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Harry Cassin
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Thomas Fox
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Marc Alain Bohn
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Bill Waite
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Feds Fire Back At ICE

The DOJ and Alcatel-Lucent this week responded to the petition filed by Costa Rica’s Instituto Costarricense de Electricidad, S.A. (ICE) for victim’s status and restitution.

The DOJ’s filing opened with references to ICE’s “vitriolic allegations and false accusations questioning the motives, competence, and conduct” of the DOJ and SEC.

The DOJ said it had shown ICE every courtesy during the Alcatel-Lucent investigation and enforcement action.

And contact between the DOJ and Costa Rican government included “multiple exchanges of information and evidence, in-person meetings, and phone calls and emails, and that collaboration has proven important for both governments in pursuing their respective parallel investigations.”

The cooperation even led to the conviction in Costa Rica of the country’s former president, Miguel Angel Rodriguez, and former ICE officials, the DOJ said.

Despite the DOJ’s good-faith approach, ICE accused the U.S. of an “imperialist” view of Latin America, the DOJ said.

The Costa Rican government received $10 million in restitution last year from Alcatel-Lucent France, S.A., for “moral damages” to the people of Costa Rica.

“This marked the first time in Costa Rica’s history that a foreign corporation paid the Costa Rican government damages for corruption,” the DOJ said.

What’s behind the “vitriolic allegations?”

The DOJ said it’s the target of ICE’s attacks “merely because the government has a good faith disagreement with ICE regarding its claim to victim status and right to restitution.” It also said ICE lost its claims for damages against Alcatel-Lucent in Costa Rican courts.

ICE isn’t a real victim under the U.S. law, the DOJ said. “The evidence gathered during the investigation suggests that corruption at ICE was pervasive in the tender process and occurred at the highest reaches of ICE.”

But even if ICE is a victim, restitution is limited to the victim’s “provable actual loss,” the DOJ said. That loss can’t be established within any reasonable time, if at all. So blocking resolution of the Alcatel-Lucent enforcement action doesn’t make sense.

The DOJ brief, signed by Charles Duross, head of the FCPA enforcement unit, concluded:

WHEREFORE, given ICE’s complicity in the corruption, the lack of a non-speculative loss amount, the complications and delay attendant to any restitution hearing, seeking restitution for complex civil contract issues, and the other recourse available to – and being pursued by – ICE in Costa Rica, the Court should decline ICE’s invitation to consider ICE a victim and to award restitution.

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Download a copy of the DOJ’s brief here, and Alcatel-Lucent’s brief here.

Download a copy of ICE’s May 2, 2011 petition for relief pursuant to 18 U.S.C. §3771(d)(3) and objection to plea agreements and deferred prosecution agreement in U.S. v. Alcatel-Lucent S.A. here.

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