Department of Justice

Justice Department collected more than $8 billion in civil and criminal cases in 2013

Attorney General Eric Holder announced on January 9, 2014 that the Justice Department collected at least $8 billion in civil and criminal actions in the fiscal year ending Sept. 30, 2013. The statistics indicate that in FY 2013, approximately $5.9 billion was collected by the department’s litigating divisions and the U.S. Attorneys’ offices in individually and jointly handled civil actions. The largest civil collections were from affirmative civil enforcement cases, in which the United States recovered money lost to fraud or other misconduct and collected fines imposed on individuals and/or corporations for violations of federal health, safety, civil rights or environmental laws.

January 23rd, 2014|Judgment|

Agencies jointly support that FCRA Section 1681c does not violate first amendment

On May 3, 2012, the Federal Trade Commission (FTC) joined the Department of Justice (DOJ) and the Consumer Financial Protection Bureau (CFPB) in filing a memorandum brief in support of the constitutionality of the Fair Credit Reporting Act (FCRA), established in 1970 to protect credit report information privacy and to ensure that the information supplied by consumer reporting agencies (CRAs) is as accurate as possible.

In the case of Shamara T. King vs. General Information Services, Inc. (GIS), the CRAs address a provision of the FCRA that balances the Act’s dual purposes, i.e., to protect consumers from privacy invasions caused by the disclosure of sensitive information and to ensure a sufficient flow of information to allow the CRAs to fulfill their vital role.) The provision, Section 1681c, bars CRAs from disclosing arrest records or other adverse information that is more than seven years old, in most cases.

The agencies brief refutes GIS’s argument that this FCRA protection is an unconstitutional restriction of free speech, pointing out that the recent U.S. Supreme Court case law that GIS cites to support its argument, Sorrell v. IMS Health Inc., “does not change the settled First Amendment standards that apply to commercial speech, nor does it suggest that restrictions on the dissemination of data for commercial purposes

[such as those by CRAs] must satisfy stricter standards.” Therefore, the brief concludes, the court should not invalidate the FCRA provision, as it “directly advances the government’s substantial interest in protecting individuals’ privacy” while also accommodating the interest of businesses. The case is pending.

May 21st, 2012|Judgment|

Department of Justice drops controversial non-disclosure proposal

The DOJ, in a letter dated November 3, 2011, said that it is dropping its proposed regulation that would allow federal law enforcement agencies in certain cases to tell Freedom of Information Act (FOIA) requesters that the government has no records on a subject, when it actually does. The DOJ indicated that it is now looking at other options to preserve the integrity of sensitive records but allow for public openness.

The letter noted that the DOJ has actually been issuing such denial responses for nearly 25 years, since Attorney General Edwin Meese issued the directive. The DOJ defended this approach and maintained that it did not constitute “lying” as some have suggested, and contended that its proposed regulation was an effort to systematize Meese’s order in federal regulations and to obtain public comments.

While expressly contemplated by statute and, according to the DOJ, necessary to protect vital law enforcement and national security interests, the practice went on for years with much less transparency. Under Meese’s guide, the government could tell FOIA requesters that it had no records if merely confirming their existence would be a tip-off that there was a criminal investigation. Denials of record existence also were permitted in situations legally referred to as “exclusions,” i.e., when federal law enforcement agencies needed to protect the identities of informants and when the FBI was asked for records about foreign intelligence, counterintelligence or international terrorism.

November 17th, 2011|Legislation|

Department of Justice filed a record number of criminal cases in 2011

Acting Assistant Attorney General Sharis A. Pozen in a November 17, 2011 published speech reported that in the fiscal year 2011, the DOJ filed 90 criminal cases — the highest number in the past 20 years. The DOJ agreed to more than $520 million in criminal fines, which is close to the amount in 2010 (which totaled 60 cases.) In this year’s 90 cases, 27 corporations in the real estate, optical disk drives, auto parts, air cargo, and financial services industries were charged along with 82 individuals.

Pozen also disclosed that the DOJ has been conducting an international cartel investigation into price fixing and bid rigging in the auto parts industry, which already resulted in the guilty pleas of one corporation and three individuals, $200 million in fines, and three jail terms for the executives involved in the conspiracy.

In the real estate industry, Pozen said that the DOJ continues its investigations into bid rigging conspiracies at public real estate foreclosure auctions and tax lien auctions. With the help of the FBI, the DOJ agents ferreted out the ways in which the participants coordinated their bids. To date, 32 defendants have pleaded guilty to conspiracy charges, according to Pozen.

