Under the heading “Impactful Enforcement,” the release states:

“Enforcement actions filed in fiscal year 2026 demonstrate the Division’s continued commitment to rigorous, effective enforcement that focuses on serious and consequential violations of the federal securities laws—including fraud, market manipulation, insider trading, failures and misconduct by gatekeepers, and violations that compromise the integrity of disclosures and financial reporting. The cases emphasize the nature and severity of misconduct, magnitude of investor harm, and pursuit of meaningful remedies. Two-thirds of all standalone enforcement actions filed in fiscal year 2026 included charges against at least one individual, reflecting the Division’s continued commitment to maximizing deterrence and holding wrongdoers accountable.”

In fiscal year 2026, the Commission filed 348 enforcement actions, including 235 standalone actions and 113 “follow-on” administrative proceedings that sought to bar or suspend individuals from participating in certain securities markets activities based on criminal convictions, civil injunctions, or other qualifying orders. The Commission also instituted 13 trading suspensions in response to suspected manipulation involving the securities of Asia-based issuers.

In addition, the Commission obtained orders for monetary relief totaling $1.095 billion, comprised of $752 million in disgorgement and prejudgment interest and $343 million in civil penalties, with $235 million of the disgorgement ordered deemed satisfied by a court in a separate non-SEC action. The SEC also returned approximately $731 million to more than 250,000 harmed investors.”

As sure as dogs bark, and similar to other instances in which a government enforcement agency releases enforcement data, some are complaining that there is “not enough” enforcement and/or that enforcement is down compared to certain prior years.

There is nothing inherently wrong with such reactions, but they do gloss over the important question of “how much enforcement should there be?”

This issue was discussed in this recent post in terms of SEC FCPA enforcement.

Most reasonable minds would seem to agree that enforcement numbers alone do not tell the full story of whether laws are successful and/or whether a government agency is effectively filling its role.

But still, some people want more, how much more is often not discussed, nor is “where” the how much should come from actually identified. On this later point, some seem to suggest or infer that every media report or instance of commentary about a potential legal violation therefore means that a legal violation has indeed occurred.

When pressed for specifics about just how much enforcement they think there should be, there is often silence, and diversion to other issues.

In any event, in the SEC release SEC Chairman Paul Atkins stated:

“The success of the SEC’s enforcement program is ultimately measured by how effectively it advances the SEC’s mission, protects investors, holds wrongdoers accountable, and strengthens confidence in our markets. Enforcement actions and financial remedies are important measures of activity, but they are not the only or most telling measures. Our responsibility is to apply the law fairly and consistently and ensure that our enforcement efforts advance the Commission’s mission. I commend the staff for their dedication to an effective, disciplined enforcement program that serves the investing public.”

David Woodcock (Director of the SEC’s Division of Enforcement) stated:

“Our focus is on conducting rigorous investigations, pursuing consequential misconduct, and achieving meaningful outcomes for investors. During the fiscal year, we reviewed our investigative docket, strengthened our investigative capabilities, and launched several new initiatives that will position the Division even more strongly for the future. These efforts have resulted in an enforcement program that is more focused, effective, and prepared to address both longstanding and emerging threats to our markets.”

As sure as dogs bark, some commentators pounced suggesting that a “new chapter of FCPA enforcement” has begun as California (and perhaps other states)  may become a “new sheriff in town” and bring FCPA-related enforcement actions. (It is sometimes amusing to look back at certain commentary isn’t it).

As noted here, it was all a bit strange and the challenge was issued (and still remains) for anyone to identify any “FCPA-like” enforcement action ever brought by the Attorney General of California or any state for that matter.

Attorney General Bonta has struck again issuing this Legal Alert titled “Alert to Businesses on Violations of Federal Anti-Corruption Laws.”

It begins:

“The Attorney General issues this alert to remind businesses operating in California that it is illegal to pay bribes or prohibited gratuities to federal officials to obtain or retain business. Federal laws prohibiting bribery, including 18 U.S. Code § 201, et seq., remain binding federal law, regardless of the priorities and behavior of the current federal administration, and violations of those laws are actionable under California’s Unfair Competition Law (UCL).

