"Extraordinary Cooperation" in FCPA Investigation Earns Virginia Corporation a Deferred Prosecution Agreement

On Monday, June 18, 2012, DOJ announced that it had entered into a two-year Deferred Prosecution Agreement with Data Systems & Solutions LLC ("DS&S"), a company that provides design, installation, maintenance and other services at nuclear and fossil fuel power plants, to resolve violations of the Foreign Corrupt Practices Act. The company, which is based in Reston, Virginia, agreed to pay an $8.82 million criminal penalty. DOJ acknowledged DS&S’s "extraordinary cooperation" in resolving the matter.

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Rajat Gupta Convicted of Conspiracy and Insider Trading

Rajat Gupta, the former Managing Director of McKinsey & Company and board member at Goldman Sachs and Procter & Gamble, was convicted on four of six counts by a federal jury in New York today for providing nonpublic material information to Raj Rajaratnam in 2008. Specifically, Mr. Gupta was convicted of conspiring to commit insider trading and three counts of insider trading (but was acquitted on two other counts of insider trading).

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And Then There Were None ... The Last U.S. Defendant in the Carson FCPA Case Enters Into Plea Agreement

On June 14, 2012, David Edmonds, the sole remaining U.S. defendant in the Carson FCPA case entered into a plea agreement. He will plead guilty to a one-count indictment alleging a violation of the FCPA. The case has been closely watched because of a number of the interesting arguments raised the defendants, but as those motions were denied, and the June 26 trial date approached, four defendants pled guilty in a two-month period.

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Stanford Sentenced to 110 Years in Prison For His Role in Ponzi Scheme

This afternoon, Judge David Hittner sentenced R. Allen Stanford to 110 years in prison for his decades-long Ponzi scheme that bilked investors of over $7 billion. The court also imposed a personal money judgment of $5.9 billion. The sentence was less than half of what the Government requested, but given that Mr. Stanford is already 62, today's sentence means that he is destined to spend the rest of his life in prison.

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New Jersey Judge Sentences Lawyer Who Pled Guilty to a Record-Length Twelve Years For Insider Trading - Longer Than Raj Rajaratnam

On Monday, June 4, 2012, New Jersey Federal Judge Katharine Hayden sentenced Matthew Kluger (a former associate at several prominent law firms) to twelve years in prison for his role in a insider trading scheme. One of his co-conspirators, Garrett Bauer (a Wall Street trader), received a nine-year sentence. On Tuesday, June 5, 2012, Judge Hayden sentenced Kenneth Robinson, another co-conspirator (who cooperated and wore a wire to obtain evidence against Messrs. Kluger and Bauer) to 27 months in prison. As U.S. Attorney Paul Fishman pointed out, Mr. Kluger's sentence "is the longest handed out for" insider trading. Remarkably, the prison term for Mr. Kluger (who pled guilty and apparently recovered less than $1 million in the scheme) eclipsed the eleven year sentence received by Raj Rajaratnam (who did not plead guilty and earned tens of millions of dollars in his scheme).

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FCPA Cooperation: Robert Antoine Receives a Sentence Reduction in Haiti Teleco

On May 29, 2012, Florida Federal Judge Jose E. Martinez granted a Government Motion to reduce the sentence of Robert Antoine, the former director of international relations for Telecommunications D’Haiti S.A.M. ("Haiti Teleco"), the Haitian state-owned telecommunications company, from 48 months to 18 months, based on his cooperation with the Government's FCPA investigation into the Haiti Teleco matter. The Government has had its share of difficulties in FCPA cases recently (as discussed here), but this case reflects what may happen when things go well in an FCPA prosecution. The Court papers discuss the cooperation provided by Mr. Antoine both before his plea agreement and during the two trials involving three other defendants.

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The Government Moves to Dismiss Its Appeal in the Lindsey Manufacturing FCPA Case

Back on December 1, 2011, when Judge A. Howard Matz entered an order vacating the convictions and dismissing the Superseding Indictment against Lindsey Manufacturing Company, Keith Lindsey, Steve Lee in the criminal FCPA case, he noted that "Dr. Lindsey and Mr. Lee were put through a severe ordeal. … The financial costs of the investigation and trial were immense, but the emotional drubbing these individuals absorbed undoubtedly was even worse. As for [Lindsey Manufacturing], the very survival of that small, once highly-respected enterprise has been placed in jeopardy." The Government appealed that decision to the Ninth Circuit. However, now, the ordeal for the two men and their company is over – on Friday, May 25, 2012, the Government filed a Motion to Dismiss their appeal.

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New York Times Reports on SEC Database and Other Tactics Used To Help Detect Insider Trading

An article by Ben Protess and Azam Ahmed of the New York Times examined the new techniques by used by the SEC to catch those engaging in insider trading. As the article explained, the Commission "is taking its cue from criminal authorities, studying statistical formulas to trace connections, creating a powerful unit to cull tips and assign cases and even striking a deal with the Federal Bureau of Investigation to have agents embedded with the regulator." As discussed here, last month, Devin Leonard of BusinessWeek profiled Sanjay Wadhwa, a deputy chief of the SEC's market abuse group, and took a close look at the insider trading investigation of Raj Rajaratnam (and the many leads that investigation has yielded). That article and the Times piece reflect what the SEC is doing to aggressively pursue insider trading defendants.

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Haitian Foreign Official Jean Rene Duperval Sentenced to Nine Years in Prison For His Role in FCPA Scheme

On Monday, May 21, 2012, Florida Federal Judge Jose E. Martinez sentenced Jean Rene Duperval, the former director of international relations for Telecommunications D’Haiti S.A.M. ("Haiti Teleco"), the Haitian state-owned telecommunications company, to nine years in prison for his role in a scheme to launder bribes paid to him by two Miami-based telecommunications companies. The sentence is the latest in the very lengthy sentences imposed to the participants in the Haiti Teleco scheme, and marks the second sentence of a foreign official in the case – Mr. Dupreval's sentence was more than twice as long as his predecessor, Robert Antoine, who was sentenced to 48 months in prison in June 2010.

