This post highlighted the recent decision by Judge Kathleen Williams (S.D. Fla). granting in part Smartmatic’s Motion to Compel Discovery in connection with its previously filed Motion to Dismiss on the basis of “vindictive and selective prosecution.” (See here for additional background on the FCPA enforcement action).
In her order, Judge Williams stated that there is “some evidence tending to support” the motion to dismiss and listed several factors including the DOJ’s dismissal of the FCPA enforcement action against former Cognizant Technology Solutions executives Gordon Coburn and Steven Schwartz as well as “the Government also elected to close FCPA investigations into multiple companies.”
Much like certain recent FCPA commentary (see here for a prior post), Judge Williams’ reference to these two factors was a bit shallow.
As highlighted in this prior post, the 2019 FCPA enforcement action against Coburn and Schwartz was actively litigated for approximately six years prior to dismissal. During this litigation process, several legal and factual flaws were apparent in the DOJ’s case.
This prior post, highlighted other instances (2011 – 2022) in which the DOJ also dismissed criminal FCPA charges.
The reference to “the Government also elected to close FCPA investigations into multiple companies” is also shallow in that, as long as the FCPA has existed, the government has elected to close FCPA investigations into companies without bringing an actual enforcement action. Numerous examples are highlighted in this prior post.
Moreover, in the past 1.5 years the DOJ has resolved criminal FCPA enforcement actions against other companies. (See here, here, and here).
Again, Judge Williams listed several factors to support her conclusion that there is “some evidence tending to support” the motion to dismiss.
However, some of the factors listed were shallow, lacked context, and lacked any meaningful discussion other than focusing on the end result (an end result that was not uncommon).
