This site has long followed the criminal prosecution of four former Commonwealth Edison (“ComEd”) executives and associates based on allegations of attempting to influence and rewarding the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company.
Bribery of a state politician is not ordinarily the type of conduct that results in Foreign Corrupt Practices Act issues.
However, ComEd (a majority-owned indirect subsidiary of Exelon Corp) was an issuer (as was Exelon) and the FCPA has always been a law much broader than its name suggests because of the FCPA’s books and records and internal controls provisions.
Enforcement actions involving the books and records and internal controls provisions – yet having nothing to do with foreign bribery – have long been called (for lack of a better term) non-FCPA, FCPA enforcement actions on this site.
In May 2023, a federal jury in Chicago found four former Commonwealth Edison (“ComEd”) executives and associates guilty on all counts charged including conspiring to influence and reward the former Speaker of the Illinois House of Representatives in order to assist with the passage of legislation favorable to the electric utility company, in addition to multiple bribery and record falsification charges. (See here for the DOJ release).
Various post-trial motions were denied (see here) and along the way the core bribery charges were vacated after the Supreme Court ruled in Snyder (June 2024 – see here for the prior post) and the DOJ did not seek to retry those counts.
The case proceeded to the Seventh Circuit Court of Appeals and issues on appeal raised by Anne Pramaggiore (who served as CEO of ComEd from 2012 to 2018 and later as a senior executive at an affiliate of Exelon Corp) and Michael McClain (who worked as a lobbyist and consultant for ComEd) included generally how the vacated core bribery convictions impacted the remaining criminal convictions including FCPA books and records and internal controls convictions.
Yesterday, as both Pramaggiore and McClain remain in prison, a Seventh Circuit panel heard oral arguments. (See here for the audio file).
Even though this matter is a non-FCPA, FCPA enforcement action, it is a rare instance in the FCPA’s nearly 50 years that FCPA books and records and internal controls were the subject of appellate court review.
Which make the oral arguments sort of “must listen” for any FCPA aficionado. During the 49 minute oral argument, FCPA issues are generally discussed at minutes 9-23; 29-37; and 46-end. Issues addressed include: what does “false” mean; is an omission false; is a company code of conduct an internal control; and does a defendant have to have knowledge of the FCPA provision they are charged with violating.
A few hours after the oral arguments, the Seventh Circuit granted Pramaggiore’s and McClain’s bond motions and stated: “Both Pramaggiore and McClain are entitled to release. The United States must make arrangements to release Pramaggiore and McClain from federal custody forthwith.”
The Seventh Circuit also stated that its opinion granting a new trial will be forthcoming.