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Judge Selna To Deny Two Motions in FCPA Case Which Had Attacked DOJ's Relationship With Company That Cooperated During Investigation

In connection with a May 14, 2012 hearing, Judge James Selna has prepared Tentative Minute Orders which deny two motions in the Carson FCPA cases. In a Motion to Suppress and a Motion to Dismiss, the defendants raised issues regarding DOJ's relationship with Control Components, Inc. ("CCI"), the employer of defendants, who cooperated with the investigation and provided certain information. In addition to our discussion below, Professor Mike Koehler of The FCPA Professor Blog takes a careful look at the case (which includes copies of the tentative rulings, here and here).

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DOJ Returns $44 Million From Former CEO Joseph Nacchio To Investors of Qwest

Prosecutors and the SEC work quite vigorously to recover ill-gotten gains from those who have committed securities fraud, with the ultimate goal of compensating investors. A conviction in a criminal case or judgment in civil case brought by the SEC may result in a large number, like the $53.8 million forfeiture judgment in the criminal case and the $92 million civil judgment against Raj Rajaratnam (discussed here), but that is only the first step. A May 3, 2012 Press Release from DOJ provides some insight into this process (and how long it may take) – following a 2007 conviction of Joseph Nacchio, the former CEO of Qwest Communications International Inc., based on events which took place between 1999 and 2002, DOJ announced that it "has returned approximately $44 million to victims of [that] securities fraud scheme."

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Defendants in the Carson FCPA Case File Reply Briefs Attacking Government's Interaction With The Employer During the Latter's Internal Investigation and the Government's Conduct During Discovery

On Monday, April 30, 2012, two of the remaining defendants in the Carson FCPA case submitted Reply Briefs in support of motions that raise significant issues about the impact on the employees when a corporation conducts an internal investigation and ultimately cooperates with the Government. The briefs argued that: (1) certain statements should be suppressed because the Government offered no evidence from the participants in discussions between the corporation's counsel and DOJ prior to interviews of employees during an internal investigation (thereby failing to rebut defendants' arguments that their Fifth Amendment rights were violated); and (2) the Government's tactics during discovery violated defendants' rights by denying them the opportunity to present a complete defense. The arguments on these issues are set to be heard on May 14, 2012.

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Former Morgan Stanley Executive Pleads Guilty to Conspiring to Evade Internal Accounting Controls Under the FCPA in China, While Morgan Stanley Avoids Prosecution Due to Internal Controls

On Wednesday, April 25, 2012, DOJ announced that Garth Peterson, a former managing director for Morgan Stanley’s real estate business in China, pled guilty in federal court in Brooklyn, New York for participating in a conspiracy to evade the internal accounting controls which the company was required to maintain under the FCPA. Because Morgan Stanley had a system of internal controls designed to assure that its employees were not bribing government officials, the Government did not prosecute the company. The SEC also announced that it brought and settled a case against Mr. Peterson.

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Government's Opposition to Motion to Suppress in Carson FCPA Case Argues That Statements Made To Corporate Counsel During An Internal Investigation Do Not Violate The Employees' Fifth Amendment Rights

In a Brief filed on April 2, 2012, the Government argued that the statements by defendants in an FCPA case that were given to their employer during an internal investigation should not be suppressed because the employer's "actions were not the result of any pressure or influence from the government sufficient to convert the Company’s lawyers to state actors," and because defendants could not "show that their statements were involuntary." The Government was addressing a Motion to Suppress filed on March 5, 2012 in the Carson case in which defendants argued that because Control Components, Inc. ("CCI") had collaborated with DOJ during the investigation, it was a Government agent whom improperly compelled statements from the defendants during an internal investigation in violation of their Fifth Amendment rights. The Court has scheduled a hearing on the Motion for May 14, 2012.

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Discovery Issues in the Parallel Rajat Gupta Cases - Judge Rakoff Directs SEC To Turn Over Witness Interview Materials From the Investigation to Prosecutors For Review Under Brady and Potential Disclosure to Defendant

On March 26, 2012, Judge Jed Rakoff issued an Opinion and Order in the two related cases against Rajat Gupta, granting in part a Motion to Compel and ordering the SEC to turn over to the U.S. Attorney's Office materials relating to 44 witnesses (who were interviewed by the SEC and prosecutors jointly during the investigations of Mr. Gupta). He further ordered the prosecutors to review those memoranda and promptly turn over to the defense any material under Brady v. Maryland, 373 U.S. 83 (1963) (material exculpatory evidence to the defense – including evidence that could allow the defense to impeach the credibility of a prosecution witness). The ruling identifies another possible method (albeit a limited one) for a party seeking discovery from the SEC's investigative file).

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FCPA Sting Case: Government Dismisses Charges Against The Three Defendants Who Already Pled Guilty

On Tuesday, March 27, 2012, the Government filed a motion in the FCPA Sting Case to dismiss the charges against Jonathan M. Spiller, Haim Geri, and Daniel Alvirez, the three defendants who had previously pled guilty to conspiracy charges in the case and were awaiting sentencing. This unusual event occurred after the Court had dismissed the same conspiracy charge against other defendants in the case and the Government dropped all other charges against the other defendants. As a result, the Sting Case, which was announced in January 2010 as a "turning point" in FCPA prosecutions, will end with zero convictions.

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Haitian Foreign Official Convicted For Money Laundering Related to FCPA Violations

On Monday, March 12, 2012, a federal jury in Florida convicted Jean Rene Duperval on two counts of conspiracy to commit money laundering and 19 counts of money laundering related to an FCPA scheme involving Telecommunications D’Haiti S.A.M. ("Haiti Teleco"), the Haitian state-owned telecommunications company. Following a week-long trial, the jury took only three hours to convict Mr. Duperval, a former director of international relations for Haiti Teleco. The conviction is the latest Government prosecution related to FCPA at Haiti Teleco, and marks the second conviction of a foreign official involved in the scheme.

