sec v. james ruehlen (motion to dismiss)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Securities and Exchange Commission, Plaintiff, v. Mark A. Jackson et al., Defendants.

Civil Action No. 4:12-cv-00563

DEFENDANT JAMES J. RUEHLEN’S MOTION TO DISMISS

PLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CLAIM

AND MEMORANDUM IN SUPPORT THEREOF

Case 4:12-cv-00563 Document 36 Filed in TXSD on 05/08/12 of 35

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TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................. 1

A. Nature and Stage of the Proceeding ....................................................................... 1

B. Issues To Be Ruled upon by the Court .................................................................. 1

II. BACKGROUND ............................................................................................................... 1

A. Facts ....................................................................................................................... 1

B. The SEC’s Complaint ............................................................................................ 2

III. SUMMARY OF ARGUMENT ......................................................................................... 3

IV. STANDARD OF REVIEW ............................................................................................... 5

V. ARGUMENT ..................................................................................................................... 7

A. Claims 1 and 2 Must Be Dismissed Because Plaintiff Fails To Allege the Identity of the Involved Foreign Officials in Any Manner and Fails To Distinguish Between Facilitation Payments and Bribes. ......................... 7

1. The identity of the foreign official to whom bribes were allegedly made or authorized is an essential element of an FCPA violation. ......................................................................................... 7

2. All known contested FCPA bribery enforcement actions resulting in liability clearly and specifically identified the foreign officials. ......................................................................................... 9

3. The Complaint fails to identify the foreign officials to whom payments were allegedly authorized. ....................................................... 11

B. Claims 1 and 2 Must Be Dismissed Because Plaintiff Fails To Allege that Mr. Ruehlen Acted Corruptly. ...................................................................... 13

1. The Complaint fails to allege corrupt intent because it does not plead facts showing the requirements of Nigerian law and facts showing that Mr. Ruehlen sought to influence Nigerian officials to violate their official duties on Noble’s behalf. ...................... 13

2. The SEC’s allegations that Mr. Ruehlen sought and followed the advice of Noble’s senior management negate any inference that he acted corruptly. ............................................................................. 15


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C. Claims 1 and 2 Must Be Dismissed Because the FCPA’s Facilitation Payment Exception Is Unconstitutionally Vague as Applied to Mr. Ruehlen. ........................................................................................................ 17

D. Claims 3 and 4 Must Be Dismissed Because the SEC Fails To Identify the False Book, Record, or Account, or the Circumvented Control, and Because Any Alleged Violations Are Derivative of the Underlying Bribery Allegations. .......................................................................... 21

E. Plaintiff’s Claims and Supporting Allegations Must Be Dismissed Because They Rely on Untimely Allegations that Fall Outside the Statute of Limitations. .......................................................................................... 23

VI. CONCLUSION ................................................................................................................ 25


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TABLE OF AUTHORITIES

Cases

Abramo v. Teal, Becker & Chiaramonte, No. 09-cv-269 (N.D.N.Y. May 12, 2010) ................................................................................. 24

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................................ 6, 11, 12

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................... 4, 6, 12, 21

Bell v. Bank of Am. Home Loan Servicing LP, No. 11-cv-2085, 2012 WL 568755 (S.D. Tex. Feb. 21, 2012) ................................................. 13

Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995) ........................................................................................................ 5

Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440 (5th Cir. 1986) ...................................................................................................... 6

Citicorp Int’l Trading Co. v. W. Oil & Ref. Co., 771 F. Supp. 600 (S.D.N.Y. 1991) ........................................................................................... 10

Citicorp Int’l Trading Co. v. W. Oil & Ref. Co., No. 88-5377, 1991 WL 4502 (S.D.N.Y. Jan. 16, 1991) ........................................................... 10

Cuvillier v. Taylor, 503 F.3d 397 (5th Cir. 2007) ................................................................................................ 6, 21

Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir. 1976) .................................................................................................... 18

Gates & Fox Co. v. OSHRC, 790 F.2d 154 (D.C. Cir. 1986) .................................................................................................. 18

Gen. Elec. Co. v. EPA, 53 F.3d 1324 (D.C. Cir. 1995) .................................................................................................. 18

Gentilello v. Rege, 627 F.3d 540 (5th Cir. 2010) .................................................................................................... 14

Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................................................................................ 20, 21

Harvey v. Montgomery Cnty., No. 11-cv-1815, 2012 WL 1551337 (S.D. Tex. Apr. 30, 2012) ................................................. 6


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Higginbotham v. Mobil Oil Corp., 302 F. Supp. 857 (E.D. La. 1969), rev’d on other grounds, 436 F.2d 8 (5th Cir. 1970) ............ 6

Howard v. SEC, 376 F.3d 1136 (D.C. Cir. 2004) ................................................................................................ 17

Inturri v. City of Hartford, 365 F. Supp. 2d 240 (D. Conn. 2005) ....................................................................................... 20

Kellogg v. N.Y. State Dep’t of Corr. Servs., No. 07-cv-2804, 2009 WL 2058560 (S.D.N.Y. July 15, 2009) ................................................ 24

Larson v. Northrop Corp., 21 F.3d 1164 (D.C. Cir. 1994) .................................................................................................. 24

Okpalobi v. Foster, 190 F.3d 337 (5th Cir. 1999) .............................................................................................. 18, 21

Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004) ..................................................................................................... 20

Reno v. ACLU, 521 U.S. 844 (1997) .................................................................................................................. 20

Se. Banking Corp., 69 F.3d 1539 (11th Cir. 1995) .................................................................................................. 24

SEC v. Benton, No. 09-cv-3963 (S.D. Tex. Dec. 11, 2009) ............................................................................... 10

SEC v. Brown, 740 F. Supp. 2d 148 (D.D.C. 2010) .......................................................................................... 24

SEC v. Coffman, No. 06-cv-00088, 2007 U.S. Dist. LEXIS 61,347 (D. Colo. Aug. 21, 2007) ........................... 23

SEC v. First Fin. Grp. of Tex., 645 F.2d 429 (5th Cir. 1981) .................................................................................................... 24

SEC v. Fraser, No. 09-cv-443, 2010 WL 5776401 (D. Ariz. Jan. 28 2010) ..................................................... 21

SEC v. Jones, 476 F. Supp. 2d 374 (S.D.N.Y. 2007) ...................................................................................... 24

SEC v. Mattson, No. 01-cv-3106 (S.D. Tex. Sept. 11, 2001) .............................................................................. 10


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SEC v. Microtune, Inc., 783 F. Supp. 2d 867 (N.D. Tex. 2011), appeal docketed, No. 11-10594 (5th Cir. June 21, 2011) ............................................................................................................ 23

SEC v. Noble Corp., No. 10-cv-4336 (S.D. Tex. Nov. 4, 2010) ................................................................................ 25

SEC v. O’Rourke, No. 12-cv-564 (S.D. Tex. Feb. 24, 2012) ............................................................................. 1, 25

SEC v. Shanahan, 646 F.3d 536 (8th Cir. 2011) .................................................................................................... 17

SEC v. Tambone, 417 F. Supp. 2d 127 (D. Mass. 2006) ....................................................................................... 12

SEC v. Yuen, 221 F.R.D. 631 (C.D. Cal. 2004) .............................................................................................. 12

Solis v. Bruister, No. 10-cv-00077, 2012 WL 776028 (S.D. Miss. Mar. 8, 2012) ............................................... 24

Stichting ter Behartiging van de Belangen van Oudaandeelhouders in het Kapitaal van

Saybolt Int’l v. Schreiber, 327 F.3d 173 (2d Cir. 2003) ................................................................................................. 4, 13

Summer v. Land & Leisure, Inc., 664 F.2d 965 (Former 5th Cir. 1981) ........................................................................................ 24

United States v. Blondek, 741 F. Supp. 116 (N.D. Tex. 1990) ............................................................................................ 8

