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.
However, as highlighted here , in August 2019 the court rejected the DOJ’s position and found that Claimants are victims of Och-Ziff’s crime under the MVRA and “directed the parties to submit supplemental briefing regarding how to calculate the appropriate restitution amount.”
In its ruling, the court requested further briefing on:
“(1) the value of the mining rights themselves (as opposed to the value of a working mine on the site), as of either 2006-2008 or the present day; (2) whether the court should either apportion liability among the coconspirators or make Defendant jointly and severally liable for all of Claimants’ losses under 18 U.S.C. § 3664(h); and (3) whether ‘determining complex issue of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process[.]”
Forced to brief the issue, the DOJ recently requested that the court require Och-Ziff to pay its “victims” $150 million or $188.7 million.
As previously highlighted in connection with the Africo Resources matter, while each case is factually unique, the matter is important as it may open a door to other business entities who lose out on opportunities because of the conduct of business organizations resolving an FCPA enforcement action.