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Stanford Convicted on 13 of 14 Counts for His $7 Billion Ponzi Scheme

In a result that probably surprised few, Robert Allen Stanford was convicted on Tuesday, March 6, 2012 for his decades-long Ponzi scheme that bilked investors of over $7 billion. As reported by the New York Times (here), "the jury cleared Mr. Stanford of only one of several counts of wire fraud, but found him guilty of every other count of conspiracy to commit mail fraud, launder money and obstruct justice."

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Defendants in Carson FCPA Case File Two New Motions Attacking DOJ's Relationship With Their Corporation (Who Has Cooperated)

On Monday, March 5, 2012, several of the defendants in the Carson FCPA case in California filed a Motion to Dismiss and a Motion to Suppress, raising a new set of interesting issues in a case where the corporation has already settled with the Government and individual employees face charges. In both motions, the defendants raised issues regarding DOJ's relationship with Control Components, Inc. ("CCI"), the employer of defendants. In the Motion to Dismiss, defendants argued that "the impact of the cumulative impediments – unique investigation tactics preventing Defendants access" to certain evidence deprived them of their Due Process and Sixth Amendment rights, ("including the right to present a complete defense") and that "dismissal is the only appropriate remedy" for such severe prejudice. In the Motion to Suppress, defendants argued that because CCI had collaborated with DOJ during the investigation, it was a Government agent whom improperly compelled statements from the defendants during an internal investigation in violation of their Fifth Amendment rights. As a result, defendants argue that the statements should be suppressed.

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Gordon Gekko Is Working For the FBI

This week, the FBI released a Public Service Announcement starring two-time Academy Award-winning actor Michael Douglas warning viewers of the risks of securities fraud and encouraging individuals who have information regarding insider trading to contact their local FBI Office or submit a tip on line. The PSA begins with Mr. Douglas's iconic "greed-is-good" speech from the 1987 film "Wall Street," which earned him an Oscar for the role of greedy corporate executive Gordon Gekko, and is followed with a clip of the present day Mr. Douglas warning investors that "if a deal looks too good to be true, it probably is," and providing information on how you can prevent securities fraud by contacting the Bureau. Released the same week that the FBI issued its latest Financial Crimes Report to the Public (discussed here), it seems a pretty clear sign that we have not heard the last of the insider trading cases. Stephanie Figueroa of PLI's Securities Law Practice Center has a further look at the story here.

FBI Releases Its Financial Fraud Report Highlighting Corporate Fraud Cases, As Well As An Increase In Securities And Commodities Fraud Cases

On Monday, February 27, 2012, the FBI released its latest Financial Crimes Report to the Public, which provides a snapshot of the issues on which it has focused. The Bureau stated that in fiscal year 2011, corporate fraud cases resulted in 242 indictments or informations and 241 convictions. During the same period, the FBI's securities/commodities fraud cases resulted in 520 indictments or informations and 394 convictions.  According to the Bureau's Blog entry (available on DOJ's website here), the report covers the period from October 1, 2009 to September 30, 2011. It discusses the various fraud schemes, outlines emerging trends, and describes what the FBI has accomplished in these cases.

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Judge Selna Provides More Guidance in the Carson FCPA Case Regarding the Definition of Foreign Official and Instrumentality

At an in Chambers hearing on February 16, 2012, Judge James Selna issued an Order in U.S. v. Carson, addressing the jury instructions regarding the terms "foreign official" and "instrumentality." In doing so, Judge Selna rejected a number of the proposed instructions submitted by the defendants, sticking closing to the list of non-exclusive factors he identified in his prior decision on this issue.

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Three Individuals Are Sentenced For Their Involvement in the Bonny Island / TSKJ Joint Venture FCPA Case

Another chapter ended in the series of FCPA criminal prosecutions arising out of the TSKJ Joint Venture this week, when Texas federal Judge Keith P. Ellison sentenced three men for their role in the portion of the case involving Kellogg Brown & Root. On Thursday, February 23, 2012, former KBR executive, Albert "Jack" Stanley was sentenced to 30 months in jail, while Jeffrey Tesler, who controlled an entity through which payments were funneled, was sentenced to 21 months in prison. On Wednesday, February 22, 2012, Wojciech Chodan, the former Vice President of M.W. Kellogg, Ltd., received a sentence of one year unsupervised probation.

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Another Expert Network Insider Trading Case: John Kinnucan Is Charged By Prosecutors and the SEC Nearly 15 Months After He Refused To Cooperate and Wear A Wire

On February 17, 2012, both the U.S. Attorney for the Southern District of New York and the SEC announced that they had brought charges against John Kinnucan, the President of Broadband Research Corporation, for insider trading. The criminal charges allege that he tipped clients regarding three companies, while the SEC's civil case, which also named Broadband as a defendant, alleged that that he provided clients with non-public, material inside information that he obtained from insiders at one of those companies. According to CNBC, Mr. Kinnucan had been approached in November 2010 by federal agents and asked to cooperate with their investigation by wearing a wire, but refused to do so.

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Government Dismisses All Charges in FCPA Sting Case

In a Motion filed this morning, the Government moved to dismiss with prejudice the Superseding Indictment against the remaining defendants in the FCPA Sting Case. In doing so, the Government cited the two mistrials, as well as the acquittal of three defendants, and other rulings in the case.

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Portfolio Manager at Whitman Capital, LLC Charged in Insider Trading Cases Related to the Galleon Management Cases

On Friday, February 10, 2012, the U.S. Attorney for the Southern District of New York and the SEC announced charges against Douglas F. Whitman, the head portfolio manager at Whitman Capital, LLC, related to alleged insider trading. It is claimed that Mr. Whitman's friend and neighbor, Roomy Khan, provided Mr. Whitman with the same information that she provided Raj Rajaratnam of Galleon Management, who was convicted of insider trading in May 2011, sentenced to twelve years in prison and had a $92 million civil judgment imposed upon him.

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Government Dismisses Remaining Charges in O'Shea FCPA Case

On Thursday, February 9 2012, prosecutors filed a motion in federal court in Texas requesting that the remaining charges against John O'Shea be dismissed. On January 16, 2012, the Court dismissed the FCPA charges against Mr. O'Shea, leaving one count of conspiring to violate the FCPA, four counts of money laundering and one count of creating a false document to obstruct the Government's investigation. Thursday's motion stated:

In light of the Court’s prior statements and rulings, as well as the resulting collateral estoppels issues associated with the Court’s judgment of acquittal, the government hereby moves pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure to dismiss the remaining counts of the criminal Indictment against Mr. O’Shea with prejudice.

