Jury Questionnaire And Questions
This recent post highlighted the highly unusual aspects of the DOJ’s prosecution of former Cognizant Technology Solutions executives Gordon Coburn and Steven Schwartz and questioned why – in light of President Trump’s recent Executive Order – the case is going forward.
According to the docket, the case is indeed going forward with jury selection set to begin tomorrow in U.S. District Court in New Jersey before Judge Michael Farbiarz.
The matter is believed to be just the 23rd FCPA jury trial in the statute’s nearly 48 years.
Thus, a jury questionnaire and jury questions in an FCPA trial are rather unique.
The DOJ Enforcement Action Against Former Cognizant Executives Is Highly Unusual – Why Is It Going Forward After The Executive Order?
This site has long followed the Foreign Corrupt Practices Act enforcement action against former Cognizant Technology Solutions executives Gordon Coburn and Steven Schwartz.
The DOJ criminally charged the individuals in 2019 and the trial is scheduled to begin next week in New Jersey.
This post sets forth the many reasons why the enforcement action is unusual and questions why the enforcement action is going forward despite President Trump’s Executive Order on February 10th titled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.”
What “Pause”? – DOJ Intends To Proceed To Trial On March 3rd In Long-Running Individual FCPA Action
This site has long followed the Foreign Corrupt Practices Act enforcement action against former Cognizant Technology Solutions executives Gordon Coburn and Steven Schwartz. As noted in this 2019 post, “if the defendants choose to put the DOJ/SEC to its burden of proof, disputed issues will likely focus on corrupt intent, obtain or retain business and the facilitating payments exception.”
The trial has been delayed several times for a variety of reasons. In August 2024, U.S. District Court Judge Michael Farbiarz (D.N.J.) adjourned the trial yet again to March 2025 “to preserve the integrity of the truth-seeking process” due to foreign evidence / witness issues. (See here for the prior post).
“To Preserve The Integrity Of The Truth-Seeking Process,” An FCPA Trial Is Again Adjourned
The FCPA’s extensive legislative history contains concerns about the due process of individuals charged with violating the Foreign Corrupt Practices Act.
Representative Bob Eckhardt (D-TX) was particularly concerned about this issue and he stated that if an individual is “brought to court in the United States and the witnesses are halfway across the world, it seems to me that he is at a disadvantage …”. Eckhardt likewise expressed concern about imposing a burden on an individual defendant “far away from the point where the evidence can be obtained.”
The FCPA’s legislative history also contains a report by The Association of the Bar of the City of New York expressing concern for the due process rights of individual defendants charged with violating the FCPA.
MLATs: They Are Not Just For DOJ Any More (Maybe)
Today’s post is from Sara Kropf. A shorter version of this post was published by Bloomberg News on May 14, 2024. (See here).
I’ve written before about the Department of Justice’s questionable tactics in an FCPA case against two former executives for Cognizant Technology Solutions. The two executives eventually lost their bid to suppress certain statements made during an internal investigation interview by the company. But they continue to battle DOJ. Their efforts led the trial judge to take the extraordinary step of effectively forcing DOJ to help the defense secure exculpatory overseas evidence through a mutual legal assistance treaty or MLAT.
The case is an example of how a trial judge can exercise discretion to help ensure a fair trial simply by refusing to take what DOJ lawyers say at face value. It’s also a master class in persistent lawyering; by refusing to abandon the battle to obtain this key evidence, the defense may win the war.