[…]

The Attorney General emphasizes the need for all businesses and individuals to continue complying with all applicable laws, including federal bribery laws, regardless of the federal administration’s conduct or priorities.”

In this press release, Bonta states:

“Despite the tone from the top of the Trump Administration, corruption remains illegal. […] I’m reminding businesses in California that bribing federal officials is illegal under California law. Corruption is corrosive to democracy. Our great nation and the Golden State do not thrive on corrupt attempts to profit from government power, and we do not intend to start now — corruption is still illegal and will not be tolerated.”

A recent example, in the aftermath of last week’s elections, was the hope that the “next administration can announce the immediate reinforcement of tools like … the FCPA.” (See here).

Set forth below is an update to a post previously published approximately six weeks ago which provided a brief overview of FCPA enforcement during the second Trump administration.

It is true, that on February 10, 2025 President Trump signed an Executive Order Titled “Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security.” As highlighted in this post, several of the substantive issues discussed in the Executive Order had been festering in the FCPA space (and openly discussed by politicians in both parties) for approximately 15-20 years prior.

The “pause” lasted a brief 118 days, during which certain aspects of FCPA or related enforcement actually continued (see here, here, here, here, here).

Since the “pause” ended in mid-June 2025, there have been several FCPA enforcement actions against business organizations or individuals and other FCPA or related developments.

In July 2025, the DOJ “defended” its positions in responding to a motion to dismiss filed by Carl Zaglin in a pending FCPA (and related) enforcement action concerning an alleged bribery scheme in Honduras. (See here). In September 2025, Zaglin was found guilty at trial. In December 2025, Zaglin was sentenced

In August 2025, Liberty Mutual resolved a $4.7 million FCPA enforcement action concerning conduct in India.

In August 2025, the DOJ criminally charged Ramon Alexandro Rovirosa Martinez and Mario Alberto Avila Lizarraga in connection with an alleged bribery scheme in Mexico. In December 2025, Roviorsa was found guilty at trial, post trial briefs were filed, and in April 2026 a federal court judge dismissed the case. In May 2026, the DOJ filed a notice of appeal and in September 2026 the DOJ filed its appellate brief.

In September 2025, a Nigerian “foreign official” was found guilty at trial in the U.S. of various criminal offenses in connection with bribery schemes.

In September 2025, Vikas Sagar was sentenced in connection with a pending FCPA enforcement action.

In September 2025, Smartmatic was criminally charged with FCPA and related offenses in connection with alleged bribery scheme in the Philippines and since then the DOJ has continued to actively prosecute the case.

In October 2025, Carlos Leopoldo Alvelais Alarcon pleaded guilty to FCPA offenses in connection with a bribery scheme in Mexico and he was sentenced in July 2026. Also in July 2026, and in connection with the same core conduct, Scoular resolved a $10.2 million FCPA enforcement action.

In November 2025, Millicom International Cellular S.A. and its subsidiary Comcel resolved a $118 million FCPA enforcement action in connection with a bribery scheme in Guatemala.

In December 2025, Glen Oztemel was sentenced in connection with an FCPA enforcement action involving conduct in Brazil. Oztemel has appealed to an appellate court and the DOJ has responded.

In February 2026, Charles Hunter Hobson was found guilty at trial in an FCPA enforcement action concerning an alleged bribery Scheme in Egypt. Post trial motions remain pending and the DOJ has objected to the motions.

In March 2026, the DOJ announced an FCPA enforcement action against David Ferrera and Marc Tilman in connection with an alleged bribery scheme in France and the DOJ continues to actively prosecute the case. Also in March 2026, and in connection with the same core action, Balt resolved a $1.2 million FCPA enforcement action.

In March 2026, the DOJ criminally charged Alfonso Wilson in connection with an bribery scheme in Mexico and he later pleaded guilty. In April 2026, in connection with the same core action, the DOJ unsealed a related FCPA enforcement action against Diego Bergonzi.