The motion was filed two days after the Government revealed that it was considering dropping charges in another FCPA case – the FCPA Sting case in Washington, DC.

Report: DOJ Is Considering Dropping Charges in the FCPA Sting Case

A story from the Blog of the Legal Times states that prosecutors "are considering whether to abandon" the charges in the FCPA Sting Case in federal court in Washington, DC. Mike Scarcella's blog entry (available here) states that prosecutor Joey Lipton reported to Judge Richard Leon at a February 7, 2012 status conference that "Assistant Attorney General Lanny Breuer and U.S. Attorney Ronald Machen Jr. are examining the continued viability of the case," and a decision on whether the cases will continue will be made by February 21, 2012.

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English Medical Device Company Smith & Nephew plc and U.S. Subsidiary Settles FCPA Investigations With the SEC and DOJ

On Monday, February 6, 2012, the SEC and DOJ resolved their respective investigations with a medical device company and its subsidiary by entering into settlements stemming from alleged bribes paid to doctors in Greece for more than a decade. The U.S. subsidiary, Smith & Nephew Inc., agreed to pay a $16.8 million fine as part of a deferred prosecution agreement with the DOJ, while the English parent company, Smith & Nephew plc, agreed to settle the SEC’s charges by paying more than $5.4 million in disgorgement and prejudgment interest.

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Jury Foreman in the FCPA Sting Case Speaks

For those readers of the blog who are litigators or follow litigation issues, today's post from Professor Mike Koehler's FCPA Professor Blog has a real treat: a guest post from the foreman of the recently concluded trial in the FCPA Sting Case. The foreman provides a detailed description of the issues considered by the jurors during their lengthy deliberations in which they (1) reached a partial verdict as to two defendants; and (2) remained deadlocked as to three defendants, resulting in a mistrial. The post provides a rare insight into the deliberations of a jury during a FCPA criminal trial.

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Hung Jury in Trial of Second Group in the FCPA Sting Cases Means Mistrial For Remaining Three Defendants

On January 31, 2012, Judge Richard Leon declared a mistrial in the trial of the second group of defendants in the FCPA Sting case when the jury was unable to reach a verdict as to John and Jeana Mushriqui and Mark Morales. The mistrial occurred the day after the jury returned a partial verdict, finding two of the defendants not guilty.  The result adds to the string of litigated FCPA cases where the Government has failed to secure (or maintain) a conviction in recent weeks.

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FCPA Sting Case - Reports Indicate Jury Has Found Two Defendants Not Guilty, But Remain Deadlocked on Remaining Three

Four separate websites have reported this afternoon that two of the defendants in the FCPA Sting or "Shot Show" case have been acquitted and Judge Richard Leon has stated that he would declare a mistrial if the jury is unable to reach a verdict as to the remaining three defendants. Specifically, C. M. Matthews and Joseph Palazzolo of the Wall Street Journal, Professor Mike Koehler of the FCPA Professor Blog, Mary Jacoby of Main Justice and Richard Cassin of the FCPA Blog all reported this afternoon that the jury found Patrick Caldwell and John Godsey not guilty, but remained hung as to John and Jeana Mushriqui and Mark Morales.

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Corporate Defendant in "Perfect Hedge" Case Settles Insider Trading Charges With SEC and Enters Into a Non-Prosecution Agreement With U.S. Attorney

On Monday, January 23, 2012, the SEC announced that Diamondback Capital Management LLC ("Diamondback"), the Stamford, Connecticut-based hedge fund named as a defendant in the SEC's insider trading case last week (as discussed here), has agreed to settle charges with the Commission. Diamondback will pay more than $9 million as part of the settlement, which must be approved by Judge Paul G. Gardephe, a federal judge in New York. Diamondback has also entered a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of New York.

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"Perfect Hedge" - Criminal and Civil Insider Trading Charges Brought Against Seven Investment Professionals

Today, federal prosecutors and the SEC named seven fund managers and analysts as defendants in an insider trading scheme based on nonpublic information about Dell’s quarterly earnings and similar inside information regarding Nvidia Corporation. The U.S. Attorney called the trading in Dell shares the "largest insider trading scheme involving single stock charged to date." Three of the individuals pled guilty and are cooperating with the Government. The SEC's lawsuit also named two Connecticut-based hedge fund firms as defendants.

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Judge Dismisses FCPA Charges Against John O'Shea

On Monday, January 16, 2012, Judge Lynn Hughes granted defendant John O'Shea's motion for acquittal in the FCPA case, dismissing the FCPA charges case against him. According to a Press Release from defense counsel, Judge Lynn Hughes "found that the Government’s chief witness, … could not tie Mr. O’Shea to the alleged crimes. The judge found that O’Shea’s conduct, including efforts to renew an ABB-Esimex contract, was reasonably explained by lawful motives." The decision by Judge Hughes marks the second loss in less than two months for the Government in cases related to the  Comisión Federal de Electricidad ("CFE") – Judge A, Howard Matz had previously vacated the guilty verdict in the Lindsey Manufacturing case, as discussed hereUPDATED (on January 19, 2012): While Judge Hughes' Order dismisses the 12 FCPA counts, the Judge has scheduled a status conference for the remaining counts (conspiracy, money laundering and creating a false document) for January 20, 2012.

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The FCPA Sting Case - Judge Leon Denies Motion For Mistrial, In Effect Ruling That Evidence Admitted Under the Now-Dismissed Conspiracy Count Did Not Cause Sufficient Prejudice to Merit a Mistrial

On Monday, January 9, 2012, Judge Richard Leon, who had already dismissed the central conspiracy count against six defendants in the FCPA Sting Case, was faced with an interesting question: if the conspiracy count was dismissed for insufficient evidence, should the trial continue when much of the evidence the Government has offered was based on the acts and statements of coconspirators who were not present at the trial? The Motion for a Mistrial filed by the defendants presently at trial argued that they were prejudiced by the evidence regarding the now-dismissed conspiracy count. Judge Leon denied the Motion, ruling that the trial will continue.