The DOJ remains focused on criminal activity in the financial services sector. Pozen noted that together with several federal and state agencies, the DOJ has been investigating a criminal conspiracy involving bid rigging in the municipal bond investments market, resulting in nine pleas of individuals this year. These investigations, which are ongoing, impelled JPMorgan Chase to enter into an agreement to resolve its role in the conspiracy, and agree to pay $228 million in restitution, penalties, and disgorgement to federal and state agencies. Earlier in the year, UBS AG also agreed to pay a total of $160 million and Bank of America previously consented to $137.3 million.

November 17th, 2011|Criminal Activity, Educational Series|

Paying for ambiguity: the myths of instant background checks and national databases

The cottage industry of data-collection agencies that provide inexpensive background information is flourishing even in this tough economy. Many prospective employers with tight budgets believe they can save money by relying on the “national” records that are spewed out within minutes of entering a credit card number. So just what do you get for $19.99? Not much. Or a lot…a lot of worthless data, that is. Unverified name-match only records come up by the hundreds if the name is fairly common. And it is nearly impossible to determine case details or duplicate filings, as the cryptic printouts often require specialized knowledge that is specific to each state, municipality or records venue.

Many subjects who are flagged as criminals in these databases have never been convicted of a crime. In fact, according to the U.S. Bureau of Justice statistics for felony defendants in large urban counties, one-third of felony arrests never lead to a conviction. And there is no standardized process for reporting arrests and dispositions or updating the records at the various court levels. Some reported offenses are not actually violations of the criminal code in the particular state, but may still show up in these databases.

There are few regulations governing the use of background information beyond the provisions of the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) does not mandate that data aggregators provide guidance on how to properly interpret their records. The only possible value of these so-called national databases is to serve as an indicator that a record may exist, and use the search results to supplement a full investigation. Since the FCRA requires that all “reasonable procedures to assure maximum possible accuracy of the information are followed” and that “the information is complete and up-to-date,” searches for employment purposes must be conducted either manually or through direct access in the particular court where the record is filed.

Employment experts at a July 2011 Equal Employment Opportunity Commission (EEOC) hearing urged the Commission to consider the comprehensive recommendations put forth by the National Employment Law Project (NELP) in its report on the effect of criminal background checks in employment decisions. Among its recommendations, the NELP suggested that the EEOC revise its now 20-year-old guide on conviction records in view of the “intervening proliferation of instant computerized background information…” The EEOC should also address the “use of arrest records and third-party databases that are considered a part of the hiring process.”

October 17th, 2011|Educational Series|

Financial advice show hosts have host of problems

Just about any time of the day, the airwaves are filled with self-appointed financial gurus spewing their secrets for managing money and ways to get rich. But the true secrets of more than a dozen of these wealth peddlers may be in their shady backgrounds and off-the-air dealings. Here are a few examples of the bamboozlements, as disclosed by the Securities and Exchange Commission (SEC) and other authorities.

On June 13, 2011, Clifford Robertson was sentenced to 97 months for bank fraud, to be followed by 24 months for aggravated identity theft and ordered to pay $4,627,520 in restitution, according to a statement by the U.S. Department of Justice’s Federal Bureau of Investigation Dallas Field Office. The bureau’s investigation determined that Robertson claimed to be a real estate investment advisor who hosted AM radio real estate investment talk shows and in-person seminars. Robertson admitted that beginning in December 2007, he used the identity of another person to submit a fraudulent personal financial statement to a lending institution in order to obtain money by false pretenses. The loss to investors was estimated at around $3 million.

Another recent financial show host shakedown was announced in a June 3, 2011 press release by the Department of Justice’s U.S. Attorney’s office for the Southern District of Florida which said that “criminal information was filed against Anthony F. Cutaia, charging him with nine counts of mail fraud…” Cutaia, who was the host of “Talk About Mortgages and Real Estate,” a television and radio program, was also the managing member and beneficial owner of CMG Property Investment Group, LLC, which purportedly engaged in commercial real estate investments in Florida, and promised not to collect commissions or fees from the investors until the properties were sold and a profit was made. However, court papers allege that Cutaia invested little of the money and instead used it to make payments to pre-existing investors and to pay his own business and personal expenses. Legal documents further show that Cutaia filed for bankruptcy in 2007, but that case was tossed out. He filed another Chapter 7 petition on May 11, 2011.