In April 2026 the DOJ filed a civil forfeiture action alleging that a U.S. defense contractor bribed a Kurdish official in connection with jet fuel contracts.

In June 2026, Abraham Cigarroa Cervantes pleaded guilty to FCPA offenses in connection with a bribery scheme in Brazil.

In August 2026, Asante Berko (a former Executive Director of Goldman Sachs International) was convicted by a jury of FCPA and related offenses in connection with a Ghana bribery scheme after a trial in New York. In October 2026, the judge denied Berko’s motion for aquittal and a new trial.

In September 2026, U.S. Marshals took custody of Jald Jensen (a former BizJet executive who was criminally charged with FCPA offenses in 2013) after evading law enforcement in Panama. In October 2026, Jensen pleaded pleaded guilty in the N.D. of Oklahoma to conspiracy to violate the FCPA’s anti-bribery provisions.

In September 2026, U.S. District Judge Eric Vitaliano (E.D. N.Y) sentenced Javier Aguilar (a former employee of Vitol Inc.) to four years in prison and also ordered him to pay approximately $7.13 million in criminal forfeiture and a $100,000 fine after Aguilar was previously found guilty at trial in 2024 and plead guilty to other FCPA charges.

In October 2026, in connection with the SEC’s FCPA enforcement action against Cyril Sebastien Dominique Cabanes (a former member of the board of directors of Azure Power Global Limited) the SEC stated in a status report filed with the court that it has “been engaging in discussions with representatives of the Defendant regarding a possible resolution of the matter.”

In October 2026, Charles Finkel (a former executive of Sicpa – a Swiss technology company which provides governments with banknote security inks and secured identification, traceability and authentication solutions) was charged in a criminal information with conspiracy to violate the FCPA’s anti-bribery provisions in connection with an alleged bribery scheme in Brazil (original charges were filed in 2022). In November 2026, Finkel was ordered to pay a $5 million judgment in advance of his sentencing.

In October 2026, the DOJ announced the arrest of Alvaro Pulido Vargas who was previously charged with, among other things, laundering the proceeds of violations of the FCPA in connection with a scheme to pay bribes to take advantage of Venezuela’s government controlled-exchange rate.

In October 2022, Charles Finkel was charged in a criminal complaint filed in the S.D. of New York with Foreign Corrupt Practices Act violations in connection with an alleged bribery scheme in Brazil.

In October 2022, Finkel was arrested and appeared before a judge and released on bail. The judge issued an order directing that filings and docket entries be filed under seal and the case had remained under seal for over four years with numerous continuances filed.

On October 15, 2026, the DOJ made a filing in the case indicating that it and defense counsel were in engaged in discussions concerning a possible disposition of the case and that the parties submitted a notice of intent to waive indictment and file a criminal information.

On October 21, 2026 a four page information was filed charging Finkel with one count of conspiracy to violate the FCPA’s anti-bribery provisions.

The information alleged in pertinent part:

“On or about December 18, 2008, the Casa da Moeda do Brasil (the “CMB”), a department or agency of the Brazilian government, entered into a five-year contract (the “2008 Contract”) with a Brazilian subsidiary of Company-1 (“Subsidiary-1”), worth approximately $1.4 billion. Pursuant to the 2008 Contract, Subsidiary-1 pledged to implement and service a system to track and tax beverages for the Brazilian government called “SICOBE.” The 2008 Contract was signed by, among others, Finkel on behalf of Subsidiary-1.

In or about 2009, a close relative of an official of the Receita Federal of Brazil (“RFB”) who participated in the selection of Subsidiary-1 for the 2008 Contract (“Official-1”) incorporated a company identified as a consulting company (“Consulting Company-1”) for the benefit of Official-1.