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SEC Changes Settlement Policy Impacting the "Neither-Admit-Nor-Deny" Standard in Cases With Parallel Criminal Proceedings

According to media reports, the SEC decided last week that it will no longer allow defendants who plead guilty in criminal proceedings to settle parallel civil charges with the Commission by neither admitting or denying the allegations. At the present, the policy shift applies only in those cases where there has been an admission of guilt, not in cases where there has been no plea or if there is only civil proceedings.

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Judge Denies Motion to Dismiss Based on Definition of Foreign Official in O'Shea FCPA Case

On January 3, 2012, Judge Lynn Hughes denied defendant John O'Shea's Motion to Dismiss the Indictment against him. Mr. O'Shea's Motion, which was filed in March 2011, argued that the Indictment failed to alleged that he bribed a "foreign official" because it only alleged that he bribed employees of a state-owned entity. Judge Hughes' decision marked the fifth time the argument has been rejected. The case against Mr. O'Shea is now set to go to trial on January 11, 2012.

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The Top 10 Most Intriguing Federal Securities Litigation Stories in 2011 (Part 2 of 2)

Today, the Federal Securities Litigation Blog continues its with its larger-than-usual blog entry examining the Top 10 securities litigation stories that were the most intriguing in 2011. As mentioned yesterday, like any sort of Top 10 list, not everyone will agree. Other bloggers will have their own lists with different stories. But on a personal basis, these stories that fascinated me – like a good book, I look forward to the next "chapter" in these stories in 2012.

Here's a quick headline look at the Top 5:

5. The SEC's Inspector General Reports on the Conduct of the Commission Staff.

4. Insider Trading at Galleon Management: Record-Setting Results.

3. The New Whistleblower Rules: Do I Tell Management Before I Tell The SEC?

2. The Lindsey Manufacturing Saga: The Verdict DOJ was "Fiercely Committed" to Obtaining is Vacated.

1. The Citigroup Case: Judge Rakoff's Decision and the Potential Impact on How SEC Cases Proceed.

These five stories are discussed in greater detail after the jump.

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The Top 10 Most Intriguing Federal Securities Litigation Stories in 2011 (Part 1 of 2)

Today and tomorrow, the Federal Securities Litigation Blog will take a break from discussing the most recent events and, with a larger-than-usual entry, examine the Top 10 securities litigation stories that were the most intriguing in 2011. Undoubtedly, others will be preparing similar lists and this is not intended to be a definitive or complete version. Instead, these are the stories that piqued my interest. Half of the list will be discussed today and the other half tomorrow.

Here's a quick headline look at the bottom half of the Top 10:

10. The D.C. Circuit Vacates SEC Exchange Rule 14a-11 Regarding Shareholders' Rights to Include Board Nominee on Proxy Materials.

9. The Jenkins Litigation: Settlement Negotiations in Clawback Case Collapse, But Are Ultimately Resolved.

8. The SEC's Director of the Division of Enforcement Now Has Authority To Issue Witness Immunity Orders.

7. Where is That File? The SEC Addresses Issues Related to the Destruction of Documents and Discovery Issues Relating to their Notes.

6. The FCPA Sting Case: One Hung Jury, One On-Going Trial, A Conspiracy Count Dismissed and More to Come.

These five stories are discussed in greater detail after the jump.

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The FCPA Sting Case - Judge Leon Dismisses The Central Conspiracy Count As To Six Defendants in Trial Group No. 2

On Thursday, December 22, 2011, Judge Richard Leon ruled on the Rule 29 Motions for Judgment of Acquittal in the FCPA Sting Case by dismissing Count 1 (on the grounds that there was not sufficient evidence to that the six defendants participated in the overarching conspiracy to violate the FCPA) as to all six defendants in Trial Group No. 2. In addition, Judge Leon dismissed the Government's case against defendant Stephen Giordanella in its entirety. The trial will resume on January 3, 2012 with the remaining five defendants having their opportunity to put on their defense. The rulings are considerable setback for the Government in what the Department of Justice called the first sting operation in an FCPA case.

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The Justice Department and the SEC Bring Charges Against Former Siemens Employees and Agents For FCPA Violations

On Tuesday, December 13, 2011, the Department of Justice and the SEC brought charges against a group of former employees and agents of Siemens AG for FCPA violations based on an alleged decade-long scheme to bribe senior Argentine government officials to secure, implement and enforce a $1 billion contract with the Argentine government to produce national identity cards. In the words of Assistant Attorney General Lanny Breuer, "[t]his indictment reflects our commitment to holding individuals, as well as companies, accountable for violations of the FCPA." The authorities have been undoubtedly active in the FCPA area this year against individuals, securing a sentence of record length against a telecommunications executive in one case (as discussed here), but suffering setbacks in other cases, such as the hung jury in the first of several trials in the FCPA sting case against employees of companies in the military and law enforcement products industry (discussed here) and the recent decision by Judge Matz to vacate the convictions of executives of Lindsey Manufacturing (and the company itself) (as discussed here).

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Appellate Court Upholds SEC's Assertion of Privilege Over Staff Members' Interview Notes

In a December 9, 2011 Opinion, the D.C. Circuit affirmed a lower court's decision that the SEC was not required to produce the notes of its staff members taken during an investigation of two individuals who were subsequently Government witnesses in a criminal prosecution of another individual. The Court found that notes were privileged under the work product doctrine, but did not decide whether they were protected under the deliberative process privilege. The case in another example of matters where defendants in securities fraud cases have sought the production of the SEC's taken during its investigations – as discussed here, in his insider trading case, Mark Cuban has also sought the production of, among other things, the notes of the SEC attorneys taken during the investigations.

