Judge dismisses SEC FCPA case against former Och-Ziff executives

A federal judge has dismissed the Securities and Exchange Commission’s civil lawsuit against two former executives of U.S. fund manager Och-Ziff Capital Management Group, finding that the SEC filed too late to seek damages for violations of the Foreign Corrupt Practices Act. The company is accused of making bribery payments to high-level government officials in Africa in exchange for business.

In a 32-page opinion on July 12, U.S. District Judge Nicholas Garaufis for the Eastern District of New York found that the SEC’s civil claims against Michael Cohen, who headed Och-Ziff’s European office, and Vanja Baros, an investment executive on Africa-related deals, were barred by the FCPA’s five-year statute of limitations.

The SEC complaint, filed in January 2017, alleged that Cohen and Baros caused tens of millions of dollars in bribes to be paid to high-level government officials in Africa. Their alleged misconduct induced the Libyan Investment Authority sovereign wealth fund to invest in Och-Ziff managed funds.

Cohen and Baros also allegedly directed illicit efforts to secure mining deals to benefit Och-Ziff by directing bribes to corruptly influence government officials in Chad, Niger, Guinea, and the Democratic Republic of the Congo, the SEC said. The Commission alleged in its complaint that the offenses occurred between May 2007 and April 2011.

Judge Garaufis rejected the SEC’s argument that tolling agreements had extended the statute of limitations enough to allow the claims, or that the SEC should be granted more time for discovery. “Cohen’s tolling agreements do not render timely the SEC’s claims against him for monetary relief,” the opinion states.

The SEC’s complaint charged Cohen and Baros with violating the FCPA and Section 30A of the Securities Exchange Act and aiding and abetting Och-Ziff’s violations. Cohen also was charged with violating the Investment Advisers Act.

Kara Brockmeyer, then chief of the SEC’s FCPA unit, referred to Cohen and Baros as the “masterminds of Och-Ziff’s bribery scheme.”

In September 2016, Och-Ziff paid $412 million in criminal and civil penalties to resolve one of the biggest FCPA enforcement actions ever.

Without admitting or denying the agency’s findings, two other Och-Ziff executives settled SEC charges for FCPA violations. CEO and founder Daniel Och agreed to pay nearly $2.2 million to resolve the SEC action, while CFO Joel Frank agreed to settle SEC charges that he caused FCPA violations in Libya and the Democratic Republic of the Congo.

The decision follows the June 2017 unanimous Supreme Court ruling in the case, Kokesh v. SEC, which found that disgorgement collected by the SEC is subject to the general five-year statute of limitations on monetary civil penalties. Since Kokesh, statute-of-limitations issues for the SEC have only grown, Steven Peikin, co-director of the SEC’s Enforcement Division, told an audience at the New York University School of Law.