United States v. Classified Parking Sys., 213 F.2d 631 (5th Cir. 1954) ...................................................................................................... 6

United States v. Core Labs., Inc., 759 F.2d 480 (5th Cir. 1985) .................................................................................................... 23

United States v. Hoechst Celanese Corp., 128 F.3d 216 (4th Cir. 1997) .............................................................................................. 18, 20

United States v. Kay, 359 F.3d 738 (5th Cir. 2004) .......................................................................................... 8, 14, 20

United States v. Kay, 513 F.3d 432 (5th Cir. 2007) ................................................................................................ 4, 13


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United States v. Lake, 472 F.3d 1247 (10th Cir. 2007) ................................................................................................ 23

United States v. Lanier, 520 U.S. 259 (1997) .................................................................................................................. 17

United States v. Liebo, 923 F.2d 1308 (8th Cir. 1991) .................................................................................................. 16

United States v. Manapat, 928 F.2d 1097 (11th Cir. 1991) ................................................................................................ 18

United States v. O’Shea, No. 09-cr-629 (S.D. Tex. Jan. 16, 2012) ................................................................................ 8, 9

United States v. Outler, 659 F.2d 1306 (Former 5th Cir. 1981) ........................................................................................ 7

United States v. Poly-Carb, Inc., 951 F. Supp. 1518 (D. Nev. 1996) .............................................................................................. 7

Zander v. Citibank, No. 88-cv-5377, 1991 WL 11695066 (S.D.N.Y. Feb. 14, 1991) ............................................. 10

Statutes, Regulations, and Legislative History

15 U.S.C. § 78dd-1 ................................................................................................. 3, 4, 8, 9, 15, 20

15 U.S.C. § 78m ........................................................................................................................ 3, 26

15 U.S.C. § 78t(e) ........................................................................................................................... 3

18 U.S.C. § 201 ............................................................................................................................. 22

28 U.S.C. § 2462 ....................................................................................................................... 6, 27

17 C.F.R. § 240.12b2-1 ................................................................................................................... 3

Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213 (1977)............................................. 10

Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418 (1988) ........................ 10

Rules

Fed. R. Civ. P. 12(b)(6)............................................................................................................. 1, 16

Fed. R. Civ. P. 8 ........................................................................................................................ 4, 25

Fed. R. Civ. P. 8(a)(2) ..................................................................................................................... 6


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Other Authorities

16 C.J.S. Constitutional Law § 187 (2012) ................................................................................... 22

5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1215 (3d ed. 2004 Supp. 2011) ...................................................................................................................... 14

Richard Grime & Sara Zdeb, The Illusory Facilitating Payments Exception: Risks Posed

by Ongoing FCPA Enforcement Actions and the U.K. Bribery Act, in 1883 PLI/CORP 377 (2011) ................................................................................................................................. 22

SEC Action Against Baker Hughes Incorporated’s Former Chief Financial Officer and

Controller Is Concluded, Litig. Rel. No. 18863 (Sept. 1, 2004) .............................................. 27


I. INTRODUCTION

A. Nature and Stage of the Proceeding

On February 24, 2012, Plaintiff, the U.S. Securities and Exchange Commission (“SEC”),

filed suit against James J. Ruehlen, a current employee of Noble Corporation (“Noble”) (Compl.

¶ 13), a publicly traded offshore oil and gas drilling contractor with annual revenues of $2.7

billion,1 and against former Noble CEO and CFO Mark A. Jackson (id. ¶ 5) and former Noble

Director of Internal Audit and Controller Thomas F. O’Rourke,2 alleging violations of the anti-

bribery and accounting provisions of the Foreign Corrupt Practices Act (“FCPA”). Mr. Ruehlen

waived service of the Complaint on March 9, 2012.

B. Issues To Be Ruled upon by the Court

Presently before the Court is Mr. Ruehlen’s Motion to Dismiss all four claims against

him for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).

II. BACKGROUND

A. Facts3

Mr. Ruehlen, a high school graduate who never attended college or received any formal

audit, finance, or legal education, entered the oil industry in 1979 as a roustabout, one of the

most junior positions in the industry. By September 2004, Mr. Ruehlen had become a mid-level

operations manager, who reported to and followed guidance from Noble’s senior executives. In

1 Noble Corp., Annual Report, at 2, 27 (Form 10-K) (Feb. 27, 2012).

2 The SEC’s claims against Mr. O’Rourke are set forth in a separate, settled complaint. SEC v. O’Rourke, No. 12-cv-564 (S.D. Tex. Feb. 24, 2012).

3 Because the Court must accept Plaintiff’s allegations as true for the limited purpose of this Motion, Mr. Ruehlen discusses them as if they are true. In fact, they are not. Although the background facts set forth in this Section are not challenged by the SEC, to the extent that they are not obvious from the SEC’s Complaint, this Court need not rely on them in deciding to grant Mr. Ruehlen’s Motion to Dismiss.


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that capacity, the SEC claims, Mr. Ruehlen authorized the payment of “special handling” charges

to a private customs agent to fund payments to Nigerian government officials to secure

temporary importation permits (“TIPs”) and TIP extensions from the Nigerian Customs Service

(“NCS”) to enable Noble’s offshore oil rigs to operate in Nigeria pursuant to existing drilling

contracts. Noble’s subsidiary in Nigeria booked these special handling charges as legitimate

operating expenses, i.e., as “facilitation payments,” in an account dedicated for such payments.

On two separate occasions, Mr. Ruehlen raised the propriety of Noble’s process for

securing TIPs with Noble’s senior management. First, in early 2004, he raised the issue to

Noble’s Director of Internal Audit and understood that management would assess the practice.

Second, in May 2007, Mr. Ruehlen re-raised the issue when he learned that another drilling

contractor in Nigeria was conducting an internal review of its similar process for securing TIPs.

After Mr. Ruehlen sought guidance in May 2007, Noble conducted an internal investigation and

self-disclosed its practices to the SEC and U.S. Department of Justice (“DOJ”).4 In November

2010, following an industry-wide investigation, Noble and six other oil services and freight

forwarding companies settled alleged FCPA violations with the SEC without admitting or

denying liability.5 Despite the fact that Noble received the least severe penalty of the companies

charged by the SEC as a result of this industry-wide investigation, the only action taken by the

SEC against individuals are the cases against Mr. Ruehlen, Mr. Jackson, and Mr. O’Rourke.

B. The SEC’s Complaint

As to Claim 1, the Complaint alleges that Noble, through Mr. Ruehlen, “authorized its

4 Noble Press Release, Noble Announces Independent Investigation of Operations in Nigeria (June 4, 2007), http://phx.corporate-ir.net/phoenix.zhtml?c=98046&p=irol-newsArticle&ID=1010656 &highlight=; Complaint ¶ 28, SEC v. Noble Corp., No. 10-cv-4336 (S.D. Tex. Nov. 4, 2010).

5 SEC Press Release 2010-214, SEC Charges Seven Oil Services and Freight Forwarding Companies for Widespread Bribery of Customs Officials (Nov. 4, 2010), http://www.sec.gov/news/press/2010/2010-214.htm.


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customs agent to pay bribes on Noble’s . . . behalf to Nigerian government officials to influence

or induce them” to grant TIPs based on “false paperwork” and “grant[] extensions to these illicit

TIPs” to “retain business under drilling contracts in Nigeria,” in violation of the anti-bribery

provisions of the FCPA [15 U.S.C. § 78dd-1]. (Compl. ¶¶ 2, 150-52.) Claim 2 alleges that,

based on the conduct alleged in Claim 1, Mr. Ruehlen aided and abetted Noble’s bribery [15

U.S.C. § 78t(e)]. (Compl. ¶¶ 153-56.) As to Claim 3, the Complaint alleges that Mr. Ruehlen

aided and abetted Noble’s failures to make and keep accurate books, records, and accounts [15

U.S.C. § 78m(b)(2)(A)] and to devise and maintain internal accounting controls [15 U.S.C.