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California Attorney Indicted For Obstructing SEC Investigation of Investment Company

On Thursday, December 8, 2011, the U.S. Attorney for the Central District of California announced that it had indicted the David Tamman, outside counsel for New Point Financial Services, of conspiring with the company's investment fund manager, who was also indicted, to obstruct an SEC investigation. The indictment alleges that that the two conspired to alter and backdate various documents, remove incriminating documents from investor files before they were produced, and provide false testimony to the SEC. Mr. Tamman joins the growing list of attorneys (such as the one discussed here) who are alleged to have taken elaborate efforts to conceal illegal activity, but end up being named as defendants in criminal cases nonetheless.

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Federal and State Authorities Announce Settlements For $148 Million With Wachovia Bank For Rigged Municipal Bond Transactions Over an 8-Year Period

On December 8, 2011, various government agencies announced that Wachovia Bank, N.A. has entered into a series of settlements with the SEC, the Department of Justice, the Office of the Comptroller of the Currency, the Internal Revenue Service, and 26 state attorneys general to pay $148 million related the bank's entry into fraudulent secret arrangements with bidding agents to rig at least 58 municipal bond reinvestment transactions in 25 states and Puerto Rico.

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A Look at Judge Matz's Final Order Dismissing the Convictions in the Lindsey Manufacturing FCPA Case For Prosecutorial Misconduct

On December 1, 2011, Judge A. Howard Matz entered an order granting the motion to dismiss filed by Lindsey Manufacturing Company, Keith Lindsey, Steve Lee in the criminal FCPA case against them. As discussed here, the Court announced its intention to do so at a hearing on November 29, 2011. In its Order, the Court said that the Government conducted a "sloppy, incomplete and notably over-zealous investigation … that was so flawed that the Government’s lawyers tried to prevent inquiry into it." The Court's decision was based, in part, on: the untruthful testimony of an FBI agent to the grand jury; the provision of false information in applications for search and seizure warrants; the improper review of e-mail communications between a defendant and her lawyer; the failure to comply with discovery obligations and other court rulings; and misrepresentations to the Court. The Court held that "the multiple acts of misconduct … undoubtedly affected the verdicts and thus substantially prejudiced" the Defendants, necessitating the decision – made with what the Court called "deep regret" – to vacate the convictions and dismiss the Superseding Indictment.

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Judge Matz To Dismiss Convictions in Lindsey Manufacturing FCPA Case For Prosecutorial Misconduct

At a hearing on November 29, 2011, Judge A. Howard Matz stated that he would be granting the motion to dismiss for prosecutorial misconduct filed by Lindsey Manufacturing Company (a privately-held company), its President Keith Lindsey, and its Vice President Steve Lee in the criminal FCPA case against them. Judge Matz prepared a tentative order which he shared with the parties and plans to issue a formal order on Wednesday, November 30, 2011. According to Edward Pettersson's article on Bloomberg.com, "[t]he judge cited government misconduct including providing false information to get a search warrant, making unauthorized searches and giving incorrect testimony to a grand jury." As a result, the May 2011 convictions of conspiracy and FCPA charges against the company and Messrs. Lindsey and Lee will be dismissed.

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Porter Wright E-Book on Insider Trading Issues Now Available

The Federal Securities Law Blog is pleased to announce its second e-Book: "Insider Trading: A Look At Some Of The Key Civil And Criminal Cases In 2011."

The last few years have seen a remarkable number of insider trading cases brought by both the SEC and federal prosecutors. In the criminal cases, many Wall Street professionals and lawyers who have been very successful will now spend years in prison. On the civil side, the SEC has pursued defendants very aggressively, although in some cases, where the defendants have had the ability to fight back, they have vigorously defended themselves. This eBook will focus on several of these cases, the events in 2011 and discuss some of the trends that have developed.

First, we will look at the criminal cases by focusing on some of the Galleon Management and the "Expert Network" cases as examples where the prosecutors pursued, tried and convicted significant Wall Street players. We also will consider the cases involving Rajat Gupta (who was also part of the Galleon Management circle) including the administrative case against him, his suit against the SEC in federal court, the dismissal of both of those actions and the subsequent indictment and civil suit against him. Finally, we will examine the recent events in the SEC's case against Mark Cuban, which is worth watching closely because he has fought the SEC every step of the way, raising a number of theories and utilizing different tactics.

The e-book is available here.

Florida Judge Sentences FCPA Defendant to a Record Fifteen Years in Jail

On Tuesday, October 25, 2011, defendants Joel Esquenazi and Carlos Rodriguez, former executives of Terra Telecommunications Corporation who were convicted in August 2011 for their roles in a conspiracy to violate the FCPA and commit money laundering, were sentenced to 15 years and 7 years in prison, respectively. With respect to Mr. Esquenazi, a Press Release from the U.S. Attorney's Office for the Southern District of Florida pointed out that "[t]his is the longest sentence ever imposed in a case involving the Foreign Corrupt Practices Act."

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Rajat Gupta Will Get His Day in Court ... Twice

On Wednesday, October 26, 2011, both the SEC and the U.S. Attorney's Office for the Southern District of New York filed charges against Rajat Gupta, the former Managing Director of McKinsey & Company and board member at Goldman Sachs and Procter & Gamble. Mr. Gupta, who previously argued that an Administrative Proceeding brought by the SEC against him was unfair because he denied a trial before a jury will now have two opportunities to challenge the charges against him in Court.

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Recent Articles Discuss Two Trends in Securities Enforcement: Increasing Sentences in Insider Trading Cases and the Possible End of An Era in Backdated Options Cases

A pair of articles appeared this week that traced trends in particular areas of securities enforcement. The Wall Street Journal presented data showing an increase in the length of sentences in insider trading cases over the last eighteen years. A second article which appeared in Corporate Counsel suggested that the SEC's settlement of a case involving back-dated options "may have symbolized the end of an era."

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Raj Rajaratnam Sentenced To Eleven Years in Prison for Insider Trading Scheme

Today, in a case closely watched on Wall Street, Judge Richard Holwell sentenced Raj Rajaratnam, the Managing Member of Galleon Management, LLC, to Eleven years in prison. Although the sentence is the longest to date for anyone involved in the Galleon Group, it fell considerably short of the lengthy sentence sought by the Government.

