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).
Last month, Smartmatic moved to dismiss the indictment on the basis of “vindictive and selective prosecution” (see here and here) and that motion is now fully briefed and awaits a decision by the court.
In the meantime, Smartmatic moved, and was granted, the ability to conduct pretrial depositions of three Philippine nationals who are unavailable for trial.
The motion contained the following overview of the case and prior discovery:
“Broadly speaking, the [original] Indictment alleged a scheme to bribe co-defendant Mr. Bautista, the former chairman of the Philippine Commission on Elections (“COMELEC”), to “obtain and retain” election-servicing contracts with—and “receive payment” from—COMELEC for the benefit of several companies associated with SGO. The bribery scheme alleged in the Indictment revolved around COMELEC’s contractual bidding and payment processes—a series of complex administrative activities that took place exclusively in the Philippines in 2015 and 2016. As alleged in the Indictment, a foreign joint venture comprised of several companies bid on—and was awarded—three contracts related to the May 2016 national elections in the Philippines.
[…]
Both the government and the individual Defendants who have appeared (Mr. Piñate and Mr. Vasquez), sought and obtained the Court’s authorization to take Rule 15 depositions in connection with the original Indictment. Two depositions requested by the government were taken in Taiwan, and two depositions requested by the Defendants were taken in the Philippines. The government and the Defendants agreed to the respective deposition requests, coordinated the scheduling and logistics of the depositions, and the depositions were taken in a single overseas trip in June 2025.
The witnesses whose depositions were previously taken in the Philippines by the Defendants are Julio Hernan and Rey Doma, both employees of COMELEC. The depositions focused on the processes for the consideration of bids and the award of contracts by COMELEC. Mr. Hernan and Mr. Doma were involved in the various “Bid and Awards Committees” (“BACs”) that were created for the relevant contracts.
As expected by the Defendants, Mr. Hernan’s and Mr. Doma’s deposition testimony confirmed that COMELEC’s bidding process consisted of carefully structured procedures, overseen by multiple subcommittees, each responsible for ensuring that the eventual winner met the necessary qualifications on the merits. And, crucially, both testified that the bidding and awards processes were fair and transparent and adhered to COMELEC’s principles.In October 2025, the government filed the Superseding Indictment, adding SGO as a defendant to the FCPA conspiracy (Count 1) and the money laundering counts (Counts 3, 4-6). The Superseding Indictment also made a factual pivot. By deleting several key phrases in the Superseding Indictment, the government has made clear that its case is not about the award of the contracts by COMELEC, but rather about the collection of money already owed to Smartmatic under those contracts and tax authority rulings. The original Indictment specifically alleged that the purpose of the purported bribery scheme was “to obtain and retain contracts with, and receive payment—including the releases of value added tax (‘VAT’) payments—from COMELEC … and direct business to” various Smartmatic affiliates. The details of that “business” were, in turn, alleged with specificity, including a description of the contracts, the dates they were awarded, the identities of the signatories, and their total dollar value.
In the Superseding Indictment, the government has excised the phrase “obtain and retain contracts” from the allegations in Count 1, and it has deleted its claim that the conspiracy’s purpose was to “direct business” to Smartmatic. As a result, there are no allegations that any defendant paid, offered, or promised to pay a bribe to influence the awarding of the contracts. Instead, the Superseding Indictment alleges that the purported bribery scheme aimed to “obtain and retain business”, but the only conduct described is the release of certain milestone payments and VAT payments.
SGO was not charged in the original Indictment and, accordingly, has not yet had the opportunity to take any Rule 15 depositions in support of its defenses. Moreover, to put it succinctly, in light of the focus of the original Indictment, the witnesses selected from COMELEC for the depositions taken in June 2025 focused on the process for the awarding of the contracts. In recognition of the government’s shifting theory of official action, the witnesses […] will testify about the processes that transpired after the awarding of the contracts – namely, the milestone payments and the VAT payments.”