§ 78m(b)(2)(B)]. (Compl. ¶¶ 157-63.) Finally, Claim 4 alleges that Mr. Ruehlen knowingly

circumvented Noble’s internal controls and falsified or caused to be falsified Noble’s books,

records, and accounts in violations of the accounting provisions of the FCPA and Rule 13b2-1

thereunder [15 U.S.C. § 78m(b)(5) and 17 C.F.R. § 240.12b2-1]. (Compl. ¶¶ 164-67.) As set

forth below, the Complaint fails to state a claim.

III. SUMMARY OF ARGUMENT

Despite the repetition of the word “bribe” fifty-three times in its Complaint, Plaintiff fails

to allege a violation of law. The FCPA distinguishes between prohibited corrupt payments made

to obtain or retain business (i.e., bribes), 15 U.S.C. § 78dd-1(a), and permissible payments to

“secure the performance of a routine governmental action,” such as “obtaining permits, licenses,

or other official documents” or for “processing governmental papers” (i.e., facilitation

payments), 15 U.S.C. § 78dd-1(b), (f)(3). The Complaint assumes that all payments to foreign

officials are per se illegal bribes, never acknowledging the FCPA’s exception for facilitation

payments.


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The distinction between a permissible facilitation payment and an unlawful bribe turns on

the purpose and effect of the payment, namely whether it is being made to induce the recipient to

act improperly based on his or her particular role, duties, or responsibilities in order to obtain or

retain business—facts that the SEC must allege to state a claim. Despite investigating this matter

for nearly five years, the SEC apparently does not know—and therefore cannot allege—the

identity, role, duties, or responsibilities of any “Nigerian government officials” to whom Noble

or Mr. Ruehlen allegedly authorized payments. By failing to identify the particular foreign

officials to whom Noble and Mr. Ruehlen allegedly authorized payments, Mr. Ruehlen and this

Court are simply left to guess whether the alleged unidentified government officials had the

power to assist Noble in obtaining or retaining business by engaging in non-routine

governmental action, as the statute requires. Accordingly, the SEC fails to satisfy its burden of

pleading plausible facts under Federal Rule of Civil Procedure 8 and Twombly that the payments

at issue were prohibited bribes under the FCPA, rather than lawful facilitation payments.

Second, without identifying the intended recipients of the alleged payments or alleging

facts showing how these officials abused their authority on Noble’s behalf, Plaintiff fails to

allege that Mr. Ruehlen acted “corruptly,” that is, with “a bad purpose or evil motive,” United

States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007), or with the “intent to influence a foreign official

to misuse his official position.” Stichting ter Behartiging van de Belangen van

Oudaandeelhouders in het Kapitaal van Saybolt Int’l v. Schreiber, 327 F.3d 173, 183 (2d Cir.

2003). To the contrary, the Complaint shows that Mr. Ruehlen reasonably believed that the

payments were proper because, among other things, they had been reviewed and approved by

Noble’s senior management who were tasked with ensuring Noble’s compliance with the FCPA


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and approving facilitation payments. The failure to plausibly allege facts showing corrupt intent

provides an independent basis to dismiss the claims against Mr. Ruehlen.

Third, to the extent that Plaintiff’s first and second claims against Mr. Ruehlen survive

these challenges, the Court must nevertheless dismiss them because the law in effect at the time

failed to give Mr. Ruehlen “fair notice” of the interpretation now being advanced by the SEC in

this case. In addition, the SEC’s strained and subjective interpretation of the FCPA’s facilitation

payment exception makes it impossible for well-intentioned individuals to navigate between

lawful and unlawful conduct and, therefore, is unconstitutionally vague as applied to

Mr. Ruehlen.

Fourth, Claims 3 and 4 must be dismissed because the SEC fails to specify the particular

book, record, or account that it claims Mr. Ruehlen knowingly falsified (or unreasonably caused

to be false) or the particular internal control that he allegedly knowingly circumvented.

Additionally, to the extent that the alleged violations refer to Noble’s decision to treat the special

handling fees as facilitation payments rather than bribes, these violations are entirely predicated

on the underlying FCPA violations alleged in Claims 1 and 2.

Finally, this action is governed by the five-year statute of limitations set forth in

28 U.S.C. § 2462. Because the claims against Mr. Ruehlen are principally based on alleged

conduct that occurred outside the limitations period and because the SEC raises no basis for

tolling, they are time-barred and must be dismissed.

IV. STANDARD OF REVIEW

Dismissal of a complaint is appropriate when it “lacks an allegation regarding a required

element necessary to obtain relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.

1995). Although a complaint must contain only “a short and plain statement of the claim


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showing that the pleader is entitled to relief” under Federal Rule of Civil Procedure 8(a)(2), it

“must fairly apprise the defendant of the precise nature of the claim” to enable the defendant to

prepare a “proper defense.” Higginbotham v. Mobil Oil Corp., 302 F. Supp. 857, 861 (E.D. La.

1969), rev’d on other grounds, 436 F.2d 8 (5th Cir. 1970) (emphasis added); United States v.

Classified Parking Sys., 213 F.2d 631, 633 (5th Cir. 1954) (“[A] defendant is entitled to know

the extent of the claim being made against him, as well as its nature.”).

Under recent Supreme Court guidance, a plaintiff “must provide the plaintiff’s grounds

for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right

to relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). That is, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly). And a complaint achieves facial

plausibility only “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678-79

(emphasis added). Accordingly, the plaintiff must put forth more than “labels and conclusions.”

Twombly, 550 U.S. at 555; Harvey v. Montgomery Cnty., No. 11-cv-1815, 2012 WL 1551337, at

*5 (S.D. Tex. Apr. 30, 2012) (“The court should not strain to find inferences favorable to the

plaintiffs or accept conclusory allegations, unwarranted deductions, or legal conclusions.”

(internal quotes and citations omitted)). Moreover, the Court may not assume that a plaintiff can

prove facts not alleged. Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 443 (5th Cir. 1986).


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V. ARGUMENT

A. Claims 1 and 2 Must Be Dismissed Because Plaintiff Fails To Allege the

Identity of the Involved Foreign Officials in Any Manner and Fails To

Distinguish Between Facilitation Payments and Bribes.

The FCPA does not prohibit all payments to foreign officials. Indeed, the statute

explicitly exempts from its prohibitions payments to foreign officials to secure “routine

governmental action,” commonly referred to as facilitation payments. See 15 U.S.C.

§ 78dd-1(b), (f)(3). Unlike the FCPA’s two affirmative defenses, 15 U.S.C. § 78dd-1(c),

Congress deliberately chose to treat facilitation payments as an exception to the FCPA’s

substantive prohibitions, meaning that the Plaintiff bears the burden of pleading and proving that

the facilitation payment exception does not apply. See, e.g., United States v. Outler, 659 F.2d

1306, 1309-10 (Former 5th Cir. 1981) (dismissing a criminal conviction against a defendant

because the government failed to plead that a statutory exception did not apply, an “essential

element” of the offense), cert. denied, 455 U.S. 950 (1982); United States v. Poly-Carb, Inc., 951

F. Supp. 1518, 1526 n.6 (D. Nev. 1996) (holding that “Plaintiff bears the burden” of

demonstrating that the “exclusion does not apply” because the “exclusion does not appear as one

of the [statutory] affirmative defenses”). Plaintiff’s Complaint fails to distinguish between

illegal bribes and legal facilitation payments, as if all payments to officials are unlawful,

regardless of their purpose. Moreover, the Complaint fails even to identify which foreign

officials received payments, much less their role, duties, or responsibilities.

1. The identity of the foreign official to whom bribes were allegedly

made or authorized is an essential element of an FCPA violation.

