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 (still pending) 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).
Earlier this month, Smartmatic moved to dismiss the indictment on the basis of “vindictive and selective prosecution.”
Recently, the DOJ responded to the motion and states in pertient part:
“Defendant SGO’s motion to dismiss relies on a fundamentally flawed premise and on speculative assumptions devoid of any factual or evidentiary basis. Because SGO’s prosecution is neither vindictive nor selective, its motion should be denied. SGO’s indictment came at the conclusion of an appropriate and regular process. That process was managed by career prosecutors, beginning in the previous Administration and continuing in the current Administration. It followed
the format and cadence typical of many corporate FCPA cases over the years, featuring discussions between prosecutors and counsel for the Smartmatic entities (“Smartmatic” or “SGO”) regarding the scope of criminal corporate liability, and how to resolve such liability through a pre-indictment criminal resolution.First, contrary to defendant SGO’s assertion, it is demonstrably false that the government had concluded its investigation into Smartmatic when it charged four individual defendants in August 2024. Defendant SGO knows this is false because the government and SGO engaged in regular communications and had multiple meetings before and after the Indictment against the individual defendants in an effort to seek a negotiated pre-indictment resolution. Only when those negotiations proved unfruitful did the government exercise its prosecutorial discretion and seek a superseding indictment that added SGO as a corporate defendant. In order to respond to defendant SGO’s false assertions, set forth below is a timeline of some of the relevant communications and interactions between the government and Smartmatic’s outside counsel, which unequivocally repudiates defendant SGO’s claim that “the government appeared to have concluded the investigation of 2016 events with its August 2024 indictment.”
Second, defendant SGO claims in its motion that its indictment is the product of a longrunning campaign against Smartmatic by the current Administration and certain political allies. Specifically, defendant SGO suggests that its role in the 2020 election and the defamation suit it filed against a private media company in 2021 were precipitating events leading to SGO’s prosecution, thereby purportedly demonstrating vindictiveness and discriminatory selectiveness by the government. These accusations are utterly false. The government’s investigation into the facts of this case began in 2018 and continued through 2025. Neither the 2020 U.S. election nor Smartmatic’s civil dispute with private litigants had any bearing on this prosecution. Instead, this is a case about the bribery and money laundering scheme that defendant SGO and its coconspirators allegedly engaged in vis-à-vis the 2016 Philippine election.
Because the prosecution of defendant SGO is not vindictive or selective, the motion to dismiss should be denied.”
The DOJ’s response sets forth the following timeline.
“In the months preceding and following the Indictment of the individual defendants, the government and counsel for Smartmatic engaged in sustained discussions about corporate liability and potential resolution. The process by which career prosecutors engaged in those discussions — led by the trial team with support from their supervisory chains — did not deviate from the long-established practice for corporate FCPA cases.
Following years of investigation and consistent engagement with company counsel, the government invited Smartmatic to present its views on whether and how the case should be criminally resolved consistent with the Justice Manual’s Principles of Prosecuting Business Organizations. That meeting took place in July 2024, approximately one month before the initial Indictment of the four individuals. Any experienced counsel would understand that this meeting and the content and scope of the government’s requests during this time suggested a desire by the government to move the case against Smartmatic towards a criminal disposition.
On August 8, 2024, a federal grand jury returned an Indictment against senior Smartmatic executives and a foreign official in connection with the bribery and money laundering scheme. Within one week of the Indictment, on August 15, 2024, the government wrote to SGO’s lawyers to make clear that the individual charges did not end the government’s investigation of the company and asked to discuss next steps regarding the company. The Indictment of the three Smartmatic executives in August 2024, who are alleged to have acted on behalf of Smartmatic entities, only increased the likelihood of an imposition of corporate liability in light of the principle of respondeat superior. With that awareness, Smartmatic engaged with the
government in the latter half of 2024. For example, in September and October 2024, the government requested information from Smartmatic relating to its code of business conduct, charitable donation and gift policies, and other information, and Smartmatic produced documents relating to the email accounts of defendants Piñate, Vasquez, and others, purportedly in the spirit of cooperation. The company also informed the government that two individuals had been placed on paid administrative leave pending the outcome of the criminal charges.The parties continued to discuss outstanding matters, including a video conference in November 2024, and, in December 2024, the government sent a tolling agreement extension for Smartmatic’s consideration, which the company declined to sign. The government and Smartmatic continued discussions into the new year, with a January 6, 2025, video conference, followed by additional requests from the government, and Smartmatic’s indication through counsel that it was considering “the opportunity to present additional information” to the government.
On February 10, 2025 — the same day as the President’s Executive Order relating to the enforcement of the Foreign Corrupt Practices Act (the “FCPA Executive Order”) — Smartmatic’s outside counsel presented the government with information that Smartmatic believed should factor into the government’s charging decision. The next day, at outside counsel’s request, the government agreed to provide Smartmatic with a limited reverse proffer of certain evidence. In April 2025, after an initial postponement by Smartmatic, and after the government confirmed that the matter had been reviewed under the FCPA Executive Order and — at the recommendation of the line prosecutors — approved to continue, the government provided a reverse proffer to Smartmatic’s outside counsel. The government made clear to outside counsel and Smartmatic’s General Counsel that the purpose of the proffer was to present evidence of the company’s criminal liability.
On July 2, 2025, the undersigned line prosecutors, having requested and received the necessary approvals from their offices, offered Smartmatic the terms of a criminal pre-indictment resolution in which a Smartmatic subsidiary entity would plead guilty in light of, among other things, senior executives’ commission of a significant foreign bribery scheme. Thereafter, counsel for Smartmatic appealed the offer, and between August 2025 and October 2025, made multiple presentations to Department leadership. In consultation with career prosecutors, Department leadership declined to overrule the line prosecutors’ plea offer. This decision was based on the nature and circumstances of the bribery and money laundering offenses committed by high-ranking Smartmatic executives, the company’s extremely limited cooperation and remediation, and the other factors set forth in the Justice Manual and Department of Justice policy.
Following multiple extensions of the plea offer, Smartmatic’s outside counsel offered several counter proposals. At the recommendation of the line prosecutors, Department leadership rejected those proposals as 1) inadequate given the nature and seriousness of conduct and 2) inconsistent with past practice and Department policy. On October 16, 2025, a federal grand jury returned a Superseding Indictment against the four previously indicted individuals and SGO.”
