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.
“That Cognizant Was Acting In Furtherance Of Generally Applicable Government Policies Does Not Render All Of Its Actions State Actions”
As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, in early 2019 the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.
As highlighted in this prior post, in late 2022 the individuals filed motions claiming that the government outsourced its investigation to Cognizant.
Former Cognizant Executives Seek Relief – Claiming That The Government Outsourced Its Investigation To Cognizant
As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, in early 2019 the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.
The case against the former executives remains active and recently Schwartz and Coburn filed motions seeking various forms of relief claiming that the government outsourced its investigation to Cognizant.
In An FCPA Issue Of First Impression, Judge Rules That Separate E-mails In Furtherance Of The Same Alleged Bribery Scheme Are Separate “Units Of Prosecution”
As highlighted in this prior post, in connection with the Cognizant Technology Solutions Foreign Corrupt Practices Act enforcement action concerning obtaining various permits in India, the DOJ (and SEC) also charged Gordon Coburn (former President and CFO of the company) and Steven Schwartz (former Executive Vice President and Chief Legal and Corporate Affairs Officer) with various FCPA offenses.
Coburn and Schwartz are putting the government to its burden of proof and recently U.S. District Court Judge Kevin McNulty (D.N.J. – pictured) denied the defendants’ motion to dismiss. (See here). In doing so, the judge ruled on an FCPA issue of first impression – that being what is the appropriate “unit of prosecution” under the FCPA’s anti-bribery provisions. As discussed below, the judge concluded that separate e-mails – even if in connection with the same alleged bribery scheme – constitute separate violations of the FCPA’s anti-bribery provisions.
Friday Roundup
Sentenced, scrutiny alert, and payment dispute. It’s all here in the Friday roundup.
Sentenced
Previous posts here and here highlighted the FCPA and related enforcement action against Frank Chatburn (a dual United States and Ecuadorian citizen) who was criminally charged (and ultimately plead guilty) for conspiring with others for making corrupt payments to PetroEcuador officials in order to obtain and retain contracts for Galileo (described as an Ecuadorian company that provided services in the oil and gas industry) from PetroEcuador.