An essential “element[] of a violation of the FCPA” is “the identity . . . of the officials to

whom the suspect payments are made.” United States v. Kay, 359 F.3d 738, 760 (5th Cir. 2004)

(emphasis added). There are two “necessary parties” to a violation of the FCPA’s anti-bribery


8

provisions: “the [person] paying the bribe and the foreign official accepting it.” United States v.

Blondek, 741 F. Supp. 116, 117 n.1 (N.D. Tex. 1990), aff’d and adopted by United States v.

Castle, 925 F.2d 831 (5th Cir. 1991). In addition, the facilitation payment exception states that

the FCPA’s prohibitions “shall not apply to any facilitating or expediting payment to a foreign

official . . . the purpose of which is to expedite or to secure the performance of a routine

governmental action by a foreign official . . . .” See 15 U.S.C. § 78dd-1(b). Whether a payment

to a particular foreign official is prohibited by the FCPA, therefore, depends on the official’s

identity, role, duties, and responsibilities, as established by law, based on that official’s office or

position. See Kay, 359 F.3d at 743. Accordingly, the Fifth Circuit has recognized that the FCPA

prohibits only payments “that prompt an official to deviate from his official duty.”6 Id. at 749

n.40 (emphasis added).

A recent U.S. District Court for the Southern District of Texas decision confirms that the

SEC must identify the particular foreign official or officials to whom improper payments were

allegedly authorized. See No. 09-cr-629 (S.D. Tex. Jan. 16, 2012) (Hughes, J.) (excerpt attached

as Exhibit A). In that case, prosecutors alleged that Mr. O’Shea authorized bribes to Mexican

officials through an intermediary. Indictment, at 10, O’Shea (Nov. 16, 2009). At the close of the

government’s case-in-chief, Mr. O’Shea moved for a judgment of acquittal, arguing, in part, that

the identity of the Mexican officials that allegedly received the bribes had not been adequately

proven, despite the fact that the intermediary who allegedly made the payments was a

6 The FCPA originally excluded from the definition of “foreign official” those “whose duties are essentially ministerial or clerical.” Foreign Corrupt Practices Act of 1977, Pub. L. No. 95-213 (1977). In 1988, the FCPA was amended by removing the “ministerial or clerical” language from the definition of “foreign official” and creating an express exception for facilitation payments made to secure “routine governmental action,” reflecting Congress’ choice to preserve the importance of the identity of the foreign official as an element of an FCPA

claim. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418 (1988) (Foreign Corrupt

Practices Act Amendments).


9

cooperating government witness who testified at trial. In response, the prosecution vehemently

argued that it had met its burden: “[T]he FCPA makes it a crime to authorize. So we don’t need

to put the money into anybody’s pocket. It’s not required under the statute.” Trial Tr. at 217:12-

21, O’Shea (Jan. 16, 2012).7

Judge Hughes rejected this position and granted the Motion for Acquittal noting that

“[y]ou can’t convict a man promising to pay unless you have a particular promise to a particular

person for a particular benefit. If you call up the [intermediary] and say, [‘L]ook, I’m going to

send you 50 grand, bribe somebody,[’] that does not meet the statute.” Id. at 227:19-23. The

identity of the foreign official was an essential element: “While the Government does not have

to trace a particular dollar to a particular pocket of a particular official, it has to connect the

payment to a particular official . . . who can be identified in some reasonable way, that is, with

no reasonable doubt.” Id. at 248:18-24 (emphasis added).8

2. All known contested FCPA bribery enforcement actions resulting in

liability clearly and specifically identified the foreign officials.

Notably, in all known contested FCPA bribery enforcement actions that resulted in a

conviction of an individual defendant, the government has identified the involved foreign

officials by name or otherwise with precision. For the Court’s convenience, attached as Exhibit

B is a list of the nine such criminal FCPA enforcement actions, along with details regarding the

allegedly involved foreign officials. Likewise, the sole civil FCPA enforcement action against

an individual defendant that has been litigated past a motion to dismiss further proves the point.

In SEC v. Mattson, the SEC specifically identified the foreign official as one who demanded a

7 The prosecution reiterated variations of this argument to the court in its opposition, all of which were soundly rejected. See Trial Tr. at 216:16-24; 226:24-227:6; 228:3-9, O’Shea (Jan. 16, 2012).

8 The government subsequently moved to dismiss all claims against Mr. O’Shea. See Motion to Dismiss Count(s), O’Shea (Feb. 9, 2012).


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bribe during a series of specific meetings with company intermediaries about a particular tax

assessment.9 Compl. ¶¶ 7-8, No. 01-cv-3106 (S.D. Tex. Sept. 11, 2001).

Similarly, in private litigation, courts also have required claimants to properly allege the

identity of the foreign officials to establish a claim based on the FCPA. In Citicorp International

Trading Co. v. Western Oil & Refining Co., 771 F. Supp. 600, 606 (S.D.N.Y. 1991), the court

rejected a claim as “conclusory” and nothing more than “bare allegations” under Federal Rule of

Civil Procedure 8, because the defendant identified the alleged bribe recipients only as “officials

of foreign governments.” Citicorp Int’l Trading Co. v. W. Oil & Ref. Co., No. 88-5377, 1991

WL 4502, at *6 (S.D.N.Y. Jan. 16, 1991). The amended counterclaim was held to be

“sufficiently particular” because it “identif[ed] . . . the person to whom the bribes were offered.”

Citicorp, 771 F. Supp. at 606 (emphasis added).10

Here, after nearly five years of extensive investigation conducted with Noble’s full

cooperation, the SEC still cannot answer the questions that have been answered in every other

contested FCPA case to date: To which particular officials were the allegedly improper

payments made or authorized? What were their duties or responsibilities as a matter of law?

What unlawful actions were they asked to take based on their particular duties? As a result, the

Plaintiff has failed to plead adequate facts to enable the Court to draw the plausible inference that

9 Likewise, in SEC v. Benton, a case where the defendant answered the SEC’s allegations before settling, the SEC’s complaint alleged that money was paid to a specific Venezuelan official to obtain contract extensions, and that particular official was alleged to have the ability to block contract extensions sought by Benton’s employer. Compl. ¶¶ 16-18, No. 09-cv-3963 (S.D. Tex. Dec. 11, 2009). Separately, the complaint also alleged that Mr. Benton authorized payments to a specific Mexican customs official in exchange for lenient treatment on a specific inspection. Id. at ¶¶ 21-23.

10 See Zander v. Citibank, Amended Answer, Amended Counterclaim and Third-Party Complaint, No. 88-cv-5377, 1991 WL 11695066, at 18 (S.D.N.Y. Feb. 14, 1991) (“Mr. Horah instructed Mr. Shaw to make unauthorized and illegal payments to Mrs. Abdul-Rahman and other NNPC officials . . . .”).


11

any payments allegedly authorized by Mr. Ruehlen to unspecified foreign officials were the kind

of payments that even could violate the FCPA.

3. The Complaint fails to identify the foreign officials to whom payments

were allegedly authorized.

The Complaint fails to allege that Mr. Ruehlen (or anyone else at Noble) ever made or

even authorized any improper payments to any specific foreign officials. Rather, the Complaint

references the alleged foreign officials at issue using only the most generic of labels: “Nigerian

government officials” (e.g., Compl. ¶ 2), “Nigerian officials” (e.g., id. ¶ 22), “government

officials” (e.g., id. ¶¶ 24-26), “foreign government officials” (e.g., id. ¶ 38), “NCS officials”

(e.g., id. Heading D, at 14), and “foreign officials” (e.g., id. ¶ 49). But a “pleading that offers

labels . . . will not do.” Iqbal, 556 U.S. at 678 (internal quotes omitted). Plaintiff’s failure to

plead an essential element of an FCPA violation is fatal to its claims.