Also exposed this year was John Farahi, a host on a Farsi language radio station in the Los Angeles area. The SEC’s complaint filed in the U.S. District Court for the Central District of California alleges that NewPoint, co-owners John Farahi and Gissou Rastegar Farahi, and its controller Elaheh Amouei targeted investors in the Iranian-American community by touting NewPoint on a daily finance radio program hosted by Farahi. The SEC charges that the Farahis or Amouei would then make appointments with interested listeners to discuss investment opportunities offered by NewPoint, and subsequently misled more than 100 investors into purchasing over $20 million worth of debentures that they claimed were low risk. Many investors also were falsely told that they were investing in FDIC-insured certificates of deposit, or government or corporate bonds issued by companies backed by the funds from the Troubled Asset Relief Program (TARP). According to the SEC, most of the money raised was instead transferred to accounts controlled by the Farahis to, among other things, fund construction of their multi-million dollar personal residence in Beverly Hills.

June 18th, 2011|Educational Series, Fraud|

FCPA enforcement milestone: corporate conviction handed down by jury

The Department of Justice announced on May 11, 2011 that Lindsey Manufacturing Company, a privately-held Azusa, CA emergency systems manufacturer, its executives Keith Lindsey and Steve Lee, and a Mexican intermediary were convicted by a federal jury on all counts for their roles in a scheme to pay bribes to Mexican government officials at the Comisión Federal de Electricidad (CFE), a state-owned utility, to win $19 million in contracts.

According to court documents, between February 2002 and March 2009, Lindsey Manufacturing, Keith Lindsey, Steve Lee and others used the company’s Mexican agent, Enrique Aguilar, to funnel bribe payments to officials of the CFE. (See http://www.justice.gov/opa/pr/2011/May/11-crm-596.html for further details about the case.)

Although individuals have gone to trial and been convicted of violating the FCPA, this is a first such conviction for a company, as companies previously have opted to settle or plead guilty. The FCPA is expected to be an important enforcement tool under the new Dodd-Frank law as similar cases are likely to end up in court.

May 13th, 2011|Criminal Activity|

Seven individuals charged by SEC in global warming scheme

The Securities and Exchange Commission (SEC) today charged seven individuals with perpetrating a fraudulent pump-and-dump scheme in the stock of a sham company that purported to provide products and services to fight global warming. The scheme resulted in more than $7 million in illicit profits from the sales of stock in CO2 Tech Ltd. at artificially inflated prices. The company, based in London, touted impressive business relationships and anti-global warming technology innovations, but was found to have no significant assets or operations.

According to the SEC’s complaint filed in U.S. District Court for the Southern District of Florida, the scheme was enacted through Red Sea Management Ltd., a Costa Rican asset protection company that laundered millions of dollars in illicit trading proceeds out of the United States on behalf of its clients. Charged in the in the fraudulent pump-and-dump scheme were: Jonathan R. Curshen, a Florida resident who founded and led Red Sea, David C. Ricci and Ronny Morales Salazar of Costa Rica, who were Red Sea stock traders, Ariav “Eric” Weinbaum and Yitzchak Zigdon of Israel, who were Red Sea clients, Robert L. Weidenbaum, of Florida, who was a stock promoter and operator of CLX & Associates, and Michael S. Krome, a New York lawyer who allegedly wrote a fraudulent opinion letter. Without admitting or denying the allegations in the complaint, Ricci settled the SEC’s charges by agreeing to an injunction against future violations of these provisions and a penny stock bar.

In a related criminal action, charges brought by the Justice Department’s Criminal Division were unsealed today against Curshen, Krome, Salazar, Weidenbaum, Weinbaum, and Zigdon. The defendants were charged variously with conspiracy to commit securities, mail and wire fraud, violating securities regulation laws and obstruction of justice.

February 18th, 2011|Criminal Activity, Fraud, Green Technology|

Tyson Foods charged with violations of the Foreign Corrupt Practices Act

The Securities and Exchange Commission (SEC) today charged Tyson Foods Inc. with violating the Foreign Corrupt Practices Act (FCPA) by making illicit payments to two Mexican government veterinarians responsible for certifying its Mexican subsidiary’s chicken products for export sales.

The SEC alleged that Tyson de Mexico concealed the improper payments by putting two veterinarians’ wives on its payroll but they performed no work for the company. The spouses were later removed from the payroll and their payments were processed with invoices issued for “services.” Tyson de Mexico paid the veterinarians, who were responsible for certifying Tyson’s chicken products for export and served as official Mexican government veterinarians at Tyson facilities, a total of $100,311. It was not until two years after Tyson Foods officials first learned about the subsidiary’s illicit payments that its counsel instructed Tyson de Mexico to cease making the payments.

