The Seventh Circuit Court of Appeals ordered two former Commonwealth Edison executives released from federal prison hours after oral arguments on the FCPA’s books and records provisions, with a new trial opinion forthcoming.
Anne Pramaggiore, ComEd’s CEO from 2012 to 2018, and Michael McClain, a lobbyist and consultant for the utility, had been incarcerated since their May 2023 convictions in federal court in Chicago. A jury found them guilty on all counts: conspiring to influence and reward the former Speaker of the Illinois House of Representatives to secure favorable legislation for ComEd, plus bribery and record falsification charges.
The FCPA’s books and records and internal controls provisions are what brought a state-level bribery case into federal court. ComEd and parent Exelon Corp are both issuers under the Act, so falsified records tied to the scheme became federal securities violations. The Supreme Court’s June 2024 decision in Snyder vacated the core bribery counts; DOJ didn’t retry them, leaving the FCPA books and records and internal controls convictions standing.
During 49 minutes of oral argument, the panel pressed on questions that rarely reach the appellate level: what does “false” mean; can an omission be false; whether a corporate code of conduct qualifies as an internal control; and whether defendants must know the specific FCPA provision they’re charged with violating.
Hours later, the court granted both bond motions. The order read: “Both Pramaggiore and McClain are entitled to release.”
The formal opinion granting a new trial is coming. In nearly 50 years of the FCPA, appellate review of books and records convictions has been rare.
James Okafor