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).
In March 2026, Smartmatic moved to dismiss the indictment on the basis of “vindictive and selective prosecution.”
In summary fashion, the motion stated:
“To secure the Constitution’s promise of due process, an indictment’s accusations must follow only from fair and impartial decision-making, free from improper political motives or the desire to arbitrarily punish someone the Executive Branch dislikes. But since returning to office, President Trump has openly waged a campaign of retribution against his perceived enemies – chief among them those who undermine his mantra that the 2020 election was rigged – and demanded the Department of Justice take up the sword. SGO Corporation Limited (SGO), the United Kingdom-based parent company of Smartmatic USA Corporation, is among the latest victims of this punitive and unconstitutional use of prosecutorial power. Smartmatic USA is an election technology and services company that the President’s allies and media defenders, including Fox News, have repeatedly and falsely claimed was somehow responsible for him losing the 2020 U.S. presidential election. As a result, in the years since that election, Smartmatic USA has exercised its right to hold those individuals and entities legally accountable for their deluge of defamatory statements and the attendant damage inflicted on hits business, putting it squarely in the crosshairs for retribution.
In August 2024, while President Trump and his allies were out of power, the DOJ brought charges against the individual defendants in this case but chose not to indict SGO or any Smartmatic affiliate. Fourteen months after the DOJ (correctly) chose not to prosecute SGO, and with a trial date set and pre-trial litigation under way, President Trump’s new DOJ took the exceedingly rare action of indicting the company for allegedly violating the FCPA – a step the DOJ had not taken against any company for 15 years. That charging decision directly conflicted with the Department’s new policies and was not supported by a change in the law or the evidence. Instead, the only consequential changes in this case since 2024 were the President, his DOJ, and their well-documented crusade to unconstitutionally target their perceived political enemies, like Smartmatic.
Because such as abuse of prosecutorial discretion offends the Constitution and the rule of law, this Court should dismiss the superseding indictment with prejudice. At a minimum, the Court must permit discovery as to President Trump and his political allies – many of them highly motivated defendants in the defamation cases brought by Smartmatic who face potential damages in the billions – improper involvement in the DOJ’s decision to vindictively and selectively target SGO for prosecution.”
The DOJ responded to the motion and stated in pertinent 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.”
Earlier this week Judge Kathleen Williams (S.D. Fla). granted in part SGO’s Motion to Compel Discovery in connection with the motion to dismiss.
In an order, Judge Williams stated:
“After evaluating the totality of the circumstances in this case, the Court has concluded that limited discovery regarding SGO’s Motion to Dismiss is warranted. […] In short, there is “some evidence” tending to support SGO’s Motion to Dismiss: the individual Defendants were charged over a year prior to when the Superseding Indictment against SGO was returned; for years prior to the initiation of this case and up until the Superseding Indictment was returned, SGO was cooperating with the Government; the Government charged SGO amidst a public shift away from charging defendants for similar FCPA violations; SGO brought suit against the President’s confederates prior to being charged; and the President has expressed at least some degree of animus towards SGO. “It may well be that no fire will be discovered under all the smoke, but there is enough smoke here . . . to warrant the unusual step of . . . find[ing] out how this unusual prosecution came about.”
Judge Williams ordered that “on or before November 17, 2026, the Government shall provide the Court with the following for ex parte and in camera review under seal:
a. The prosecution memoranda regarding the initial indictment in this case and the subsequent Superseding Indictment of SGO;
b. All communications, including emails, memoranda, and correspondence, between the Department of Justice – including principals and personnel in the Offices of the Attorney General, the Associate Attorney General, the Deputy Attorney General, and the Principal Deputy Attorney General – and former Acting United States Attorney Hayden O’Byrne, United States Attorney Jason Reding Quiñones, and any member of the past and present prosecution team relating to or discussing the decision to charge SGO and when to charge SGO from January 1, 2025 to October 16, 2025; and
c. Any emails sent by either former Acting United States Attorney Hayden O’Byrne or United States Attorney Jason Reding Quiñones to SGO’s former and current counsel from January 1, 2025 to October 16, 2025.