The SEC further charged that in connection with these improper payments, Tyson Foods failed to keep accurate books and records and failed to implement a system of effective internal controls to prevent salary payments to phantom employees and the payment of illicit invoices. The improper payments were recorded as legitimate expenses in Tyson de Mexico’s books and records, and included in Tyson de Mexico’s reported financial results for fiscal years 2004, 2005 and 2006. Tyson de Mexico’s financial results were, in turn, a component of Tyson Foods’ consolidated financial statements filed with the SEC for those years.

Without admitting or denying the SEC’s allegations, Tyson Foods consented to the entry of a final judgment ordering disgorgement plus pre-judgment interest of more than $1.2 million and permanently enjoining it from violating the anti-bribery, books and records, and internal controls provisions of the FCPA. The proposed settlement is subject to court approval.

In a related criminal action announced today, the Department of Justice (DOJ) charged Tyson Foods with conspiring to violate the FCPA and violating the FCPA. The DOJ and Tyson Foods agreed to resolve the charges by entering into a deferred prosecution agreement. Tyson Foods also agreed to pay a $4 million criminal penalty.

February 12th, 2011|Fraud|

Spotlight on Foreign Corrupt Practices Act (FCPA) compliance

All U.S. firms seeking to do business in foreign markets must be familiar with the FCPA. Enacted in 1977 and amended several times since then, the FCPA generally states that if a foreign company has any footprint in the U.S., even simply wiring money through it, that company is subject to prosecution if involved in corrupt payments to foreign officials for the purpose of obtaining or keeping business.

The FCPA applies to any individual, firm, officer, director, employee, or agent of a firm and any stockholder acting on behalf of a firm. U.S. parent corporations also may be held liable for the acts of foreign subsidiaries where they authorized, directed, or controlled the activity in question, as can U.S. citizens or residents, who were employed by or acting on behalf of such foreign subsidiaries. The same provisions essentially extend to intermediaries which include joint venture partners or agents.

Between 2006 and 2009, the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC), both of which have jurisdiction over the FCPA, initiated more enforcement actions than in the first 28 years of the FCPA’s existence. And the financial penalties for violations have skyrocketed. In December 2008, Siemens AG, Europe’s largest engineering firm, pleaded guilty to violating U.S. anti-corruption laws and was ordered to pay $1.6 billion to settle bribery charges in U.S. and Germany.

To ensure FCPA compliance, the DOJ recommends that companies exercise risk-based due diligence to ensure that they are doing business with reputable and qualified entities and representatives. The due diligence process, at minimum, should include investigating potential foreign representatives and joint venture partners to determine their general reputation and qualifications, whether they have personal or professional ties to the government, the reputation of their clients, and their history with the U.S. Embassy or Consulate, local bankers and other business associates. Additionally, the U.S. firm should be aware of “red flags,” i.e., unusual payment patterns or financial arrangements, indicators of corruption in the country or the particular industry, or refusal by the foreign joint venture partner or representative to provide certification that it will not engage in actions to further an unlawful offer, promise, or payment to a foreign public official and not cause the firm to be in violation of the FCPA (such as paying unusually high commissions, lacking transparency in expenses and accounting records, or retaining a joint venture partner or representative that has been referred by a government official.)

Capturing recent headlines are the changes to the FCPA-related compliance and ethics provisions of the Federal Sentencing Guidelines for Organizations that will become effective in November 2010. The amendments provide that a meaningful compliance program requires, among other actions, that when criminal conduct is detected, the company implement “reasonable steps to respond appropriately … to prevent further similar conduct.” An annotation to that provision specifies that the actions include “assessing the compliance and ethics program and making modifications necessary to ensure that the program is effective … and possibly including the use of an outside professional advisor to ensure adequate assessment and implementation of any modifications.”

The Guidelines also state that a board must be knowledgeable about the content and operation of the company’s compliance program and must “exercise reasonable oversight with respect to the implementation and effectiveness of its compliance and ethics.” Likewise, the DOJ’s prosecution guidelines consider whether the board exercises independent reviews of the compliance program and whether it is provided with information sufficient to enable the exercise of independent judgment. Directors have similar “Caremark” oversight duties arising under case law and various other directives, such as stock exchange rules, Sarbanes-Oxley, and audit committee charters.

October 14th, 2010|Educational Series, Legislation|

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