Checking In On The Smartmatic Action
In October 2025, Smartmatic was criminally charged with conspiracy to violate the FCPA’s anti-bribery provisions, money laundering conspiracy, and money laundering in connection with an alleged bribery scheme involving the former Chairman of the Commission on Elections of the Philippines. (See here for the prior post).
The allegations involved the same core conduct alleged in a 2024 FCPA enforcement action involving two company executives, among others.
The criminal indictment against Smartmatic was notable in that 2010 was the last time a business organization was criminally indicted for FCPA offenses (as opposed to a criminal information / complaint resolved through a plea agreement or deferred prosecution agreement; non-prosecution agreement; or declination with disgorgement).
FCPA Defendant Moves To Dismiss Indictment
In late 2023, the DOJ announced the unsealing of an indictment criminally charging: Carl Alan Zaglin (the owner of a Georgia-based manufacturer of law enforcement uniforms and accessories); Francisco Roberto Cosenza Centeno (former Executive Director of the Comité Técnico del Fideicomiso para la Administración del Fondo de Protección y Seguridad Poblacional (TASA) a Honduran governmental entity that procured goods for the Honduran National Police); and Aldo Nestor Marchena (a dual citizen of the U.S. and Peru) for their alleged participation in a scheme to pay and conceal bribes to Honduran government officials to secure contracts to provide uniforms and other goods to the Honduran National Police. (See here for the prior post).
The indictment contained allegations regarding: (i) a $4.8 million uniform contract with TASA; (ii) a $5.6 million uniform contract with TASA; (iii) a $480,000 contract for tear gas launchers and ammunition; and (iv) a bid for a $7.5 million uniform contract with TASA.
Issues To Consider From The Telefónica Venezolana Enforcement Action
This prior post went in-depth into the recent FCPA enforcement action against Telefónica Venezolana (a subsidiary of Telefonica S.A.) concerning a bribery scheme in Venezuela.
This post highlights additional issues to consider.
Timeline
Beginning in early 2020, the annual report of Telefónica S.A. (a Spanish company with shares traded in the U.S.) contained the following disclosure.
Telefónica Venezolana Resolves $85 Million Enforcement Action
Approximately ten years ago, a Venezuelan telecommunications company (a wholly-owned subsidiary of a Spanish telecommunications) allegedly bribed Venezuelan officials.
The end result is a $85 million U.S. Foreign Corrupt Practices Act enforcement action against the Venezuelan telecommunications company.
The DOJ recently announced that “Telefónica Venezolana C.A. (Telefónica Venezolana), a Venezuela-based subsidiary of Telefónica S.A. (Telefónica), a publicly traded global telecommunications operator based in Spain, will pay over $85.2 million to resolve an investigation by the Justice Department into a scheme to bribe government officials in Venezuela to receive preferential access to U.S. dollars in a currency auction.
The root cause of many FCPA enforcement is a real-world business condition and in this regard the following is relevant to the Telefónica Venezolana enforcement action.
DOJ Issues An FCPA Opinion Procedure Release
The Foreign Corrupt Practices Act when enacted directed the DOJ Attorney General to establish a procedure to provide responses to specific inquiries by those subject to the FCPA concerning conformance of their conduct with the DOJ’s “present enforcement policy.”
Pursuant to the governing regulations of the so-called DOJ Opinion Procedure Release Program, only “specified, prospective—not hypothetical—conduct” is subject to a DOJ opinion. While the DOJ’s opinion has no precedential value, its opinion that contemplated conduct conforms with the FCPA is entitled to a rebuttable presumption should an FCPA enforcement action be brought as a result of the contemplated conduct.
Recently, the DOJ issued this opinion procedure release (dated October 25, 2023). It is only the fourth FCPA opinion procedure release since 2014.