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Justice and the SEC Bring Charges Against Former Employees of United Commercial Bank for Concealing $65 Million in Losses During 2008 UPDATED on October 13, 2011

The SEC brought a case against Thomas Wu, the former CEO of United Commercial Bank, for misleading investors regarding the financial state of the bank during the 2008 financial crisis. Mr. Wu, who the SEC described as a "rising star in the banking industry," allegedly directed subordinates to conceal information regarding the true value of the bank's collateral and assets, understating the value by at least $65 million and causing as the United Commercial to be one of the ten largest bank failures during the recent financial crisis.

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Bloomberg Markets Magazine Details Illicit Payments By Koch Industries, Inc., Who May Become Focus of Occupy Wall Street and Occupy DC Protests

A report on Monday, October 3 from Bloomberg Markets Magazine detailed a years-long scheme by Koch Industries, Inc. to make improper payments to win contracts in six countries – payments which the company admitted "constitute violations of criminal law." The article states that the Justice Department would not confirm or deny the existence of any investigation into the activities, but such an investigation seems likely given the articles description of events that may violate the FCPA or the laws regarding the Iran Trade Embargo.

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Sentences Handed Down In Two Insider Trading Cases, Others Await Fate

On Wednesday, September 21, two defendants who were convicted of conspiracy and insider trading charges in separate trials earlier this year were sentenced in federal court in New York. Zvi Goffer, who formerly worked at with the Schottenfeld Group LLC (part of Raj Rajaratnam's Galleon Group), was sentenced to ten years in prison, while Winifred Jiau, a consultant at Primary Global Research LLC (an expert networking firm), received a four year sentence. Like many of the recent high-profile insider trading cases, the Government's evidence included wiretapped telephone conversations between the participants in both cases. DOJ and the SEC continue to vigorously pursue and punish those participating in insider trading cases.

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Two Developments Involving The Protection of Investors: SEC to Re-Establish Investment Advisory Committee, While DOJ's Inspector General Criticizes Marshal Service's Handling of Seized Madoff Assets

There were two interesting news items this week regarding what the nation's regulators are doing to protect investors – one from the SEC and the other from the Department of Justice. The SEC announced that it "is in the process of re-establishing an Investor Advisory Committee," while Commissioner Luis A. Aguilar expressed disappointment that the Committee was not being re-established sooner. Meanwhile, the U.S. Department of Justice Office of the Inspector General issued an Audit Report criticizing the Complex Asset Team of the U.S. Marshals Service for its management of complex assets, including its handling of certain assets seized from Bernard Madoff.

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Justice Department Announces Settlement With CSK Auto: $20.9 Million Fine and a Non-Prosecution Agreement In Earnings Manipulation Case

On Friday, September 9, the Department of Justice announced that it had entered into a Non-Prosecution Agreement with CSK Auto Corporation, a retailer of automotive parts and accessories which used to be publicly traded, to settle a criminal investigation into alleged securities law violations stemming from a corporate earnings manipulation and double-billing scheme. Under the terms of the agreement, CSK Auto will pay a $20.9 million penalty. The resolution of this matter is the latest in a series of matters being handled by both DOJ and the SEC regarding the events at CSK Auto.

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Prosecutors Drop Appeal of Short Sentence in Green FCPA Case

On August 23, 2011, the Government filed a Motion with Ninth Circuit Court of Appeals stating that it was dropping its appeal of the decision of District Court Judge George Wu to sentence Gerald and Patricia Green to only six months in prison following their conviction on FCPA charges. The Government had originally requested that the couple be sentenced to "a significant number of years" years, but later lowered their request to ten years. The couple has already served their six month sentences.

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FCPA Sting Case Moves Along: Government Files Its Opposition to the Post-Trial Rule 29 Motion and Court Sets Schedule For Four Eight-Week Trials in Next Ten Months

In the FCPA Sting Case, U.S. v. Goncalves, No. 09-cr-00335 (D.D.C.), which resulted in a mistrial last month for four of the 22 defendants (as discussed here), the Court has set a new schedule for the defendants, with four separate trials scheduled to begin between September 22, 2011 now and mid-May 2012. In the mean time, the Government defended its Indictment against a post-trial Rule 29 motion filed by the four defendants originally tried, arguing that the Court has already rejected the defense arguments and that the evidence at trial proved the existence of a conspiracy.

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Government's Vigorous Prosecution of FCPA Violators Continues When Jury Convicts Two Telecommunications Executives for Violations Relating to Haiti

On Friday, August 5, 2011, a Florida jury convicted Joel Esquenazi and Carlos Rodriguez, former executives of Terra Telecommunications Corporation, for their roles in a conspiracy to violate the FCPA and commit money laundering. U.S. v. Esquenazi, Case No. 09-cr-21010 (S.D. Fla. Filed Dec. 4, 2009), The convictions were the latest event in Government's aggressive prosecution of FCPA violations for bribes paid to Telecommunications D’Haiti S.A.M. ("Haiti Teleco"), a state-owned telecommunications company in Haiti.

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Hung Jury Results In Mistrial Being Declared in FCPA Sting Case

On Thursday, July 7, 2011, D.C. Federal Judge Richard Leon declared a mistrial in a criminal case against four defendants who were accused of conspiracy and FCPA violations when the jury was unable to reach an unanimous verdict on all charges. The case represented a setback for the Government, who had brought charges against 22 individuals based on a sting operation, the first of its kind to involve FCPA charges to be tried.

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Former Chairman of Mortgage Lender Taylor, Bean & Whitaker Sentenced to 30 Years in Prison For His Role In Market Crisis Case

On June 30, 2011, Lee Farkas, the former Chairman of Taylor Bean & Whitaker ("TBW"), was sentenced to 30 years in prison for his role the failure of his company and of Colonial Bank. While the sentence fell short of the Government's request for a sentence of 385 years, it is likely that the 58-year old Mr. Farkas will spend the rest of his life in jail. 