The burden is on the SEC to plead the identity—or at least the role, duties, and

responsibilities—of the foreign officials to whom the payments in question were allegedly

authorized in order to sufficiently plead that the payments do not fall within the statute’s

facilitation payment exception. By failing to do so, the SEC has not met its burden to plead

whether the unidentified officials engaged in only routine governmental actions, had authority to

award business to Noble, or violated their official duties under Nigerian law.

Although the identity of the foreign official is an essential element of every FCPA

enforcement action, it is paramount in this case because the payments at issue were approved by

Noble’s senior management (Compl. ¶¶ 83, 85, 88), including the CFO who “was responsible for

Noble’s compliance with the FCPA” (id. ¶ 9), as lawful facilitation payments to secure routine

governmental action. In light of these allegations, nebulous references to unidentified “Nigerian

government officials” are entirely insufficient because they leave Mr. Ruehlen and this Court to


12

guess whether those officials violated their lawful duties or engaged in non-routine governmental

action to assist Noble in obtaining or retaining business.11 The SEC’s failure here is particularly

glaring, as it subpoenaed documents and took sworn testimony before filing suit.12 The

Complaint’s complete lack of specific factual allegations identifying the intended recipients of

any improper payments or the alleged benefits to Noble severely prejudices Mr. Ruehlen’s

defense by rendering him unable to refute that the alleged payments were unlawful bribes, rather

than permissible facilitation payments.

Accordingly, Claims 1 and 2 must be dismissed because the SEC’s failure to identify the

alleged foreign official(s) to whom Noble and Mr. Ruehlen allegedly authorized payments in a

reasonably specific manner does not enable the Court to “draw the reasonable inference that the

defendant is liable for the misconduct alleged” or to assess whether the SEC has “a right to relief

above the speculative level.” Iqbal, 556 U.S. at 678. Because the Complaint fails to “nudge[]

[its] claim[] across the line from conceivable to plausible,” the Court should dismiss all claims

against Mr. Ruehlen. Twombly, 550 U.S. at 570.

11 The Complaint does not allege that the payment of special handling charges had any role in Noble obtaining new drilling contracts in Nigeria. Although the Complaint does allege in conclusory fashion that these “illicit” payments helped Noble “retain[] business under lucrative drilling contracts, obtain[ing] profits from operating rigs in Nigeria, . . . avoid[ing] paying permanent import duties on its rigs . . . avoid[ing] the operational costs of moving its rigs, and avoid[ing] possible breaches of drilling contracts” (Compl. ¶ 32), the SEC pleads no specific facts to support those conclusions. Further, not all payments that reduce operating costs to “increase the profitability of an already-profitable venture” satisfy the business nexus element of an FCPA offense. See

Kay, 359 F.3d at 759-60.

12 None of the transcripts of testimony taken by the SEC in its investigation, which the SEC recently provided to counsel for Mr. Ruehlen, identify the foreign officials to whom the payments at issue were made or authorized. Although all plaintiffs may be “required to perform some pre-[litigation] discovery in order to uncover enough facts to state a claim for relief” in light of Twombly and Iqbal, see 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1215 (3d ed. 2004 Supp. 2011), courts have particularly held the SEC to its burden in light of its “substantial pre-filing investigatory powers.” See SEC v. Tambone, 417 F. Supp. 2d 127, 131 (D. Mass. 2006) (considering the fact that the SEC had “taken the testimony of at least 23 witnesses and conducted extensive document discovery” in dismissing the SEC’s complaint); SEC v. Yuen, 221 F.R.D. 631, 637 (C.D. Cal. 2004) (dismissing the SEC’s second amended complaint).


13

B. Claims 1 and 2 Must Be Dismissed Because Plaintiff Fails To Allege that

Mr. Ruehlen Acted Corruptly.

To prove that Mr. Ruehlen violated the anti-bribery provisions of the FCPA, Plaintiff

must show that Mr. Ruehlen acted “corruptly,” 15 U.S.C. § 78dd-1(a), meaning that he acted

“knowingly and dishonestly, with the specific intent to achieve an unlawful result by influencing

a foreign official’s action in one’s own favor.” Kay, 513 F.3d at 449 (emphasis added). A

defendant does not act corruptly under the FCPA if he does not intend to “require the official to

misuse his position or breach his duties.” Stichting, 327 F.3d at 183. By failing to allege who

the foreign officials were, what the scope and bounds of their official duties were under Nigerian

law (and what Nigerian laws even apply), and how they breached those duties for Noble’s

benefit, the Complaint fails to allege that Mr. Ruehlen acted with the evil motive necessary to

make out a claim. To the contrary, the Complaint specifically alleges that Mr. Ruehlen sought

and followed the advice of Noble’s senior management, including those responsible for FCPA

compliance. Such conduct negates any inference that Mr. Ruehlen acted corruptly. See Bell v.

Bank of Am. Home Loan Servicing LP, No. 11-cv-2085, 2012 WL 568755, at *3 (S.D. Tex. Feb.

21, 2012) (Ellison, J.) (dismissing a complaint in part because certain factual allegations

“undermine[d]” the plaintiff’s claims).

1. The Complaint fails to allege corrupt intent because it does not plead

facts showing the requirements of Nigerian law and facts showing that

Mr. Ruehlen sought to influence Nigerian officials to violate their

official duties on Noble’s behalf.

As set forth in Section V.A, the SEC fails to identify any Nigerian official or officials and

describe how those unidentified officials misused their positions or breached their duties to

Noble’s benefit, an essential component of the corrupt intent element under the FCPA. Stichting,

327 F.3d at 183.


14

To be sure, the SEC asserts that Noble’s process for securing TIPs violated Nigerian law

in some way (see, e.g., Compl. ¶¶ 19-22, 54, 128), but the Complaint fails to identify what

Nigerian laws and regulations apply, what the applicable requirements are, and what elements

must be pleaded to show a violation. As pleaded, the requirements of Nigerian law are posited

as mere legal conclusions that fail to establish any factual basis for the proposition that

Mr. Ruehlen, Noble, or the alleged foreign officials engaged in conduct that satisfies even a

single element—much less all of the requisite elements—of an offense under Nigerian law.

Absent that, the Court lacks a basis to accept the SEC’s assertions that the payments at issue

were necessarily bribes paid to influence or induce a Nigerian official to violate his or her

official duties and that Noble’s process for securing TIPs was necessarily illegal under Nigerian

law. See Gentilello v. Rege, 627 F.3d 540, 545 (5th Cir. 2010) (affirming dismissal under Rule

12(b)(6) because the complaint failed to “substantiate” its “mere conclusory statements” of law

“by pointing to any ordinance, official policy, state or local law, contract, or other enforceable

agreement to support [plaintiff’s] claim”).

By failing to allege the requirements of Nigerian law governing TIPs, the SEC simply

cannot identify “the sought-after unlawful actions taken or not taken by the foreign official in

consideration of the bribes,” Kay, 359 F.3d at 760, or show that any Nigerian officials engaged in

non-routine governmental action in violation of their official duties. The SEC never explains

what roles, duties, or responsibilities were held by the various unidentified Nigerian officials to

whom Mr. Ruehlen allegedly authorized payments or which of those officials, if any, had

authority or discretion to grant a TIP or TIP extension for rigs currently in Nigerian waters on

previously-won drilling contracts. (See Compl. ¶¶ 2, 18, 32.) Absent a plausible factual basis


15

that Noble and Mr. Ruehlen were seeking to secure TIPs through some unlawful means, the

Complaint fails to allege corrupt intent and must be dismissed.

