SAN FRANCISCO — A federal judge has turned back a request from former Autonomy CFO Sushovan Hussain to toss the criminal charges against him related to his role in the company’s ill-fated 2011 sale to Hewlett-Packard.
Hussain’s lawyers at Keker, Van Nest & Peters had argued the charges against him are an impermissible extraterritorial application of federal criminal law since the underlying transaction involved Autonomy, a London- and Cambridge-based software company, and Hewlett-Packard Co.’s Dutch subsidiary.
But U.S. District Judge Charles Breyer of the Northern District of California disagreed and on Oct. 27 issued a 16-page order allowing the case to proceed.
Hussain was indicted in November on charges that he participated in a scheme to artificially boost Autonomy’s revenue. The charges came more than five years after HP paid $11 billion to acquire Autonomy. HP announced an $8.8 billion write-down of Autonomy’s value in 2012, and claimed that more than $5 billion of that amount was due to accounting irregularities and misrepresentations by Autonomy.
In their motion to dismiss the government’s indictment, Hussain’s lawyers at Keker argued 14 wire fraud charges should be dismissed because the statutes don’t apply to conduct abroad and that any alleged fraud victims would have been shareholders in Autonomy or HP’s Dutch-based subsidiary. They also argued the securities fraud charge should be dismissed because the government failed to allege Hussain acted “in connection with” issuers of U.S.-listed HP securities.
Although Breyer acknowledged in the Oct. 27 decision that the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court seem to be “somewhat in tension” over what constitutes impermissible extraterritorial application of U.S. securities laws, he agreed with federal prosecutors that the focus of the wire fraud statute is the use of domestic wires to achieve a scheme to defraud.
“So long as the government identifies a domestic wire transmission, the statute is not improperly extraterritorial in its application,” Breyer wrote. Breyer noted that this bright-line rule “rests somewhat uneasily” with the U.S. Supreme Court’s 2010 decision in Morrison v. National Australia Bank, which held that there’s a presumption against extraterritorial application of federal laws. But Breyer concluded Morrison “does not necessarily compel a contrary result” and that he was bound by Ninth Circuit precedent that leans more toward the government’s position.
“The Ninth Circuit has suggested (though not explicitly held) that the focus of a conspiracy statute is the object of the conspiracy, and thus that the conspiracy is domestic so long as the object, if executed, would constitute a domestic violation of the underlying statute,” Breyer wrote. “Applying the rule to the facts here leads inexorably to the conclusion that the superseding indictment alleges a domestic conspiracy, because the objects of the conspiracy were instances of domestic wire fraud.”
Hussain’s lead lawyer, John Keker, didn’t immediately respond to an email message Monday morning.