I recently spent some time in the court dockets for individuals charged with Foreign Corrupt Practices Act offenses and discovered some interesting tidbits. Next week, these pages will highlight a motion to dismiss currently pending that generally escaped public attention.
In the meantime, this post concerns a rare restitution order issued in an individual FCPA enforcement requiring the defendant to pay $500,000 to a “victim.”
The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.
This FCPA Flash episode is a conversation with Moe Fodeman (who along with colleagues at Wilson Sonsini) successfully represented certain investors who were deemed “victims” of Och-Ziff’s bribery and secured a $138 million restitution order under the Mandatory Victims Restitution Act. During the podcast, Fodeman discusses the chronology leading up to the restitution claim, how (and why) the DOJ resisted “victim” status for his clients, and what impact, if any, the restitution award may have on future actions.
Agreement in Principle
As highlighted in prior posts here and here in 2016 hedge fund Och-Ziff resolved a $412 million Foreign Corrupt Practices Act enforcement action concerning improper business practices in various African countries.
As highlighted in this 2018 post, former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.
In recent years, several entities employing alleged “foreign officials” who receive bribe payments from individuals prosecuted for Foreign Corrupt Practices Act offenses have sought “victim” status under the Mandatory Victims Restitution Act.
(See here for more on the unsuccessful attempt by Instituto Constarricense de Electricidad of Costa Rica in connection with the Alcatel-Lucent FCPA enforcement action; see here for more on the unsuccessful attempt by a subsidiary of Petroleos de Venezuela, S.A. in connection with individual FCPA enforcement actions involving the entity).
In the latest attempt, Petroecuador is seeking “victim” status in connection with the FCPA enforcement action against Frank Chatburn (see here for more on the underlying enforcement action).
As highlighted in this 2018 post, in the aftermath of the 2016 Och-Ziff Foreign Corrupt Practices Act enforcement action (see here and here for prior posts) former shareholders of Canadian mining company Africo Resources Ltd. (“Claimants”) sough restitution pursuant to the Mandatory Victims Restitution Act for losses allegedly incurred as a result of Och-Ziff’s bribery of corrupt officials in the Democratic Republic of the Congo.
The DOJ opposed the request arguing, among other things, that Claimants had not show direct or proximate causation of quantifable harm from Och-Ziff’s conduct and that damages were too speculative.