According to the information, Finkel and others “agreed to pay and offer money and other things of value to foreign officials in Brazil, including an official of the Receita Federal of Brazil (“RFB”) (“Official-1”), to obtain and retain business, secure an improper advantage, and direct business to a Swiss company (together with its subsidiaries and affiliates, “Company-1”) and others, including while Finkel worked for an affiliate of Company-1.

The information alleged the following overt acts in furtherance of the conspsiracy.

“On or about June 12, 2009, FINKEL entered into a contract (the “Finkel Contract”) in New York, New York, on behalf of a company (“Finkel Company-1”) with Consulting Company-1, which provided, among other things, that Consulting Company-1 would provide purported consulting services to Finkel Company-1, and designated a specific financial institution headquartered in New York, New York (“Bank-1”) to be used for payments from Finkel Company-1 to Consulting Company-1.

On or about December 4, 2009, Finkel Company-1 received a wire from Company-1 in the approximate amount of $2,373,789.46 with the payment detail “COMMISSION SICOBE+SCORPIOS.” The wire was deposited to a bank account of Finkel Company-1 (“Finkel Company-1 Account”) at Bank-1.

On or about December 7, 2009, Finkel Company-1 sent approximately $125,000 from Finkel Company-1 Account to Consulting Company-1.

On or about June 5, 2015, Finkel Company-1 Account received a wire from Company-1 in the amount of approximately $2,357,253.06.

On or about the same day, June 5, 2015, Finkel Company-1 Account sent approximately $177,000 to Consulting Company-1.

On October 21, 2026, Finkel pleaded guilty to conspiracy to violate the FCPA’s anti-bribery provisions.

Recently, Judge Jesse Furman (S.D.N.Y.) signed off on a consent order in which Finkel consented to “the entry of a money judgment in the amount of $14,848,685 … representing the amount of proceeds traceable to the offense charged … that the Defendant personally obtained.” (The Money Judgement).

The order states that Finkel shall make a payment of $5 million and that “the Government shall deem the Money Judgment to be fully satisfied.”

Finkel’s sentencing is currently scheduled for February 10, 2027.

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).

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.

The guidance generated a substantial amount of buzz, but the festive coverage soon subsided as the guidance grew older.

Yet, on this fourteenth anniversary of the FCPA Guidance, it is useful to take a look back.

As highlighted in this prior post, the 2012 FCPA guidance was a long-time coming to say the least.

For instance, in the 1988 FCPA amendments, Congress encouraged the DOJ to issue FCPA guidance.

The DOJ refused.

In 2002, the OECD encouraged the DOJ to issue FCPA guidance.

The DOJ refused.

In 2010, the OECD again encouraged the DOJ to issue FCPA guidance.

The DOJ refused.

In the aftermath of the November 2010 Senate FCPA hearing the DOJ was again encouraged to issue FCPA guidance.

The DOJ refused.

It was only after the FCPA reform movement gained steam in 2011 that the DOJ made the political move in announcing that FCPA guidance would be forthcoming.

Tellingly, actual issuance of the guidance took over one year and occurred a few days after the 2012 elections.  For more on the above chronology of events, see the article “Grading the FCPA Guidance.”

As discussed in this 2012 post, there was little new information in the FCPA Guidance to those previously knowledgeable about the FCPA and its enforcement.

Yet, to those persuaded by non-lawyer journalist coverage of FCPA topics and/or FCPA Inc. participants seeking convenient hooks to market FCPA compliance services, the guidance was indeed “new.”

Sure, the FCPA Guidance was a useful document to the extent it captured in one document the DOJ and SEC’s views on the FCPA and related topics. But that is all the guidance did.

Criticism of the FCPA Guidance was widespread, including by former high-ranking DOJ officials. (See this prior post rounding up approximately 50 law firm client alerts, etc. regarding the guidance).  For instance, the former chief of the DOJ fraud section stated that the guidance was “more of a scrapbook of past DOJ and SEC successes than a guide book for companies who care about playing by the rules.” (See also this prior post highlighting a former Deputy Attorney General’s views on the guidance.)