Although the Complaint repeatedly claims that Noble relied on “false paperwork” to

secure certain TIPs (e.g., id. ¶¶ 2, 27, 45, 68, 101) and concludes that Noble and Mr. Ruehlen

must have therefore knowingly violated unspecified Nigerian laws by making corrupt payments

(id. ¶¶ 45, 47, 73, 81, 89, 101, 110, 115, 123), the SEC fails to put forth plausible facts

suggesting that Noble’s process for securing TIPs was illegal, rather than just a legal fiction in

Nigeria’s byzantine law, created and facilitated by NCS officials through licensed customs

brokers. Indeed, the facts alleged in the Complaint show that Noble made payments to secure all

TIPs and TIP extensions, regardless of whether “false paperwork” was involved. (See, e.g.,

Compl. ¶¶ 2, 27, 31, 101 (variously alleging that Noble made payments to officials to secure

TIPs based on “false paperwork” and to obtain TIP extensions).) Moreover, the Complaint

makes clear that Noble’s licensed customs agent directed the use of false paperwork and

prepared the false documentation that supported Noble’s TIP applications. (See, e.g., id. ¶ 2

(describing Mr. Ruehlen as only “assist[ing] the customs agent in preparing false documents”)

(emphasis added); id. ¶ 136 (describing an invoice from a customs agent for “charges for

preparing false documents showing export of the rigs”) (emphasis added).) Absent plausible

facts suggesting that Noble sought to secure TIPs in violation of Nigerian law and paid Nigerian

officials to misuse their authority, the SEC fails to allege that Mr. Ruehlen acted corruptly and

thus fails to state a claim.

2. The SEC’s allegations that Mr. Ruehlen sought and followed the

advice of Noble’s senior management negate any inference that he

acted corruptly.

Although the Complaint fails to explain the laws governing issuance of TIPs and TIP

extensions in Nigeria, it does make one thing clear: Mr. Ruehlen authorized special handling


16

charges to Noble’s customs agent to secure TIPs only with the full knowledge and consent of

Noble’s senior management. For example, the SEC acknowledges that Noble’s process for

securing TIPs, including through the use of false paperwork, was reviewed and approved by

members of Noble’s senior management, including its CFO and the Director of Internal Audit

(Compl. ¶¶ 83-85, 88), after Mr. Ruehlen raised the issue of their propriety to the Director of

Internal Audit and “summarized in writing” Noble’s “practice of using false paperwork and

paying about $75,000 every two years to the customs agent for false paperwork TIPs” (id. ¶ 47).

In addition, the Complaint alleges that Mr. Ruehlen emailed his direct supervisor, Noble’s Vice

President of Eastern Hemisphere Operations, to report that Noble “decided to resume the use of

false paperwork and related payments to government officials to obtain TIPs.” (Id. ¶ 71.)

Further, the Complaint alleges that, over a period of two years, Mr. Ruehlen repeatedly sought

and received approval to pay special handling charges to Noble’s customs agent from Noble’s

Vice President of Eastern Hemisphere Operations, Noble’s Director of Internal Audit and

Controller, at least three different CFOs who were charged with ensuring Noble’s FCPA

compliance and with reviewing and approving facilitation payments, and another unnamed

Noble executive. (See id. ¶¶ 9, 23-24, 60, 71, 82-85, 88, 91, 93-94, 98, 102, 104, 107, 115-16,

123-24, 127.)

A subordinate’s good faith reliance on directions from superiors negates his corrupt intent

under the FCPA. See United States v. Liebo, 923 F.2d 1308, 1314 (8th Cir. 1991) (granting

defendant a new trial based on newly discovered evidence that the defendant’s superior had, in

fact, authorized all of the allegedly improper payments, thereby providing “strong evidence” that

the defendant acted “at his supervisor’s direction and therefore, did not act ‘corruptly’”). In

other contexts, courts have routinely held that mid-level employees are entitled to reasonably


17

rely on instructions from senior corporate officers with access to legal and accounting experts,

even if the approved conduct is later found to be improper. See, e.g., SEC v. Shanahan, 646 F.3d

536, 544-45 (8th Cir. 2011); Howard v. SEC, 376 F.3d 1136, 1146-49 (D.C. Cir. 2004). As the

Complaint makes clear, Mr. Ruehlen consistently sought and received approval to pay special

handling charges from the members of senior management who were specifically tasked with

determining whether facilitation payments were proper under the FCPA. This strongly negates

any inference of corrupt intent.

C. Claims 1 and 2 Must Be Dismissed Because the FCPA’s Facilitation Payment

Exception Is Unconstitutionally Vague as Applied to Mr. Ruehlen.

As set forth above, the FCPA specifically allows facilitation payments to foreign officials

to obtain permits. 15 U.S.C. § 78dd-1(b), (f)(3). And Mr. Ruehlen, relying on Noble’s senior

management, clearly believed that payments for TIPs fell within this exception. At the time of

his actions, the law did not give him “fair notice” to the contrary. The SEC’s subjective

interpretation of the FCPA, as set forth in the Complaint, is not based on any published rule—

much less one developed through notice and comment—and is therefore plagued with

uncertainty and fails to provide fair warning regarding which payments are legal facilitation

payments and which payments are illegal bribes. Accordingly, the anti-bribery provisions of the

FCPA are unconstitutionally vague as applied to Mr. Ruehlen, and the claims against him must

be dismissed.

A statute that is ambiguous or that fails to give “fair notice” of its clear meaning cannot

support punitive governmental action. See, e.g., United States v. Lanier, 520 U.S. 259, 266-67

(1997) (holding that “the vagueness doctrine bars enforcement of a statute which . . . forbids . . .

an act in terms so vague that men of common intelligence must necessarily guess at its meaning

and differ as to its application” and noting that the “touchstone” of fair warning is whether it was


18

“reasonably clear at the relevant time” that a defendant’s conduct was prohibited by the statute

(internal quotes omitted)); Okpalobi v. Foster, 190 F.3d 337, 357 (5th Cir. 1999) (applying the

vagueness doctrine in a civil case). That is, when the government fails to give “fair notice” in

advance of its interpretation of a vague or ambiguous regulation, the government cannot punish

those who follow a different, reasonable interpretation for “violations” occurring before the

government made its interpretation clear. See, e.g., United States v. Hoechst Celanese Corp.,

128 F.3d 216, 225-27 (4th Cir. 1997) (holding that no penalty can be imposed if the defendant

“had reason to believe” based on “the facts as they appear to [the defendant,] not to the

[agency],” that the defendant’s interpretation of the regulation was accurate, and vacating

penalties imposed before the EPA clarified its interpretation of the regulation at issue because the

“plain language” of the regulation did not “clearly” give advance notice of the agency’s

interpretation).

Courts have repeatedly rejected prosecutions over laws less ambiguous than the FCPA.

See, e.g., Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 648 (5th Cir. 1976) (holding that a

regulation requiring railings on “open-sided floors” was too ambiguous to support a penalty for

unprotected “roofs”); Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1331 (D.C. Cir. 1995) (barring a civil

penalty because EPA’s interpretation of the Toxic Substances Control Act was not “ascertainably

certain” from the regulation and did not provide fair notice); Gates & Fox Co. v. OSHRC, 790

F.2d 154, 157-58 (D.C. Cir. 1986) (vacating penalty where company interpreted a regulation

requiring safety equipment in “areas where employees might be trapped by smoke or gas” as

applying only to certain areas because of the lack of fair warning of a contrary interpretation);

see also United States v. Manapat, 928 F.2d 1097, 1101 (11th Cir. 1991) (affirming dismissal of


19

a false statements indictment arising from an inaccurate written response to a “fundamentally

ambiguous” question on a form).

An as-applied vagueness challenge to the constitutionality of a statute “is evaluated

considering how it operates in practice against the particular litigant.” 16 C.J.S. Constitutional

Law § 187 (2012).

