Judge lets SEC pursue foreign bribery case vs telecom execs

Fri Feb 8, 2013 3:29pm EST

* Ex-Magyar Telekom execs must face civil charges

* Deutsche Telekom, Magyar Telekom reached $95.2 mln accord

By Jonathan Stempel and Aruna Viswanatha

Feb 8 (Reuters) - A Manhattan federal judge said the U.S. Securities and Exchange Commission may pursue civil bribery charges against three former executives at a Hungarian unit of Deutsche Telekom AG.

Friday's decision by U.S. District Judge Richard Sullivan is a win for the SEC, following several rocky years for U.S. authorities in their attempts to police individuals accused of foreign bribery.

Sullivan rejected the motion of former Magyar Telekom Plc Chief Executive Elek Straub, director of central strategic organization Andras Balogh and director of business development and acquisitions Tamas Morvai to dismiss the SEC case alleging violations of the Foreign Corrupt Practices Act.

The defendants were charged in December 2011 when Deutsche Telekom and its 60-percent owned Magyar Telekom agreed to pay $95.2 million to settle U.S. criminal and civil probes into the bribery of government officials in Macedonia and Montenegro.

U.S. investigators said Magyar executives had in 2005 and 2006 used sham contracts to funnel millions of dollars of payments intended for government officials.

These officials would in turn would help Magyar Telekom obtain regulatory benefits, win business and keep rivals out of the market, the investigators said.

The SEC said its anti-bribery claims were based solely on allegations involving Macedonia. The $95.2 million payout included $64 million of criminal penalties assessed by the Justice Department and a $31.2 million civil penalty by the SEC.

Lawyers for Straub, Balogh and Morvai did not immediately respond to requests for comment.

SEC Assistant Chief Litigation Counsel Robert Dodge said, "We're very pleased with the court's ruling, which rejected all of the defendants' arguments. We look forward to pressing forward with the case."

Mary Jo White, nominated last month by President Barack Obama to become the SEC's next chairman, had represented Deutsche Telekom in the case.

U.S. INJURY

The defendants had argued that because the case hinged on only a few emails that were routed through U.S. servers, the SEC did not have jurisdiction to sue them in the United States.

But Sullivan said there was enough to suggest the defendants intended harm in the United States. He noted that Deutsche Telekom and Magyar Telekom made regular filings with the SEC, and had American depositary receipts listed on U.S. exchanges.

"Defendants knew or had reason to know that any false or misleading financial reports would be given to prospective American purchasers of those securities," he wrote.

Sullivan also rejected the defendants' arguments that the SEC waited too long to sue, and did not allege enough facts to suggest their actions violated the FCPA.

"The court has little difficulty finding that ... the complaint states with particularity the circumstances constituting the alleged fraud as to each defendant," he wrote.

Friday's decision follows recent setbacks for U.S. investigators probing foreign bribery.

Last year the Justice Department dropped a high-profile prosecution of more than a dozen defendants in the military equipment industry, after prosecutors failed to convince two juries that what they did was illegal.

And in December, a Houston federal judge overseeing an SEC case against former executives of oil driller Noble Corp dismissed part of the lawsuit, including some conduct that happened before 2007, but allowed the SEC to amend its case.

Defense lawyers have said U.S. enforcement agencies are increasingly overreaching in efforts to fight foreign bribery, typically by going after alleged misconduct that occurred long ago, took place entirely outside the United States or involved minor payments not covered under the law.

The case is SEC v. Straub et al, U.S. District Court, Southern District of New York, No. 11-09645.

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