Indeed, the FCPA Guidance did not represent the “law,” but rather DOJ and SEC interpretations of the law and as highlighted in this article the guidance was not a well-balanced portrayal of the FCPA as it was replete with selective information, half-truths, and, worse information that was demonstratively false.

The passage of time further demonstrated this point as the Supreme Court and appellate courts disagreed with positions advanced in the guidance.

Has anything really changed in the fourteen years since the FCPA Guidance?

As far back as 1982 it was recognized in the FCPA context that the United States should be a nation of laws, not a nation of men and women issuing non-binding guidance.

The 2012 FCPA guidance was just that – men and women issuing non-binding guidance.

The April 2016 DOJ FCPA Pilot Program was just that – men and women issuing non-binding guidance.

The November 2017 DOJ FCPA Corporate Enforcement Policy (CEP) was just that – men and women issuing non-binding guidance.

Indeed, just as the men and women who authored the 2012 guidance soon left the government, the men and women who drafted the FCPA Pilot Program and CEP soon left the government.

And so it goes.

But wait, a Second Edition of the FCPA Guidance was released in 2020 (see here).

However, like the First Edition of the FCPA Guidance in 2012, the Second Edition also contained several false statements, half-court truths and was full of selective information. (See here).

And what about the three identified authors of the Second Edition of the FCPA Guidance?

You guessed it, soon authoring the guidance they all left the government.

And so it goes.

And then in June 2025, the DOJ released a policy memo titled “Guidelines for Investigations and Enforcement of the Foreign Corrupt Practices Act” – yet again men and women issuing non-binding guidance.

As highlighted in prior posts here and here, many of the topics discussed in the Guidelines were not new, but had been happening in connection with FCPA enforcement for many years.

And so it goes … until the next iteration of FCPA Guidance.

In 2024, the DOJ criminally charged various individuals in connection with an alleged Indian bribery scheme. (See here for the prior post).

In mid-August, Judge Nicholas Garaufis (E.D.N.Y.) – after much back and forth with the DOJ – granted the DOJ’s motion to dismiss various non-FCPA fraud charges against certain defendants.

However, Judge Garaufis denied the motion to dismiss FCPA [Count One] and obstruction charges [Count Five] against certain other defendants (see here for the prior post) while noting “the court’s conclusion does not mean that additional evidence to support […] proffered reason to dismiss does not exist. It means only that the factual support that McCotter has provided is not sufficient.”

The back and forth continued (see here) and on September 3rd Judge Garaufis again denied the DOJ’s motion to dismiss FCPA and obstruction charges against certain other defendants. (See here).

In late September, the DOJ filed a petition in the Second Circuit requesting “that the Court swiftly issue a writ of mandamus directing [Judge Garaufis] to grant the government’s motion to dismiss the remaining counts of the indictment with prejudice.”

The petition presented the following issue: “Whether the district court exceeded its authority under the Constitution and Federal Rule of Criminal Procedure 48(a) by denying the government’s unopposed motion to dismiss with prejudice the indictment against five defendants.”

In summary fashion, the DOJ argued:

“This case was indicted in 2024, but no defendant has ever appeared. Exercising its power under Article II of the Constitution, the Executive Branch decided not to prosecute this case further and thus moved to dismiss the pending charges with prejudice under Federal Rule of Criminal Procedure 48(a), which requires only “leave of court.” The defendants consented to that relief.

Ordinarily, that would be the end of the matter. Given that the Executive’s prosecutorial power arises from the Constitution, only another provision of the Constitution could limit it—e.g., a defendant’s due process rights—but here all defendants readily consented, and thus there could be no countervailing constitutional interest. In such cases, courts lack discretion to force the government to proceed on charges it does not wish to pursue, nor can the courts demand that the government waive applicable privileges and disclose its confidential decisionmaking to justify dismissal.

