American Indian Tribes and “Foreign Officials” Under the FCPA

One of the many challenges companies face when assessing their Foreign Corrupt Practices Act (“FCPA”) liability is determining whether a potential business partner constitutes a “foreign government official” under the FCPA.  From a definitional perspective, the FCPA is far from a model of clarity on this point.  See 15 U.S.C. § 78dd-2(h)(2)(A).

By way of example, consider the compliance sandbars companies must circumnavigate to determine whether (and when) providing something of value to “traditional authorities” (including First Nations, Métis and Inuit peoples) could impose FCPA liability.  This question often arises when U.S.-based companies are asked to make donations to American Indian tribes with whom they interact, or to do favors for individual members of a tribe.  For instance, a tribal elder may ask that a company doing business with the tribe employ a certain tribal member, or provide an internship to the chief’s son, etc.  Under such circumstances, companies might find themselves evaluating the contemplated transaction through the amorphic lens of the FCPA.

Understanding the Definitional Challenge

Going back to basics, the FCPA’s anti-bribery provisions define a “foreign official” as:

[A]ny officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization. 15 U.S.C. § 78dd-2(h)(2)(A).

Do American Indian tribes fit under this definition?  While there is little guidance on this analysis outside the United States (see this helpful article by my colleagues on that issue), there is even less in the context of  American Indian tribes, even though they possess much-discussed “sovereign status” in the United States.  This is both surprising and concerning. Continue Reading

SCOTUS Considers Challenge to DOJ’s “Bridgegate” Theory

The Supreme Court recently granted certiorari in a criminal case arising from a fraudulent scheme to cause massive gridlock at the George Washington Bridge in September 2013—otherwise known as the “Bridgegate” scandal. Bridget Anne Kelly, a staffer in then-Governor Chris Christie’s office, was convicted of wire fraud for her role in fabricating a fake traffic study and orchestrating lane reallocations as an act of political retaliation against a local mayor.

Affirming Kelly’s wire fraud conviction, the Third Circuit sustained the Government’s theory that Kelly and a fellow political operative fraudulently deprived the Port Authority of both physical property and intangible property, finding that the Port Authority has an “unquestionable” property interest in the Bridge’s traffic allocation and its public employee labor, and that the Port Authority has an intangible property interest in the public employees’ time and wages. Continue Reading

Highlights from Transnational Crime Conference: Expanding Anti-Corruption Enforcement & Cross-Border Cooperation

Last month, attorneys from around the world descended upon Buenos Aires to tango with criminal justice and anti-corruption experts at the International Bar Association’s 22nd Annual Transnational Crime Conference.  Conference highlights included remarks from distinguished members of the Argentine government, including the Minister of Justice and Human Rights, President of the Financial Information Unit, and Supreme Court President.  These officials focused their comments on criminal justice reforms in Argentina, the role of regulators and the judiciary in establishing and inspiring confidence in the rule of law, and the hope that such efforts would improve Argentina’s reputation in the global fight against graft and corruption.

Panelists and attendees also discussed similar efforts across the globe, cross-border cooperation, and collateral issues to consider when representing clients subject to international anti-corruption inquiries or enforcement actions. Of note were discussions regarding the following:

Evolving Mechanisms for Detecting and Penalizing Corruption  

  1. Increased use of money laundering statutes and administrative remedies.

Although most anti-corruption laws around the world criminalize the payment of bribes to government officials, the receipt of bribes (passive bribery) is conspicuously absent from laws like the U.S. Foreign Corrupt Practices Act (“FCPA”).  As a result, beneficiaries of bribes have traditionally escaped FCPA liability.  However, panelists noted, recent years have seen an increase in anti-money laundering prosecutions and civil administrative actions targeting profits from corrupt dealings that otherwise fall outside the reach of traditional anti-bribery paradigms.  Using money laundering statutes, U.S. prosecutors were able to prosecute officials working for Venezuela’s state-owned energy company, Petroleos de Venezuela, S.A., who accepted bribes from several U.S. executives (themselves prosecuted under the FCPA).

