Former Siemens Argentina CEO Herbert Steffen and a Hungarian telecommunications executive named Elek Straub have a few things in common.
Both were targeted with Foreign Corrupt Practices Act claims by the U.S. Securities and Exchange Commission over alleged overseas bribes. Both hired Skadden, Arps, Slate, Meagher & Flom to defend them. And both tried to convince federal judges in Manhattan that the court didn’t have personal jurisdiction to hear their case.
Fortunately for Steffen, Skadden managed to win over Southern District Judge Shira Scheindlin (See Profile), who dismissed the SEC’s claims on Feb. 19 after determining that Steffen’s alleged conduct was too far removed from the United States for the SEC to establish jurisdiction.
Straub, on the other hand, wasn’t so fortunate. In a decision issued less than two weeks earlier, Scheindlin’s colleague, Judge Richard Sullivan (See Profile), ruled against the Magyar Telekom executive and his lawyers at Skadden and Hogan Lovells on the very same issue, allowing the SEC’s case to move ahead toward trial.
In December 2011 the SEC sued seven former Siemens executives, including Steffen, a German citizen who twice served as CEO of Siemens Argentina before his retirement in 2003. The SEC claimed that amid a wide-ranging bribery scheme in Argentina that lasted from 1996 to 2007, Steffen helped negotiate a $27 million bribe to the Argentine government, including then-President Fernando de la Rua, in order to renew a $1 billion contract to create national identity cards.
Argentina went on to cancel the contract despite the alleged bribe, prompting the company to initiate an arbitration proceeding with the World Bank’s International Centre for Settlement of Investment Disputes in 2002. The SEC alleged that in order to cover up evidence of Siemens’s corruption during the arbitration proceeding, Steffen and the others bribed Argentine officials not to disclose the existence of the previous bribes. ICSID ultimately awarded Siemens $217 million in 2007. In December 2008, Siemens agreed to pay a $450 million fine and to disgorge $350 million in profits, in what remains the biggest-ever FCPA settlement with the U.S. Department of Justice.
In a 23-page opinion, Scheindlin found that Steffen didn’t have sufficient contacts with the United States and dismissed him from the SEC’s case. (Steffen and his codefendants have also been indicted by the Southern District U.S. attorney, but have not been extradited.) The SEC had argued that the court had jurisdiction because Steffen authorized bribes to Argentine officials that resulted in falsified SEC filings in the United States, but Scheindlin concluded that Steffen’s alleged actions were "far too attenuated from the resulting harm to establish minimum contacts."
"The SEC does not allege that [Steffen] directed, ordered or even had awareness of the cover ups that occurred at SBS, much less that he had any involvement in the falsification of SEC filings in furtherance of those cover ups," wrote Scheindlin. Instead, the judge ruled, the law requires that the SEC prove Steffen "purposefully directed his activities towards [the United States]" and that the case "arises out of or is related to [Steffen's] contact with the forum."
Scheindlin acknowledged that other courts have exercised jurisdiction in parallel cases, and she singled out Sullivan’s Feb. 8 decision green-lighting the SEC’s case against Straub and two of his fellow executives at Magyar Telekom. But she determined that the cases were different, since Straub and his codefendants are accused of both orchestrating the foreign bribes at issue and signing off on misleading information to the company’s auditors and the SEC.
"If this Court were to hold that Steffen’s support for the bribery scheme satisfied the minimum contacts analysis, even though he neither authorized the bribe, nor directed the cover up, much less played any role in the falsified filings, minimum contacts would be boundless," wrote Scheindlin.
Skadden’s Erich Schwartz, who represents Steffen, praised Scheindlin’s decision.
"I think the court correctly described his alleged involvement as tangential and appropriately recognized the limits of U.S. jurisdiction over him," said Schwartz. A spokesperson for the SEC said the agency was "reviewing the decision."
Skadden partner Saul Pilchen is representing Straub in the case before Sullivan, alongside Carl Rauh of Hogan Lovells.
@|Victor Li, a reporter at Litigation Daily, an affiliate, can be contacted at firstname.lastname@example.org.