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Cognizant Ex-Executives Must Face Bribery Charges (Corrected)

Feb. 19, 2020, 9:31 PM; Updated: Feb. 20, 2020, 6:09 PM

Two former Cognizant Technology Solutions Corp. executives can’t dodge criminal charges stemming from their alleged conspiracy to pay $2 million in bribes for permission to build a facility in India, a New Jersey federal judge ruled.

Cognizant ex-president Gordon J. Coburn and the tech company’s former top lawyer, Steven E. Schwartz, face a 12-count federal indictment claiming they violated the Foreign Corrupt Practices Act, falsified company records, and skirted internal accounting controls.

The case was filed by Department of Justice prosecutors in the U.S. District Court for the District of New Jersey.

Judge Kevin McNulty gave those charges the green light in a ruling docketed Tuesday.

He rejected the argument that the government violated the rule against “multiplicity,” or different criminal counts reflecting the same act, by charging Coburn and Schwartz separately for each bribery-related email.

Multiplicitous indictments aren’t inherently improper, the judge noted. The doctrine “is not so much a limit on what Congress could do as it is a matter of discerning what Congress did do,” and it “requires a commonsense look at the nature of the prohibition,” he said.

The critical question is whether the government is wrongly trying to chop up the intended “unit of prosecution”—for example, a single act of bribery—into smaller “units,” such as each email about the bribe, McNulty said.

That’s an issue of first impression in the FCPA bribery context, and both sides advanced reasonable arguments, the judge noted. But the government had the stronger one, he found.

The most “powerful” analogy is to mail and wire fraud statutes, which penalize each act, even when they all relate to the same scam, McNulty said. Although the mail fraud law was originally meant to protect the U.S. Postal Service itself, the wire fraud statute never had a similar focus, the judge said.

He considered the counter-example of the federal murder-for-hire statute, which treats each murder plot as a single offense, no matter how many acts the defendants committed to perpetrate it. That rule is related to the law’s multi-tiered sentencing scheme, which can’t be compared to the FCPA, McNulty said.

The ruling comes about two months after Schwartz sued Cognizant in Delaware, saying the company should have to cover the legal fees he’s racked up defending against the indictment and a civil suit by the Securities and Exchange Commission.

Coburn is represented by Jones Day and Krieger Kim & Lewin LLP. Schwartz is represented by Paul Weiss Rifkind Wharton & Garrison LLP, Bohrer PLLC, and Gibbons PC.

The case is United States v. Coburn, D.N.J., No. 19-cr-120, 2/18/20.

(Correct courts name and location in first and third paragraphs of Feb. 19 story.)

To contact the reporter on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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