Panelists noted that more than €2 billion in anti-money laundering fines were assessed globally in 2018 alone, calling banks not yet penalized for money laundering issues “the exception and not the norm.”  Another new norm is the decoupling of predicate offenses (i.e., conduct generating illegal proceeds) from allegations that such proceeds were in fact “laundered,” allowing prosecutors to bring intentional and negligent money laundering cases.  Panelists also warned that lawyers were being targeted more than ever as negligent money launderers, based on the sources of client payments. Continue Reading

Corporate Execs Indicted in First-Ever “Failure to Report” Consumer Safety Case

In March 2019, the U.S. Department of Justice (DOJ) brought its “first-ever” criminal prosecution against two corporate executives under the Consumer Product Safety Act’s (CPSA) “failure to report” provision.  The two defendants, Simon Chu and Charley Loh, also face charges of wire fraud, conspiracy to commit wire fraud, conspiracy to fail to furnish information under the CPSA, and conspiracy to defraud the U.S. Consumer Product Safety Commission (CPSC). Continue Reading

Cooperation Credit Under New DOJ False Claims Act Guidance

On May 7, 2019, the Department of Justice (DOJ) released long awaited guidance on how it will evaluate and credit cooperation in False Claims Act (FCA) cases.  The new guidelines, codified in DOJ’s Justice Manual, is the department’s latest attempt to drive consistency in its handling of FCA matters.  Maximum credit, usually in the form of reduced penalties or damages, will be given to individuals and companies who:  (i) voluntarily self-disclose misconduct; (ii) cooperate in government investigations; and (iii) take proactive steps to remediate any violations.

Read the full analysis here.

Supreme Court Declines to Resolve Circuit Split Over Liability in Tender Offer Suits

Section 14(e) of the Securities Exchange Act prohibits deceptive conduct when making a tender offer to shareholders.  Recently, in Emulex Corp. v. Varjabedian, the United States Supreme Court declined to resolve a split among the circuit courts about what a plaintiff alleging a violation of Section 14(e) must prove.  As a result, the Ninth Circuit is currently the only circuit allowing Section 14(e) claims based on negligent (as opposed to intentional) misrepresentations or omissions of material facts.  This development may result in an uptick in tender offer lawsuits in that jurisdiction.

The Emulex case stemmed from the company’s merger with Avago.  As part of that merger, Avago initiated a tender offer for Emulex’s outstanding shares.  In accordance with SEC rules, Emulex filed a public statement with the SEC in which it supported Avago’s tender offer and recommended that Emulex shareholders tender their shares.  Among other things, the statement observed that Emulex shareholders would receive a premium on their stock and described financial analyses that had been undertaken to reach this conclusion.  However, Emulex’s statement omitted reference to a portion of its financial analysis that concluded the takeover premium offered for Emulex’s outstanding shares was below average for mergers involving similar companies.  A putative class of shareholders brought suit, alleging that Emulex’s statement file with the SEC violated Section 14(e) of the Securities Exchange Act by failing to include the more lackluster price analysis. Continue Reading

The Romaine Risk—Highlights from the 2019 ACI “Food Law” Summit

Imported food contaminants, potential criminal liability for allergen-related deaths, and a growing demand for hemp seed and cannabidiol (CBD) products amidst regulatory uncertainty were all topics of discussion at this year’s American Conference Institute (ACI) Advanced Summit on Food Law Regulation, Compliance, and Litigation, held in Chicago.  Representatives from the country’s largest food manufacturers, food and beverage agency regulators, and food litigation experts gathered in April to discuss recent product trends and regulatory developments in the food and beverage space.  A few highlights from the conference are discussed below. Continue Reading

DOJ Abandons “Secondary” Spoofing Case

After software developer Jitesh Thakkar’s criminal trial on “spoofing”-related charges ended in a mistrial two weeks ago, the Government determined it will not seek to retry the case.  Thakkar was originally charged with conspiracy to commit spoofing and with two counts of spoofing arising out of his company’s development of software that enabled a London-based trader to more efficiently spoof the market for E-Mini S&P 500 futures contracts.  The trial judge granted Thakkar’s mid-trial motion for a judgment of acquittal on the conspiracy charge based on the lack of evidence of any agreement between Thakkar and the London trader, but the judge allowed the spoofing counts to proceed to the jury.  The jury deadlocked 10-2 in favor of Thakkar on those charges.     

On April 23, 2019, the U.S. Department of Justice (DOJ) filed a motion to dismiss the indictment—two days before the parties were to appear for a status conference to discuss whether DOJ would seek to try Thakkar again.  The trial judge granted the motion, effectively ending the case.

