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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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Friday Roundup

Roundup

Overhead at the town hall meeting, sentenced, investigative fees, “fake” FCPA news, fairly obvious, hook-line-and-sinker, fore, pardon me for being a stickler, ISO37001 related, and purely speculative and not credible.

It’s all here in the Friday roundup

Overhead at the Town Hall Meeting

I can’t imagine that the FCPA is a frequent topic of discussion at New England town hall meetings. But as highlighted here it was recently a topic of discussion as “the new operator of a popular ski resort in New Hampshire [Och-Ziff]  faced off against concerned residents, some of whom fear the company’s past legal troubles raise doubts about whether it was the right choice to oversee the facility.”

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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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At FCPA Sentencing, Judge Goes Off On Various Aspects Of FCPA Enforcement

Judge Garaufis

While Foreign Corrupt Practices Act enforcement is largely devoid of judicial scrutiny, sentencing of individual defendants remains a judicial function and provides a rare (and often overlooked) public glimpse of someone other than the enforcement agencies weighing in on issues relevant to FCPA enforcement.

Sentencing transcripts not only capture advocacy moments seldom publicly seen in FCPA enforcement, but also telling unscripted comments concerning FCPA enforcement.  For instance, while the enforcement agencies and others often portray bribery as a black and white issue, judges sentencing FCPA individual defendants often see shades of gray.

Several examples are highlighted in the book “The FCPA in a New Era” and another noteworthy example concerns recent remarks made by Nicholas Garaufis (Senior District Judge, E.D.N.Y. – nominated to the bench by President Clinton) in sentencing Samuel Mebiame, a Gabonese national connected to Och-Ziff who pleaded guilty to conspiracy to violate the FCPA’s anti-bribery provisions in connection with African mining projects.

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Former Och-Ziff Executives To Mount A Defense Against SEC’s FCPA (And Related) Claims

cohen

I am not suggesting that the following is a very meaningful statistic, but it is a fact: there has been more FCPA enforcement in the first week of the Trump administration than the first week of the Obama administration.

But then again “assigning” to the Trump administration yesterday’s SEC enforcement action against Michael Cohen (pictured) and Vanja Baros (former Och-Ziff executives) based on the same core conduct as the DOJ and SEC’s September 2016 enforcement action against Och-Ziff is foolish just as it is foolish to “assign” FCPA enforcement in the first months (indeed the first year) of the Obama administration to the Obama Administration.

Yesterday’s enforcement action is not surprising as it was fairly obvious (as detailed in this prior post) that the main actors in the Och-Ziff matter were Cohen and Baros (even though not specifically named in the September 2016 resolution documents).

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