Barry Pollack commented on potential charges that could be faced by Wolff & Samson PC co-founder David Samson, who allegedly used his Port Authority of New York and New Jersey chairmanship to help his firm's clients. If prosecutors do find offensive conduct, they could turn to federal criminal laws against interfering with commerce through the use of one's official office, or Title 18, Section 666 of the U.S. code, which prohibits parties from fraudulently obtaining or misapplying federal funds, Pollack said. "Fraud does not require a bribe or a kickback. Nor does it require an affirmative false statement. The intentional omission of a material fact can suffice to constitute fraud. The government could argue that an undisclosed conflict of interest was a fraudulent material omission of fact."
While the Supreme Court limited the honest services provision for mail and wire fraud in its Skilling decision, federal appeals courts have been developing their own bodies of law on the types of bribery and kickbacks that can trigger the statute, Pollack said. New Jersey could be a more attractive forum for prosecutors than New York, due to the Third Circuit's decision in U.S. v Bryant, finding that there doesn't have to be a quid pro quo for an honest services violation and that a stream of benefits for some official action is enough. "A stream of monetary benefits received as a result of an undisclosed conflict of interest could be argued to be a kickback such that the honest services provision applies," he said.