This result adds to DOJ’s mixed track record in spoofing cases.  Despite the landmark conviction of Michael Coscia for spoofing, DOJ has now lost the other two spoofing cases it has taken to trial.  In 2018, a Connecticut jury acquitted Andre Flotron of conspiracy to commit commodities fraud by spoofing after prosecutorial missteps left only that charge remaining against him.  The difficulty of proving an agreement to spoof or specific knowledge of wrongdoing in cases involving spoofing suggests that DOJ may reassess its burden of proof before trying cases against secondary actors.

Novel Spoofing Case Against Software Developer Ends in Mistrial

Following a week of trial proceedings in the case of defendant Jittesh Thakkar—a software programmer indicted in February 2018 on conspiracy and aiding and abetting charges related to a spoof trading scheme—the government’s case against Thakkar ended in a mistrial.  The jurors could not reach a unanimous verdict on the two aiding-and-abetting spoofing counts charged in his indictment, after spending more than a day on deliberations.  It was reported that ten out of the twelve jurors were in favor of acquittal.

At the heart of the aiding-and-abetting case was whether Thakkar knew that software he designed for London-based “flash crash” trader Navinder Sarao would be used to spoof or otherwise manipulate the market for E-mini S&P 500 futures contracts.  As reported here last week, the government alleged that Thakkar’s software allowed Sarao to trigger a “back-of-the-book” function that kept large bids or orders he placed on one side of the market last-in-line for filling, making it easier for Sarao to cancel them once he had executed smaller, favorable trades based on the artificial price movement induced by his large orders.  Sarao made over $1 million on “spoofed” trades using the customized software, for which he had paid Thakkar’s company $24,200.

The trial judge previously acquitted Thakkar mid-trial on the charge that he conspired with Sarao to spoof the market.  During closing statements on the aiding and abetting charges, the government noted that Thakkar was a self-proclaimed trading technology “expert” who worked closely with Sarao to refine the software. However, Thakkar countered that as a computer programmer and businessman, he should not be held criminally responsible for Sarao’s illegal trading practices.

Forward at Your Own Risk – U.S. Supreme Court Expands the Scope of Rule 10(b)-5 Liability

The U.S. Supreme Court recently handed down a win for the SEC and private securities litigants, significantly broadening the scope of primary liability under Rule 10b-(5).  In Lorenzo v. SEC, the Court held that liability under Rules 10b-5(a) and (c)—which make it unlawful to employ a scheme to defraud or engage in any practice that operates as a fraud—is not limited only to those who make false or misleading statements as contemplated under sister-section Rule 10b-(5)(b), but may also extend to those who disseminate such statements made by others knowing they are false or misleading.

Background

This case arose from an SEC enforcement action brought against Francis Lorenzo, Director of Investment Banking for a New York broker-dealer.  The SEC alleged that, in connection with a $15 million debt offering, Lorenzo sent emails to prospective investors that significantly overstated the value of the investment.  It was undisputed that the emails were sent at the direction of Lorenzo’s boss, who supplied all the content and “approved” the messages.  It was also undisputed that Lorenzo knew that statements regarding the value of the investment were false or misleading.

The SEC concluded that, by knowingly sending false statements from his email account, Lorenzo directly violated SEC Rule 10b–5 and related provisions of the securities law, including Sections 10(b) of the Exchange Act of 1934 and Section 17(a)(1) of the Securities Act of 1933.  Rule 10b-5 makes it unlawful to: (a) employ a device, scheme, or artifice to defraud, (b) make an untrue statement of a material fact, or (c) engage in an act, practice, or course of business which does or would operate as a fraud or deceit in connection with the purchase or sale of securities.

Lorenzo appealed, contending he had no liability under Rule 10b–5 because under the Supreme Court’s ruling in Janus Capital Group, Inc. v. First Derivative Traders, liability for false statements was limited only to the “makers” of those statements as contemplated by Rule 10b–5(b), defined only as those with “ultimate authority” over the statements’ content and communication.  One who simply prepares or publishes a statement on behalf of another, as Lorenzo saw his role, fell outside of the scope of primary liability under Janus.  The D.C. Circuit agreed that since Lorenzo’s boss directed him to send the emails, supplied their content, and approved them for distribution, Lorenzo did not “make” the statements, and thus could not be held primarily liable for a Rule 10b-5(b) violation. But, the D.C. Circuit sustained the SEC’s finding of primary liability under Rules 10b-5(a) and (c) for knowingly disseminating statements he knew to be false, even though he did not “make” the statements himself.

The Supreme Court’s Ruling

On appeal to the Supreme Court, Lorenzo advanced two main theories, both of which the Supreme Court flatly rejected. Continue Reading

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