Over a period of months, however, the district court in this case has repeatedly disregarded those limitations. At the outset, it refused to grant the Rule 48(a) motion unless the government provided detailed reasons the court deemed sufficient to justify dismissal. Although the government was under no obligation to provide this privileged information, it nonetheless did so: it explained, in a lengthy filing, that a senior Justice Department official—after consulting with colleagues across the Department—determined that the prosecution was not consistent with Department policy and presented factual, diplomatic, legal, and practical problems that warranted dismissal.

In a lengthy order, the district court agreed those were the actual, bona fide reasons for seeking dismissal—but then effectively appointed itself a super-prosecutor and proceeded to disagree with almost every single basis, even ones founded on prosecutorial discretion and concerns about international relations. The court ultimately, and very grudgingly, dismissed three charges—but refused to grant the Rule 48(a) motion as to five defendants and two counts, insisting that even more internal, confidential information was necessary. The court also peppered its order with unfounded attacks on the Department, which in truth had given extraordinary process to the determination to drop this case.

The government then repeatedly filed detailed explanations, including a sworn statement from the number-two-ranking official in the entire Department of Justice interpreting the Department’s own pre-existing prosecutorial priorities memorandum—yet the district court proceeded to reject those bases, too.

As a result, after months of efforts by the government, the district court ultimately issued an order denying the motion to dismiss the remaining charges. The district court went so far as to suggest that the government would have to provide “expert reports” to justify an unopposed motion dismissing these criminal charges. The government and the district court have profoundly different views on the nature of Rule 48 and the constitutional role of a district judge, leading to this impasse that can be resolved only by a higher court.

It appears that no appellate court has ever upheld a district court’s refusal to grant a Rule 48(a) motion. This Court should not be the first. As other circuits have ruled in similar circumstances, mandamus is necessary to remedy the district court’s dangerous and unconstitutional arrogation of executive power.”

Recently, Judge Garaufis responded and his amicus brief states:

“Mandamus is inappropriate where, as here, the District Court’s work is unfinished. The Government’s desire for hastier resolution and fewer questions does not warrant mandamus, particularly on an incomplete record replete with statements contradicted by the Indictment or other record evidence about which the District Court was obligated to inquire.”

In pertinent part, the brief states (various internal citations omitted):

“In its most recent Order, the District Court expressly encouraged further briefing on the remaining two counts. The Court explained that it was not questioning the Government’s authority to dismiss or the validity of its reasons, but rather was seeking clarification regarding the contradictions between the proffered reasons and the record, including the allegations in the Indictment. The District Court made clear that just one uncontradicted reason per count would suffice to justify dismissal. Thus, the Government has not established that it has “no other adequate means to attain the relief [it] desires.” “This requirement is generally unsatisfied where [] the district court has not yet foreclosed the relief sought in the petition.”

[…]

The Government objects to the District Court’s suggestion that one way to provide a reliable basis for dismissal of the FCPA count might be the provision of expert reports counsel had submitted to the Government addressing legal problems with the alleged bribery scheme. But this was a suggestion, not a mandate.

[…]

The Government has identified no prejudice from permitting the District Court to finish its work except that “five defendants remain in limbo.” No one is in custody; there is no record of any efforts made, at any point, to extradite any Defendant; and even if a Defendant had been arrested, the Supreme Court has held that the burdens of litigation, even for criminal defendants, are not a sufficient basis for the writ of mandamus.  Not even four months elapsed from the Government’s filing of its initial motion for dismissal to the District Court’s September 3 order denying the motion without prejudice as to two counts and requesting further information. By contrast, 19 months elapsed between the issuance of the Indictment and the Government’s filing of the motion to dismiss.

[…]

The Executive can dismiss an indictment for almost any reason, but when it offers reasons that make no sense or are contradicted by the factual support the Government itself provides, the Court, before granting dismissal, has both the authority and the duty to request further information.

[…]

The Government cannot meet its burden of showing it has a clear and indisputable right to an order prohibiting the District Court from asking further questions in the Rule 48(a) context, at least not on this record, where the Government repeatedly volunteered facially implausible and contradictory reasons for dismissing the Indictment. The incongruity between the Government’s proffered rationales for dismissal of Counts One and Five and the record—largely facts alleged in the Indictment itself—necessitated the District Court to continue to probe whether “[w]hat was provided here was more of a distraction” than a legitimate explanation.

