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Former Och-Ziff Executive Cohen Criminally Charged – Including For Obstruction And Making False Statements In Connection With DOJ/SEC Investigation

cohen

As highlighted in this prior post, in January 2017 former Och-Ziff executives Michael Cohen (pictured) and Vanja Baros were civilly charged by the SEC with Foreign Corrupt Practices Act, and other, violations in connection with the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.

Recently, the DOJ unsealed criminal charges against Cohen. While some media sources have called the charges “bribery charges,” (see here for the Wall Street Journal article) this is false as Cohen was not charged with any FCPA offenses, but rather various fraud based offenses based on his role as an investment advisor. However, as detailed in this post, Cohen was also charged conspiracy to obstruct justice and making material false statements, charges at least indirectly related to the DOJ’s and SEC’s FCPA inquiry of Och-Ziff.

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On The Intersection Of Antitrust Enforcement And Corruption

intersection

Recently Roger Alford (Deputy Assistant Attorney General of the DOJ’s Antitrust Division – who until recently was a law professor at Notre Dame) delivered this speech regarding the intersection of antitrust enforcement and corruption.

Prior to highlighting the speech, this post further explores the intersection by: documenting how Congress – in enacting the FCPA – considered whether the antitrust laws adequately captured the so-called foreign corporate payments at issue; and highlighting FCPA enforcement actions which also included antitrust charges.

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Issues To Consider From The Alere Enforcement Action

Issues

This prior post went in-depth into the recent Foreign Corrupt Practices Act (and related) enforcement action against Alere and this post continues the analysis by highlighting additional issues to consider.

“Then Some” Enforcement Action

The majority of SEC FCPA enforcement actions are “just” FCPA enforcement actions. However, the Alere enforcement action was a “then some” enforcement action as the majority of the enforcement action (and indeed the bulk of the overall $13 million settlement) concerned findings of other securities laws violations regarding revenue recognition and related practices.

While not common, “then some” FCPA enforcement actions are not unheard of either.

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FCPA And Then Some As Alere Resolves SEC Enforcement Action

alere

One instance of Foreign Corrupt Practices Act scrutiny that has attracted significant investor interest over the past few years (because it occurred in the context of an M&A transaction) involved Alere Inc.

As highlighted in this previous post, the company disclosed in August 2015 that it received an SEC subpoena inquiring about its foreign business practices. Thereafter, Alere announced that it would be acquired by Abbott in a $5.8 billion transaction.

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DOJ Announces Criminal Charges And Plea Agreements In Connection With Mexican Aviation Bribery Scheme

FBO

This recent post highlighted the many Foreign Corrupt Practices Act enforcement actions involving the aviation industry.

Add another to this long list as yesterday, the DOJ announced that criminal charges “were unsealed against six individuals, all of whom have pleaded guilty for their involvement in schemes to bribe Mexican officials in order to secure aircraft maintenance and repair contracts with government-owned and controlled entities, and two for conspiring to launder the proceeds of the schemes.”

The criminal FCPA conspiracy charges were against four individuals: Daniel Perez, Kamta Ramnarine, Victor Valdez, and Douglas Ray.

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