What FCPA defendants can learn from blockbuster Lindsey win

By Alison Frankel
December 5, 2011

In the run-up to the first trial of a corporation charged with violating the Foreign Corrupt Practices Act, Lindsey Manufacturing and its lead counsel, Jan Handzlik, put up as vigorous a defense as you can imagine. Handzlik (then at GreenbergTraurig and now at Venable) worked with Janet Levine of Crowell & Moring (counsel for Steve Lee, Lindsey’s former CFO) to challenge the government’s conduct, its evidence, even its interpretation of the FCPA’s language. It was to no avail. In May, after a five-week trial and seven hours of deliberation, a Los Angeles federal jury convicted Lindsey Manufacturing, chairman and CEO Keith Lindsey, and CFO Lee on all counts. For Handzlik and Levine, who were convinced the prosecution’s allegations that their clients funneled bribes to officials of a Mexican state-owned electric company were meritless, the conviction was devastating.

So you can image their joy Thursday, when U.S. District Judge A. Howard Matz in Los Angeles vacated the convictions and threw out the indictment against their clients. Matz dismissed the government’s case with prejudice, which means that unless the U.S. Court of Appeals for the Ninth Circuit overturns his ruling, the Lindsey defendants cannot be recharged.

Matz based his decision on numerous examples of government misconduct, beginning with falsehoods in search-and-seizure warrant applications, extending to false and misleading grand jury testimony by an FBI agent, and compounded by prosecutors’ failure to turn over some of that testimony to the defense. Handzlik, Levine, and their teams had alerted the judge to much of the misconduct before the jury reached a verdict, but Matz said the magnitude of the government’s behavior became clear only in retrospect.

“When a trial judge managing a large docket is required to devote a great deal of time and effort to a fast-moving case that requires numerous rulings, often the judge will miss the proverbial forest for the trees,” Matz wrote. “That is what occurred here … . The government has acknowledged making many ‘mistakes,’ as it characterizes them. ‘Many’ indeed. So many, in fact, and so varied, and occurring over so lengthy a period (between 2008 and 2011) that they add up to an unusual and extreme picture of a prosecution gone badly awry.”

The question is whether the Lindsey defendants’ stunning reversal of fortune is a victory just for them and their lawyers, or whether there are lessons for other FCPA defendants. A recent Gibson, Dunn & Crutcher report on FCPA, after all, said that more FCPA defendants — including corporate defendants — are choosing to go to trial rather than plead guilty. Is the Lindsey ruling so fact-specific that those defendants can’t benefit from it?

Both Handzlik and Levine told me Friday that there are, in fact, encouraging lessons in the Lindsey story for defendants facing FCPA charges, even though Matz’s ruling won’t have a direct impact on anyone else’s case. “The message is the same as it is in any of these high-profile cases,” said Levine. “When the government cares too much about winning and forgets fairness and justice are supposed to be the hallmarks of prosecution, [it makes] decisions that should not have been made.” As the Justice Department has made a priority of FCPA prosecution in the last few years, Levine said, it has brought questionable cases. (She pointed, by way of example, to the July mistrial in a multidefendant FCPA trial stemming from a government sting operation in Africa.)

“We’ve become a nation of cooperators,” Handzlik said. He agreed with Levine that the Lindsey case shows it’s important to test the strength of FCPA prosecution — even for corporate defendants, not just individuals. “We approached this case from the beginning with the attitude that we were going to fight,” he said. Lindsey is in some regards a typical FCPA defendant, according to Handzlik, who said that in addition to charging huge multinationals with bribing foreign officials, the Justice Department “has made a practice of going after small companies with a limited ability to fight — they have no choice but to roll over because it’s a matter of life and death.”

And choosing to defend itself cost Lindsey dearly, Handzlik said. The 66-year-old privately-owned company, which manufactures a particular type of utility tower, has been on the brink of collapse for a year and would not have survived if the Lindsey family had not sunk their own money into the business. After it was indicted, Lindsey lost contracts and customers, and struggled to keep its 100 employees on the payroll. “But one thing made the decision to fight easy,” Handzlik said. “My clients are not guilty.”

The other lesson from Lindsey’s defense, according to Handzlik, is that the FCPA statute needs to be tested in litigation. His challenges to the government’s interpretation of the law’s definition of a foreign official and of instrumentality didn’t make much headway with Matz, but they were essentially the first such challenges in the FCPA’s history. (As I’ve reported, FCPA defendants that followed Lindsey’s lead have also hit roadblocks in arguments that executives of state-owned businesses are not “foreign officials.”)

“Many of the crucial terms have not been defined or constructed by courts,” Handzlik said. “The Justice Department has been permitted to read whatever it wanted into the law.” And unless defendants litigate those issues through appellate courts, he said, the government’s definitions prevail.

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