First, of course, there were the “general considerations” adduced by the Government, such as many of the actions and individuals being “foreign,” a fact that would apply in most FCPA cases and is not among the considerations detailed in the Blanche Memorandum.

The charge-specific reasons for dismissal of the two remaining counts were similarly concerning. For example, both on mandamus and before the District Court, the Government asserts that India has already investigated the allegations underlying the FCPA count, but the documents offered by the Government regarding investigations by India state that no investigation was done and that the allegations at issue were different from those in the Indictment. The Government did not need to provide proof of investigations in India, but it chose to do so, and that proof contradicted its own assertion. The District Court could not have ignored those contradictions. Similarly, while the Court did not ask the Government to explain whether the FCPA count was consistent with current prosecutorial priorities, the Government chose to do so, and its opinion—that the alleged $250 million bribery scheme, for example, is not sufficiently “egregious”—was mystifying.

[…]

On such a record, not only Rule 48(a), but the Court’s inherent supervisory authority—to ensure that the parties before it are not presenting misleading information—provides authority for further inquiry. A contrary ruling would invite parties to mislead courts.”

Jald Jensen (a Sales Manager at BizJet International Sales and Support Inc. – a Tulsa, Oklahoma based provider of aircraft maintenance, repair and overhaul services) was among a group of individuals criminally charged with FCPA offenses in connection with the same core conduct.

Jensen evaded law enforcement for approximately thirteen years, but as highlighted in this recent post was arrested earlier this year in Panama and extradited to the U.S.

Last week, Jensen pleaded guilty in the N.D. of Oklahoma to conspiracy to violate the FCPA’s anti-bribery provisions.

As stated in this DOJ release:

“In his role as a sales manager, Jensen bribed foreign officials with authority and influence over contract awards and conspired with others to unlawfully direct business to BizJet. Jensen then conspired with others to conceal and funnel money to the foreign officials from various bank accounts throughout the United States, including through Jensen’s shell company, Avionica International & Associates Inc.”

In the DOJ release, Assistant Attorney General Tysen Duva of the Justice Department’s Criminal Division stated:

“This defendant and his co-conspirators put profits above ethics and fair competition. Mr. Jensen’s arrest, extradition, and guilty plea marks the final conviction in this long-running case. We will continue to enforce the Foreign Corrupt Practices Act by aggressively pursuing those who use bribery and corruption to gain an unfair advantage in international business.”

U.S. Attorney Christopher Nassar for the Northern District of Oklahoma stated:

“[This] conviction underscores our commitment to accountability. The defendant was returned to the United States to face charges stemming from a 2012 indictment, which alleged his role in a scheme to pay bribes to government officials in Latin America while serving as a sales manager for BizJet. We thank our law enforcement partners whose coordinated efforts made this extradition possible.”

Assistant Director in Charge Darren Cox of the FBI Washington Field Office stated:

“Jensen finally faces justice for his years long scheme to bribe foreign government officials to win business for BizJet. His plea reflects the FBI’s long memory and global reach. We remain steadfast in our commitment to holding corporations and individuals accountable for international corruption.”

Finkel was a former executive at Sicpa (a Swiss technology company which provides governments with banknote security inks and secured identification, traceability and authentication solutions).

The criminal complaint stated:

“This case involves a bribery scheme to pay, among others, a Brazilian official (Official- 1) in exchange for lucrative business and business advantages with the Brazilian government. During portions of the relevant time period, Finkel was an executive vice president of Subsidiary- 1, a subsidiary of Company- 1, and the owner of his own consulting firm, Finkel Company- 1, which received over $292 million in payments from Company- 1 and its subsidiaries and affiliates. During the course of the scheme, Finkel paid bribes of over $14 million to Official- 1 and Official- l ‘ s wife (CC- 1) in order to corruptly obtain and retain contracts worth over $1 billion between Subsidiary- 1 and the Brazilian Mint, referred to as the CMB . The vehicle for paying the bribes to Official- 1 was a purported consulting company (i .e. Consulting Company- 1) set up in the name of Official- l ‘ s wife. Finkel furthered the scheme while present in New York, New York, among other places, and caused wire transfers in furtherance of the scheme to be sent from New York, New York to Brazil.”

