Business Crimes Hotline

DISTRICT OF COLUMBIA

DOJ Antitrust Division Announces Change to Carve-Out Practice for Individuals

On April 12, Bill Baer, Assistant Attorney General for the Department of Justice, Antitrust Division, announced two significant changes to the Department's handling of corporate disposition via plea agreements.

Previously, as part of plea agreements with corporations, the Antitrust Division had carved out those employees whom it believed had culpability from those who were afforded non-prosecution protection by the plea agreement. Further, additional carve-outs were also created for three other categories of individuals: 1) Employees against whom the Antitrust Division was continuing to develop evidence; 2) Employees who had refused to cooperate with the Antitrust Division's investigation; and 3) Employees with potentially relevant information whom the Antitrust Division had not been able to locate. As part of the carve-out process, the names of the employees within these four categories were written into the corporate plea agreement that was publicly filed in the corresponding federal district court.

The newly announced prospective practice of the Antitrust Division is twofold. First, going forward, only employees believed to be part of the criminal conduct will continue to be carved out of corporate plea agreements. Second, names of carved-out employees will now be listed in an appendix that the Antitrust Division will ask for leave to file under seal, rather than in the publicly filed plea agreement.

In announcing the policy shift that was arrived at after conducting a “thorough review of the division's approach to corporate dispositions,” Assistant Attorney General Baer summarized the Antitrust Division's rationale succinctly, as follows: “Absent some significant justification, it is ordinarily not appropriate to publicly identify uncharged third-party wrongdoers.”

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NEW YORK

Ongoing FCPA Investigation Leads to Charges Against French Citizen

On April 15, the DOJ announced that it had filed obstruction charges against 50-year-old French citizen Frederic Cilins, in connection with an ongoing Foreign Corrupt Practices Act (FCPA) investigation into an alleged bribery scheme involving mining rights in the Republic of Guinea.

In addition to the charge of obstructing a criminal investigation, the Complaint filed in the Southern District of New York after Cilins' arrest a day earlier in Jacksonville, FL, includes two additional counts: 1) tampering with a witness, victim, or informant; and 2) altering or falsifying records in a federal investigation.

According to the Complaint, Cilins attempted to bribe a witness to turn over documents to him for destruction. The attempts by Cilins ' made during face-to-face meetings with the witness, as well as during telephone conversations ' were either recorded or monitored by the Government. The documents, which included original copies of a contract between the company of a former wife of a since-deceased Guinean government official and the mining company and its affiliates for whom Cilins worked, were to be produced before the federal grand jury that has been convened for the case.

According to the Government, the deceased Guinean government official's position enabled him to influence mining concessions within the country, and the contract signed with the company established by his wife provided for $2 million to go to the company, as well as for additional funds “to be distributed among persons of good will who may have contributed to facilitating the granting of” rights. Further, the Complaint also accuses Cilins of attempting to induce a witness to sign a false affidavit addressing the subject matter of the grand jury's investigation.

While the obstruction charge carries a maximum five-year term of imprisonment, the remaining charges both carry 25-year maximum terms of imprisonment.

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DISTRICT OF COLUMBIA

DOJ Antitrust Division Announces Change to Carve-Out Practice for Individuals

On April 12, Bill Baer, Assistant Attorney General for the Department of Justice, Antitrust Division, announced two significant changes to the Department's handling of corporate disposition via plea agreements.

Previously, as part of plea agreements with corporations, the Antitrust Division had carved out those employees whom it believed had culpability from those who were afforded non-prosecution protection by the plea agreement. Further, additional carve-outs were also created for three other categories of individuals: 1) Employees against whom the Antitrust Division was continuing to develop evidence; 2) Employees who had refused to cooperate with the Antitrust Division's investigation; and 3) Employees with potentially relevant information whom the Antitrust Division had not been able to locate. As part of the carve-out process, the names of the employees within these four categories were written into the corporate plea agreement that was publicly filed in the corresponding federal district court.

The newly announced prospective practice of the Antitrust Division is twofold. First, going forward, only employees believed to be part of the criminal conduct will continue to be carved out of corporate plea agreements. Second, names of carved-out employees will now be listed in an appendix that the Antitrust Division will ask for leave to file under seal, rather than in the publicly filed plea agreement.

In announcing the policy shift that was arrived at after conducting a “thorough review of the division's approach to corporate dispositions,” Assistant Attorney General Baer summarized the Antitrust Division's rationale succinctly, as follows: “Absent some significant justification, it is ordinarily not appropriate to publicly identify uncharged third-party wrongdoers.”

'

NEW YORK

Ongoing FCPA Investigation Leads to Charges Against French Citizen

On April 15, the DOJ announced that it had filed obstruction charges against 50-year-old French citizen Frederic Cilins, in connection with an ongoing Foreign Corrupt Practices Act (FCPA) investigation into an alleged bribery scheme involving mining rights in the Republic of Guinea.

In addition to the charge of obstructing a criminal investigation, the Complaint filed in the Southern District of New York after Cilins' arrest a day earlier in Jacksonville, FL, includes two additional counts: 1) tampering with a witness, victim, or informant; and 2) altering or falsifying records in a federal investigation.

According to the Complaint, Cilins attempted to bribe a witness to turn over documents to him for destruction. The attempts by Cilins ' made during face-to-face meetings with the witness, as well as during telephone conversations ' were either recorded or monitored by the Government. The documents, which included original copies of a contract between the company of a former wife of a since-deceased Guinean government official and the mining company and its affiliates for whom Cilins worked, were to be produced before the federal grand jury that has been convened for the case.

According to the Government, the deceased Guinean government official's position enabled him to influence mining concessions within the country, and the contract signed with the company established by his wife provided for $2 million to go to the company, as well as for additional funds “to be distributed among persons of good will who may have contributed to facilitating the granting of” rights. Further, the Complaint also accuses Cilins of attempting to induce a witness to sign a false affidavit addressing the subject matter of the grand jury's investigation.

While the obstruction charge carries a maximum five-year term of imprisonment, the remaining charges both carry 25-year maximum terms of imprisonment.

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