There can be no dispute here that (a) the facilitation payment exception specifies no

monetary threshold above which payments are per se improper, (b) there is no analogous

exception in the domestic bribery statute (18 U.S.C. § 201), (c) the courts have not squarely

confronted application of the facilitation payment exception, and (d) there is no clear, published

guidance as to what the words of the exception mean and what the limits, if any, are. See

Richard Grime & Sara Zdeb, The Illusory Facilitating Payments Exception: Risks Posed by

Ongoing FCPA Enforcement Actions and the U.K. Bribery Act, in 1883 PLI/CORP 377

(2011).13 Indeterminate on its face, the SEC’s interpretation is even less determinate in

application.

Here, the SEC alleges that payments for TIPs are unlawful bribes and not facilitation

payments, even though the FCPA lists payments made to obtain permits as among those covered

by the facilitation payment exception. Nothing in the Complaint shows that Mr. Ruehlen (or any

other reasonable person) could have known that any payments were intended for specific

officials with particular discretionary authority to award Noble business or approve or deny

13 See also Organization for Economic Co-operation and Development (“OECD”), United States: Phase 2 Report On Application Of The Convention On Combating Bribery Of Foreign Public Officials In International Business Transactions And The 1997 Recommendation On Combatting Bribery In International Business Transactions, ¶¶ 114-15 (Oct. 2002), http://www.oecd.org/dataoecd/52/19/1962084.pdf. The OECD reviews the anti-bribery laws of signatory countries to its anti-bribery convention, including the United States. As far back as 2002, the OECD recommended that the United States issue guidance “to explain the tests it applies in practice to assist in the interpretation of this exception” or amend the statute to clarify whether “only minor payments are allowable.” Id. ¶ 116, Commentary.


20

Noble’s TIP applications, rather than permissible facilitation payments to induce those officials

to discharge their ordinary responsibilities.14 Thus, there is no discernible—much less “clearly

defined”—reason why the facilitation payment exception does not apply here. Grayned v. City

of Rockford, 408 U.S. 104, 108-09 (1972).

Moreover, the SEC concedes that Mr. Ruehlen acted at the direction of the members of

Noble’s senior management, who were specifically tasked with ensuring FCPA compliance and

who approved the payment of “special handling charges” in connection with TIPs, and booked

those payments accordingly as facilitation payments. (See, e.g., Compl. ¶¶ 23-24, 60, 71, 79,

82-88, 103, 107, 111, 113-15, 120-21, 124, 129.)15 Under these circumstances, Mr. Ruehlen

could not possibly have foreseen that, years later, the SEC would allege that his authorization of

payments at management’s behest constituted unlawful bribery. The “uncertain sweep” of

Plaintiff’s position in this case renders the FCPA, as applied to Mr. Ruehlen, unconstitutionally

vague. See Reno v. ACLU, 521 U.S. 844, 873 (1997). And, even if the SEC’s interpretation is

reasonable, Mr. Ruehlen cannot be punished for failing to anticipate that view before 2007. See,

e.g., Hoechst Celanese Corp., 128 F.3d at 225-27.

The SEC’s contention that Mr. Ruehlen must have known that the payments were

impermissibly “large”—and therefore illegal—is equally problematic. (See, e.g., Compl. ¶¶ 44,

91, 123.) First, the statute does not distinguish between bribes as “large” and facilitation

14 The SEC recognized this precise point when it stated, “The facilitating payments identified in the statute are thus payments for official actions . . . all of which likely would not directly result in the acquisition or renewal of a specific piece of business.” Brief of the SEC as Amicus Curiae Supporting Appellant, at 15, United States v. Kay, 359 F.3d 738 (2004) (No. 02-cr-20588), 2002 WL 32507955.

15 The Complaint makes clear that other drilling contractors in Nigeria engaged in the same practices (Compl. ¶ 85), further reinforcing the general belief that these payments were legal. Indeed, “when considering an ‘as-applied’ challenge, a court must consider the context in which the regulation was enforced, i.e., it must evaluate the underlying conduct by reference to the norms of the subject community.” Inturri v. City of Hartford, 365 F. Supp. 2d 240, 254-55 (D. Conn. 2005) (quoting Perez v. Hoblock, 368 F.3d 166, 175-76 (2d Cir. 2004)) (emphasis added).


21

payments as “small.” Moreover, there is nothing intrinsically “large” about facilitation payments

of approximately $37,500 each year (id. ¶ 47), particularly in the context of Noble’s extensive

operations in Nigeria alleged in the Complaint (e.g., id. ¶¶ 1-2, 18). The law provides no

guidance regarding whether a particular payment is “too large” or “small enough” and, thus,

whether individuals like Mr. Ruehlen will be subjected to severe sanctions and potentially

career-ending enforcement actions. Unbounded “largeness” “fail[s] to provide explicit standards

for those who” enforce the laws and impermissibly “invests law enforcement officers with on-

the-spot legislative power,” which results in “ad hoc and subjective . . . applications” of the law,

as the instant case ably demonstrates. Okpalobi, 190 F.3d at 358 (internal quotes omitted). It

also fails to enable well-meaning and well-intentioned individuals to “steer between lawful and

unlawful conduct”—a central value that is protected by the void for vagueness doctrine.

Grayned, 408 U.S. at 108-09. Accordingly, the Complaint should be dismissed on vagueness

grounds as applied to Mr. Ruehlen.

D. Claims 3 and 4 Must Be Dismissed Because the SEC Fails To Identify the

False Book, Record, or Account, or the Circumvented Control, and Because

Any Alleged Violations Are Derivative of the Underlying Bribery Allegations.

Claims 3 and 4 allege general violations of the FCPA’s accounting provisions, but fail to

identify which of Noble’s books, records, or accounts were allegedly false and which specific

internal accounting controls were allegedly circumvented. (Compl. ¶¶ 157-67.) These

shortcomings require that Claims 3 and 4 be dismissed for failure to state a claim. Cuvillier v.

Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (setting forth requirements of Federal Rule of Civil

Procedure 8 under Twombly); see also SEC v. Fraser, No. 09-cv-443, 2010 WL 5776401, at *9

(D. Ariz. Jan. 28 2010) (noting that “[m]ultiple district courts have commented upon the

unhelpfulness of [the shotgun] pleading strategy . . . and have dismissed SEC complaints because

of it”). Moreover, to the extent that one can infer the alleged violations of the FCPA’s


22

accounting provisions from the Complaint, those violations appear to be completely predicated

on the allegations in Claims 1 and 2 that Noble’s authorization of special handling fees were

illegal bribes and not lawful facilitation payments. Given that Claims 1 and 2 fail to state a cause

of action against Mr. Ruehlen, Claims 3 and 4 fail to do so as well and must be dismissed.

The SEC’s books-and-records allegations turn on the view that the special handling

payments did not fund facilitation payments, but rather funded impermissible bribes. Thus, the

SEC apparently alleges, by booking these payments as “legitimate operating expenses on

Noble’s books” (Compl. ¶ 3) (i.e., as facilitation payments in a dedicated account), Noble’s

books were somehow false. Because Plaintiff has failed to plead the identity of any foreign

officials and does not meet its burden of alleging that the payments were not facilitation

payments, it likewise fails to allege that Noble’s books and records were false. Separately, these

claims should be dismissed because the Complaint fails to allege that Mr. Ruehlen had any role

in deciding how the special handling charges should be recorded in Noble’s books, records, and

accounts.