In October 2022, Finkel was arrested and appeared before a judge and released on bail. The judge issued an order directing that filings and docket entries be filed under seal and the case has remained under seal for over four years with numerous continuances filed.

On October 15, 2026, the DOJ made a filing in the case indicating that it and defense counsel were in engaged in discussions concerning a possible disposition of the case and that the parties submitted a notice of intent to waive indictment and file a criminal information.

On October 21, 2026 a four page information was filed charging Finkel with one count of conspiracy to violate the FCPA’s anti-bribery provisions.

The information alleges in pertinent part:

“On or about December 18, 2008, the Casa da Moeda do Brasil (the “CMB”), a department or agency of the Brazilian government, entered into a five-year contract (the “2008 Contract”) with a Brazilian subsidiary of Company-1 (“Subsidiary-1”), worth approximately $1.4 billion. Pursuant to the 2008 Contract, Subsidiary-1 pledged to implement and service a system to track and tax beverages for the Brazilian government called “SICOBE.” The 2008 Contract was signed by, among others, Finkel on behalf of Subsidiary-1.

In or about 2009, a close relative of an official of the Receita Federal of Brazil (“RFB”) who participated in the selection of Subsidiary-1 for the 2008 Contract (“Official-1”) incorporated a company identified as a consulting company (“Consulting Company-1”) for the benefit of Official-1.

According to the information, Finkel and others “agreed to pay and offer money and other things of value to foreign officials in Brazil, including an official of the Receita Federal of Brazil (“RFB”) (“Official-1”), to obtain and retain business, secure an improper advantage, and direct business to a Swiss company (together with its subsidiaries and affiliates, “Company-1”) and others, including while Finkel worked for an affiliate of Company-1.

The information alleges the following overt acts in furtherance of the conspsiracy.

“On or about June 12, 2009, FINKEL entered into a contract (the “Finkel Contract”) in New York, New York, on behalf of a company (“Finkel Company-1”) with Consulting Company-1, which provided, among other things, that Consulting Company-1 would provide purported consulting services to Finkel Company-1, and designated a specific financial institution headquartered in New York, New York (“Bank-1”) to be used for payments from Finkel Company-1 to Consulting Company-1.

On or about December 4, 2009, Finkel Company-1 received a wire from Company-1 in the approximate amount of $2,373,789.46 with the payment detail “COMMISSION SICOBE+SCORPIOS.” The wire was deposited to a bank account of Finkel Company-1 (“Finkel Company-1 Account”) at Bank-1.

On or about December 7, 2009, Finkel Company-1 sent approximately $125,000 from Finkel Company-1 Account to Consulting Company-1.

On or about June 5, 2015, Finkel Company-1 Account received a wire from Company-1 in the amount of approximately $2,357,253.06.

On or about the same day, June 5, 2015, Finkel Company-1 Account sent approximately $177,000 to Consulting Company-1.

Finkel is represented by Lorin Reisner (Paul Weiss).

This article by Samuel Rubenfeld (MLex) highlights the following.

• Finkel was found guilty by a Rio di Janeiro court and sentenced to more than 11 years in prison. But Finkel appealed and his conviction was overturned in June 2022, according to reports at the time in Brazilian media.
• A Brazilian subsidiary of Sicpa and its spinoff company reached a leniency deal in 2021 with Brazilian authorities, agreeing to pay 762 million reais ($151.1 million) to resolve the investigation.
• The Office of the Attorney General of Switzerland ordered Sicpa in 2023 to pay 81 million Swiss francs ($91 million) after failing to prevent bribes being paid to officials in South America.