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Consultant Who Exploited Friendships With Financial Personnel at Public Companies Is Convicted For Insider Trading

On Monday, a federal jury convicted a consultant at an expert networking firm, Winifred Jiau, of one count of conspiracy and one count of securities fraud for selling inside information she obtained through social relationships with sources from the finance departments at publicly traded companies. According to the U.S. Attorney, "Wini Jiau gave new meaning to the concept of social networking. She used and exploited friends at public companies for the purpose of obtaining, and then selling, inside information."

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Prosecutors Use Wiretaps To Secure Another Insider Trading Conviction

Less than five weeks after the insider trading conviction of Raj Rajaratnam, prosecutors in New York, again using wiretapped telephone conversations, obtained a second significant conviction for insider trading, this time against Zvi Goffer and two other Wall Street professionals, who were found guilty on Monday of conspiracy and securities fraud charges.

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Judge in Carson Litigation Rules That the Question of Whether an Employee of a State-Owned Company is a "Foreign Official" is a Question for the Jury

On Wednesday, May 18, Judge James Selna in California became the latest Judge to rule on the issue of whether the FCPA extended to payments made to employees of foreign state-owned companies. Judge Selna denied defendants' motion to dismiss in U.S. v. Carson, holding that "the question of whether state-owned companies qualify as instrumentalities under the FCPA is a question of fact." As a result, the issue will be presented to the jury.

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UPDATE - Lindsey Manufacturing Seeks Dismissal of the Government's FCPA Case, Claiming Prosecutorial Misconduct

UPDATED on May 16, 2011 -- As mentioned previously, Lindsey Manufacturing Company (a privately-held company) was the first corporate defendant to be convicted after trial of FCPA charges (for conspiracy to violate the FCPA and five counts of FCPA violations based on payments to employees of the Comisión Federal de Electricidad ("CFE"), an electric utility company owned by the government of Mexico). Assistant Attorney General Lanny Breuer stated last fall that it was a "new era of FCPA enforcement." The Lindsey Manufacturing verdict and some of the arguments raised by the defense present some indication of exactly how aggressively these issues will be fought by the government and defendants alike.

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Insider Trading Case With Wiretaps Results in Raj Rajaratnam's Conviction

Today, in a case closely watched on Wall Street, a federal Jury in New York convicted Raj Rajaratnam, the Managing Member of Galleon Management, LLC, of five counts of conspiracy to commit securities fraud and nine counts of securities fraud, stemming from what prosecutors called "his involvement in the largest hedge fund insider trading scheme in history."

Prosecutors stated that Mr. Rajaratnam received non-public, material insider information through overlapping conspiracies from insiders and others at hedge funds, public companies, and investor relations firms, such as Goldman Sachs, Intel, IBM, McKinsey and others. Prosecutors argued that he then executed trades in the stock of public companies, including Goldman Sachs, Clearwire, Akamai, AMD, Intel, Polycom, and PeopleSupport. The evidence in the eight-week trial included numerous recordings of wiretapped phone calls between Mr. Rajaratnam and co-conspirators (many of whom pled guilty). According to media reports, defense counsel, who argued that Mr. Rajaratnam pieced together information from a variety of sources to reach a decision on investing, plans to appeal.

Each conspiracy conviction carries a maximum penalty of five years, while each insider trading charge carries a maximum of twenty years. Mr. Rajaratnam is scheduled to be sentenced on July 29, 2011.

Corporate Defendant Lindsey Manufacturing Tried and Convicted on FCPA Charges (Along With 3 Other Individuals)

On Tuesday, May 10, 2011, a federal jury convicted Lindsey Manufacturing Company (a privately-held company), its President Keith Lindsey, its Vice President Steve Lee and an intermediary, Angela Aguilar in an FCPA case. The charges were based on payments to employees of the Comisión Federal de Electricidad ("CFE"), an electric utility company owned by the government of Mexico, which were made in exchange for the CFE to award contracts to Lindsey Manufacturing. The case is notable for two different reasons: (1) Lindsey Manufacturing was the first corporate defendant to fully litigate FCPA charges through trial; and (2) Lindsey Manufacturing was one of the three recent cases where defendants raised the argument as to whether the FCPA extended to payments made to employees of foreign state-owned companies, an assertion which failed in this instance.  UPDATE on May 16, 2011 – Professor Michael Koehler of the FCPA Professor Blog reports that Lindsey Manufacturing was NOT the first company to litigate an FCPA case all the way through trial: "That first occurred in 1990-1991 when Harris Corporation (and certain of its executives) prevailed in an FCPA trial."  

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Former Chairman of mortgage lender Taylor, Bean & Whitaker convicted for scheme that contributed to his company's collapse and the failure of Colonial Bank

On Tuesday, April 19, 2011, in one of the first criminal trials arising out of the market crisis, a federal jury in Alexandria, Virginia convicted Lee Farkas of: one count of conspiracy to commit bank, wire and securities fraud; six counts of bank fraud; four counts of wire fraud; and three counts of securities fraud. The charges arose from Mr. Farkas' role in a $2.9 billion fraud scheme that led to the failure of Colonial Bank (which was one of the 25 largest banks in the United States in 2009), and Mr. Farkas' company, Taylor Bean & Whitaker ("TBW"), one of the largest privately held mortgage lending companies in 2009.

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Former DOJ Deputy Chief Predicts Increase in FCPA Prosecutions of Individuals and Self-Reporting By Companies

On Thursday, March 17, 2011, the Wall Street Journal published an interview (available here, log-in required) with Mark Mendelsohn, the former Deputy Chief of the Fraud Section at DOJ, whose responsibilities included enforcement of the Foreign Corrupt Practices Act ("FCPA").

Mr. Mendelsohn, who left DOJ in 2010 to join Paul Weiss, discussed the future of FCPA enforcement. Highlights of the interview included:

• "The Dodd-Frank whistleblower provision is going to significantly change the game and create large financial incentives for whistleblowers to come forward to the SEC. We're going to see even more reporting to the government both by companies looking to get ahead of the whistleblowers and by whistleblowers. It will be a real challenge for the SEC and DOJ to keep up."

• "The rise in prosecutions of individuals I think is a trend that is here to stay and will continue to grow especially as the Justice Department and the SEC have more resources at their disposal."