With respect to the internal controls claims, the Complaint alleges only that “Jackson

failed to implement [the requisite] internal accounting controls.” (Compl. ¶ 3.) To the extent

that the claims are premised on allegations that Mr. Ruehlen “repeatedly prepared and signed

quarterly representation letters to Noble’s upper management,” stating that Noble had “not

violated” the FCPA, while knowing that Noble was “paying bribes to government officials to

obtain illicit TIPs” (id. ¶ 141), those claims are derivative of Claims 1 and 2, and the SEC’s

failure to establish that Noble paid bribes defeats any assertion that Mr. Ruehlen circumvented


23

Noble’s internal controls.16 See SEC v. Coffman, No. 06-cv-00088, 2007 U.S. Dist. LEXIS

61,347, at *41-44 (D. Colo. Aug. 21, 2007) (stating that the SEC’s failure to prove an underlying

securities law violation requires its accounting claims to fail); United States v. Lake, 472 F.3d

1247, 1262-63 (10th Cir. 2007) (dismissing section 13(b)(5) charges after holding that the

government failed to prove an underlying violation of the securities laws); cf. SEC Action

Against Baker Hughes Incorporated’s Former Chief Financial Officer and Controller Is

Concluded, Litig. Rel. No. 18863 (Sept. 1, 2004) (reporting that “on joint motion of the parties,

the court dismissed the Commission’s remaining books and records and internal controls claims

with prejudice” following dismissal of FCPA anti-bribery claims).

E. Plaintiff’s Claims and Supporting Allegations Must Be Dismissed Because

They Rely on Untimely Allegations that Fall Outside the Statute of

Limitations.

An SEC claim for civil penalties is governed by the five-year statute of limitations

applicable to civil actions. See 28 U.S.C. § 2462; see also SEC v. Microtune, Inc., 783 F. Supp.

2d 867, 873 (N.D. Tex. 2011), appeal docketed, No. 11-10594 (5th Cir. June 21, 2011) (noting

that the SEC and defendants agreed that Section 2462 “applies to the SEC’s claims for civil

penalties”). In the Fifth Circuit, the claim accrues on the date of the violation. Microtune, 783

F. Supp. 2d. at 873; United States v. Core Labs., Inc., 759 F.2d 480, 482 (5th Cir. 1985).

Therefore, conduct occurring before February 24, 2007, i.e., more than five years prior to the

date this lawsuit was filed, is time-barred.

16 Moreover, internal controls are designed to assure that transactions are made in accordance with management’s authorization and recorded in a manner that ensures Noble’s financial statements comply with generally accepted accounting principles (“GAAP”). See 15 U.S.C. § 78m(b)(2)(B). Plaintiff does not allege that Noble’s financial statements were materially inaccurate, inconsistent with GAAP, or would have differed had Noble recorded the payments as “bribes,” rather than as “facilitation payments.” Instead, the Complaint makes clear that Mr. Ruehlen consistently sought and received authorization from Noble’s CFOs to pay special handling charges to Noble’s customs agents to secure TIPs, confirming that Noble’s assets were used and recorded as management directed.


24

Here, the vast majority of the allegedly unlawful conduct occurred before February 24,

2007 (see Compl. ¶¶ 18, 23-125, 138-41), and each of the four claims applicable to Mr. Ruehlen

incorporates and is premised upon time-barred allegations. Because the Complaint fails to raise

any basis for tolling of the statute of limitations,17 the Court should dismiss with prejudice any

claims predicated on conduct allegedly occurring before the statute of limitations date. See, e.g.,

Se. Banking Corp., 69 F.3d 1539, 1548 (11th Cir. 1995) (affirming the dismissal of “portions of

the complaint . . . [in part because] some of the allegations are barred by the statute of

limitations”) (emphasis added); Abramo v. Teal, Becker & Chiaramonte, No. 09-cv-269,

Memorandum Decision and Order, at 24 (N.D.N.Y. May 12, 2010) (dismissing with prejudice

that portion of plaintiffs’ first complaint predicated on defendants’ conduct prior to the statute of

limitations date); see also, e.g., Kellogg v. N.Y. State Dep’t of Corr. Servs., No. 07-cv-2804,

2009 WL 2058560, at *1-2 (S.D.N.Y. July 15, 2009) (same).

Given that the Complaint also seeks injunctive relief, the SEC may argue that the alleged

conduct that occurred years outside the statute of limitations is relevant. That argument fails. As

an initial matter, the SEC has completely failed to plead facts suggesting that injunctive relief is

necessary because of a “reasonable likelihood” that Mr. Ruehlen “is engaged or about to engage

in practices that violate the federal securities laws.” SEC v. First Fin. Grp. of Tex., 645 F.2d

429, 434 (5th Cir. 1981); SEC v. Jones, 476 F. Supp. 2d 374, 383-84 (S.D.N.Y. 2007) (requiring

17 Although Mr. Ruehlen did sign several tolling agreements with the SEC, the vast majority of the alleged conduct is time-barred regardless. Because the SEC failed to plead the existence of those agreements in its Complaint, however, their existence ought not be considered for purposes of this Motion to Dismiss. See, e.g., Solis v. Bruister, No. 10-cv-00077, 2012 WL 776028, at *2-4 (S.D. Miss. Mar. 8, 2012) (dismissing plaintiff’s complaint and directing plaintiff to “file an amended complaint that makes specific reference to the tolling agreements”). Nor has the SEC alleged any facts that would give rise to tolling based on the doctrine of fraudulent concealment. Microtune, 783 F. Supp. 2d. at 875; see also SEC v. Brown, 740 F. Supp. 2d 148, 158 (D.D.C. 2010) (quoting Larson v. Northrop Corp., 21 F.3d 1164, 1173 (D.C. Cir. 1994)); Summer v. Land & Leisure, Inc., 664 F.2d 965, 970-71 (Former 5th Cir. 1981) (setting forth the standards for pleading fraudulent concealment).


25

the SEC to “go beyond the mere facts of past violations and demonstrate a realistic likelihood of

recurrence”). Given that Mr. Ruehlen’s alleged actions took place more than five years ago and

that the Complaint alleges that Mr. Ruehlen is a current Noble employee (who is therefore bound

by Noble’s existing consent injunction),18 the Complaint alleges no facts upon which the Court

could grant the SEC the relief it seeks.

VI. CONCLUSION

For the foregoing reasons, Plaintiff’s Complaint against Mr. Ruehlen fails to state a

claim, and the Court should dismiss Claims 1-4 against Mr. Ruehlen in their entirety.

DATED this 8th day of May, 2012.

Respectfully submitted, /s/ _ F. JOSEPH WARIN JOHN H. STURC BRIAN C. BALDRATE GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, District of Columbia 20036 Telephone: (202) 955-8500 Facsimile: (202) 467-0539 Counsel for Defendant James J. Ruehlen

Of Counsel:

DAVID GERGER GERGER & CLARKE 1001 Fannin, Suite 1950 Houston, Texas 77002 Telephone: (713) 224-4400 Facsimile: (713) 224-5153

18 On November 12, 2010, Judge Rosenthal issued a final judgment in which Noble consented to being enjoined against violations of the FCPA and to other remedies. See SEC v. Noble Corp., No. 10-cv-4336 (S.D. Tex. Nov. 4, 2010); accord Complaint ¶ 21, SEC v. O’Rourke, 12-cv-564 (S.D. Tex. Feb. 24, 2012).


CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of May, 2012, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the following:

Kenneth W. Donnelly Assistant Chief Litigation Counsel Division of Enforcement, Trial Unit U.S. Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. [email protected] Counsel for Plaintiff Securities and Exchange Commission

David S. Krakoff BuckleySandler LLP 1250 24th Street, N.W. Washington, D.C. 20037 [email protected] Counsel for Defendant Mark A. Jackson

/s/ _

Brian C. Baldrate


IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Securities and Exchange Commission, Plaintiff, v. Mark A. Jackson et al., Defendants.

Civil Action No. 4:12-cv-00563

[PROPOSED] ORDER

Upon consideration of Defendant James J. Ruehlen’s Motion to Dismiss Plaintiff’s

Complaint for Failure to State a Claim and the response(s) thereto, it is hereby ORDERED that

the motion is GRANTED, and the Complaint against Mr. Ruehlen is hereby DISMISSED.

IT IS SO ORDERED on this ____ day of ___________, 2012.

___________________________________

KEITH P. ELLISON UNITED STATES DISTRICT JUDGE


sec v. james ruehlen (motion to dismiss)

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