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DOJ Announces FCPA Enforcement Action Against Two Former SBM Offshore Executives

sbm

If you are scoring at home, in the past 48 hours the DOJ has announced FCPA enforcement actions involving 7 individuals. (See here for the prior post regarding the FCPA enforcement action earlier this week against 5 individuals associated with Rolls-Royce).

By way of comparison, as highlighted in this post, in all of 2016 8 individuals were involved in DOJ FCPA enforcement actions and in 2015 8 individuals were also involved in DOJ FCPA enforcement actions.

In other words, those predicting a slow down in FCPA enforcement in the Trump administration were ignorant to begin with, but now really need to move on to other topics.

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Relevant To The Motions To Dismiss Filed In SEC v. Cohen & Baros

relevant

Yesterday’s post went in-depth into the recent motions to dismiss filed in SEC v. Cohen & Baros (a rare instance in which the SEC is being put to its burden of proof in a Foreign Corrupt Practices Act enforcement action).

As highlighted in the post, the disputed legal issues largely center around statute of limitations and (as relevant to Baros a foreign national defendant) general personal jurisdiction issues as well as specific FCPA jurisdictional issues.

There are several previously decided cases cited in the parties’ briefs that are relevant to the issues in dispute and to get you up to speed on these issues, this post highlights those cases (all previously covered by FCPA Professor).

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Motions To Dismiss Fully Briefed In SEC v. Cohen & Baros

Judicial Decision

As highlighted in this prior post, in January 2017 the SEC filed a civil complaint against former Och-Ziff executives Michael Cohen and Vanja Baros alleging the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff.

The prior post noted that the defendants would be mounting a defense and further noted that the SEC is rarely put to its burden of proof in FCPA enforcement actions (corporate or individual). Indeed, the SEC has never prevailed in FCPA history when put to its ultimate burden of proof.

Late last week, the briefing on the motions to dismiss appeared (all at once) on the court’s docket and this post summarizes the disputed issues which largely center on statute of limitations issues and (as relevant to Baros, a foreign national defendant) general jurisdiction issues as well as FCPA specific jurisdiction issues).

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Firtash Files Motion To Dismiss DOJ FCPA And Related Charges Brought In 2014

firtash

As highlighted in this prior post, in April 2014 the DOJ announced the unsealing of a criminal indictment charging six individuals “with participating in an alleged international racketeering conspiracy involving bribes of state and central government officials in India to allow the mining of titanium minerals.”

Among those charged was Dmitry Firtash, a high-profile Ukrainian businessman.

Prior to the April 2014 unsealed indictment, Firtash was arrested in Austria and thereafter paid $174 million to post bail. Responding to the U.S. criminal charges, as noted in this prior post, Firtash released a video which insisted he is an innocent party caught at the center of a “battlefield for the two biggest global players of Russia and the USA.”

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Second Circuit Hears Oral Argument In U.S. v. Hoskins

Judicial Decision

Judicial scrutiny of Foreign Corrupt Practices Act enforcement is rare. Appellate court judicial scrutiny even more rare. Listening to appellate court oral arguments in an FCPA appeal, let’s just say you can count those instances on one hand and have a couple of fingers left over.

Last week the Second Circuit heard oral argument in U.S. v. Hoskins and you can listen to the arguments here.

The issue before the court, as stated in the DOJ’s brief, is as follows.

“Whether a foreign person (who does not reside in the United States) can be liable for conspiring or aiding and abetting a U.S. company to violate the Foreign Corrupt Practices Act if that individual is not in the categories of principal persons covered in the statute.”

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