As highlighted in this prior post, in connection with the May 2022 Glencore FCPA enforcement action, the majority owners of Crusader Health (Ian and Laureth Hagen) petitioned the court in the underlying enforcement action to file a restitution claim under the Mandatory Victims Restitution Act (MVRA) and the Crime Victims Act on the basis that the entity was a victim of Glencore’s conduct in the Democratic Republic of Congo. The court granted the petition.
As highlighted in this prior post, Glencore acknowledged “that Crusader—and by extension, the Hagens—was harmed by the offense to which Glencore has pled guilty, and it is prepared to pay restitution in the amount of any loss directly and proximately caused by that offense.” However, Glencore disputed the amount of restitution properly owed.
Recently, the court awarded Crusader restitution of approximately $29.7 million (an amount less than the approximate $48.4 – $50.3 million Crusader sought). See U.S. v. Glencore International 2023 WL 2242469.
The decision makes for an interesting read as to the specific provisions of the MVRA, direct and proximate causation, the value of “property,” and speculative harm.
As discussed in this article,
“A man charged by the RCMP for allegedly bribing a Botswanan official has been acquitted in a case that the Canadian government had recently touted as evidence of its fight against international corruption.
The Ontario Superior Court of Justice found Damodar Arapakota, founder and former chief executive of Toronto-based Imex Systems, not guilty of a charge of bribery of a foreign public official under Canada’s Corruption of Foreign Public Officials Act. The verdict was announced in January, but reasons for the decision were only released this week.
Last year, the Canadian government highlighted the Arapakota case in an annual report to Parliament titled “Canada’s Fight Against Foreign Bribery.” The purpose of that report was to demonstrate the government’s enforcement of its anti-bribery and anti-corruption laws. Bribery of foreign officials is a form of foreign interference.
Mr. Arapakota was alleged to have given a benefit to Omponye Coach Kereteletswe, an official with the government of Botswana, by arranging and paying for a Christmas time trip to the United States for him. The trip took place between December, 2015 and January, 2016, and Mr. Arapakota maintains that Mr. Kereteletswe paid back the money before it ended.
In return, the Crown alleged, the Botswanan official helped Mr. Arapakota by providing letters confirming that the government of Botswana had cancelled a contract with another firm, and that it intended to engage Imex for various electronic services. The company provides technology services for governments.
This case is the first time a defendant charged under the Corruption of Foreign Officials Act has been acquitted by a Canadian court after being successfully defended, according to Patrick McCann, a lawyer at Fasken who, along with fellow counsel Nabila Abdul Malik, represented Mr. Arapakota. Other cases resulted in either convictions or pleas, he said.
Ontario Superior Court Justice Rita Maxwell said in her ruling that “it is possible and even probable that Mr. Arapakota arranged the U.S. trip in hopes of keeping Mr. Kereteletswe motivated to assist Imex.” But she said there was insufficient evidence that the letters represented a material or tangible economic advantage for Imex.
The first letter was confirmation of a procurement board decision in Botswana that had already been made public. Imex didn’t need the subsequent letters to include unbilled revenue in its year-end financials, Mr. McCann said.
The RCMP had no comment on the matter. Allison Donaghy, a spokesperson for the force, said only that it respects the court’s decision.
Mr. Arapakota, who lives in Mississauga, Ont., said in an interview that the charges against him have hurt his reputation and his ability to earn a living since they were laid in 2019. “People were hesitant to deal with me,” he said. “I had no income for the last three years.”
Mr. McCann said one of his concerns about the RCMP investigation is that police never travelled to Botswana as part of their probe. He said the case is a lesson for Canadian businesses and executives not only to be cautious when conducting business overseas, but also to be wary that Canada may bring a charge under the Corruption of Foreign Public Officials Act without conducing a fulsome investigation first.
The Crown has filed notice of an appeal of the decision.”
As highlighted in this prior post, in May 2019 Jose Manuel Gonzalez Testino pleaded guilty to, among other charges, one count of conspiracy to violate the Foreign Corrupt Practices Act and one count of violating the FCPA for providing things of value to Citgo Petroleum Corp. (a subsidiary of Petroleos de Venezuela S.A. – the Venezuelan state-owned oil company).
Gonzalez-Testino was scheduled to be sentenced later this month.
However, as discussed here, Gonzalez-Testino recently murdered his three year old son and then committed suicide.