Act by traveling in interstate or foreign commerce
and by using facilities of interstate and foreign commerce (including, without limitation, mail, wire,
e-mail, and courier services) to distribute the proceeds of its illegal conduct.
d. Bribery
56.
18 U.S.C.
1961(1) (racketeering activity means (A) any act or threat involving bribery [under state
law].).
Orthofixs racketeering activity constituted a pattern, over the course of many years,
in that the conduct had a central purpose of bribing IMSS officials in order to secure multiple
lucrative contracts.
58.
This pattern became the regular means of conducting business at Promeca and
Orthofix.
Orthofix received income from Promecas pattern of racketeering activity as set out
above and used that income to operate Orthofix in interstate and foreign commerce.
61.
Orthofix agreed to the unlawful purpose of the conspiracyto bribe IMSS officials
above.
in order to secure lucrative contracts by which IMSS would purchase Orthofix products.
62.
commerce. Orthofix knowingly joined the conspiracy to bribe IMSS officials, doing so through a
pattern of racketeering by agreeing to commit and in fact committing the predicate acts listed above.
64.
In fact, at the time of contracting and thereafter Orthofix was violating Mexicos
anti-bribery laws by bribing corrupt officials. Orthofix was aware that its representations to the
contrary were false at the time they were made.
68.
Orthofix conspired with corrupt IMSS officials and Promeca executives to defraud
IMSS by overcharging for medical devices in order to pay bribes back to the corrupt officials.
71.
Orthofix and corrupt IMSS officials agreed on the unlawful purpose of the
conspiracy, collaborating in order to devise a scheme to pay bribes to the corrupt officials. The
IMSS FIRST AMENDED COMPLAINTpage 10
conspirators scheme including formulating ways to hide the bribes by mislabeling them as training
or other costs. Orthofix voluntarily joined the conspiracy in order to secure the lucrative sales
contracts.
72.
Orthofix and the corrupt officials took steps to implement the scheme, including
Articles 50 and 60 of the Mexican Law of Acquisitions, Leases and Services of the
Orthofix violated these laws by funneling bribes to corrupt hospital officials through
G. Seventh Claim for Relief Violation of Chapter 5, Article 1910 of the Mexican
Civil Code
75.
Chapter 5, Article 1910 of the Mexican Civil Code prohibits inducement of and
participation in breaches of fiduciary duties owed by IMSS officials to IMSS and the Mexican nation.
76.
Orthofix violated this provision when it, through Promeca, paid and facilitated
bribes that were paid to IMSS officials in order to secure contracts for the purchase of Orthofix
equipment. By accepting these bribes, the corrupt officials abandoned their fiduciary duties to IMSS
and the Mexican citizens served by the agency. Orthofix induced this abandonment of duty.
breached its contractual duties to IMSS by orchestrating and paying bribes to corrupt hospital
officials.
78.
was in compliance with Mexican law; namely, Articles 50 and 60 of the Law of Acquisitions, Leases
and Services of the Public Sector.
79.
This was a material representation in the contract that IMSS relied on in order to
Orthofix, through Promeca, breached the terms of the IMSS contracts by paying
Further, by bribing IMSS officials and misrepresenting that activity in its contracts
and invoicing practices, Orthofix violated Article 8 of the Mexican Civil Code, which expressly
prohibits fraud in business contracts.
IMSS prays that this Court award it all the relief to which it is entitled under law or
equity.
Respectfully submitted,
By: /s/ Mark Maney
Mark Maney
Attorney-in-Charge
Maney & Gonzlez-Flix PC
Texas Bar No. 12898200
Federal ID: 11815
700 Louisiana Street
Suite 4545
Houston, Texas 77002
Telephone: 713.806.2500
mmaney@maneylaw.com
ATTORNEYS FOR IMSS