FEDERAL ELECTION COMMISSION

 WASHINGTON, D.C. 20463 

BEFORE THE FEDERAL ELECTION COMMISSION

In the Matter of ) 

 ) 

Rev. Ruben Diaz for Congress, et. al. ) MUR 7747 

 ) 

 

STATEMENT OF REASONS OF VICE CHAIR ALLEN DICKERSON AND 

COMMISSIONERS SEAN J. COOKSEY AND JAMES E. “TREY” TRAINOR, III

In this matter, we voted to approve the Office of General Counsel’s (“OGC”) 

recommendations to dismiss the allegations that Fresh Direct violated 52 U.S.C. §§ 30104(b) and 

30118(a) by making prohibited and unreported in-kind contributions to Rev. Rubén Díaz for 

Congress. We further voted to approve OGC’s recommendations to dismiss the allegation that 

Rev. Ruben Díaz violated 52 U.S.C. § 30118(a) by accepting prohibited in-kind contributions from 

Fresh Direct LLC, and dismiss the allegation that Rev. Rubén Díaz for Congress and Andreina 

Cruz in her official capacity as treasurer violated 52 U.S.C. §§ 30104(b) and 30118(a) by accepting 

prohibited and unreported in-kind contributions from Fresh Direct LLC. 

For the purposes of 52 U.S.C. § 30109(a)(8), we attach our proposed Factual and Legal 

Analysis in this matter.

__________________________________ December 3, 2021 

Allen Dickerson Date

Vice Chair

_________________________________ December 3, 2021 

Sean J. Cooksey Date

Commissioner

_________________________________ December 3, 2021 

James E. “Trey” Trainor, III Date

Commissioner 

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FEDERAL ELECTION COMMISSION

FACTUAL AND LEGAL ANALYSIS

RESPONDENTS: Rev. Rubén Díaz for Congress and MUR 7747 

 Andreina Cruz in her official capacity

 as treasurer 

 Rev. Rubén Díaz 

 Fresh Direct LLC 

 

I. INTRODUCTION

This matter was generated by a Complaint filed with the Federal Election Commission (the 

“Commission”) by Rush Perez, treasurer of Bronx United.1 The Complaint alleges that New York 

City Council Member Rev. Rubén Díaz, a candidate for New York’s 15th Congressional seat, and 

Rev. Rubén Díaz for Congress, his campaign committee (the “Committee”)(collectively 

“Respondents”), violated the Federal Election Campaign Act of 1971, as amended, (the “Act”) by 

accepting illegal corporate contributions and knowingly failing to disclose contributions to his 

campaign. As discussed in further detail below, the Commission dismisses the allegations outlined 

in the Complaint. 

II. FACTUAL AND LEGAL ANALYSIS

 The Complaint alleges that Rev. Díaz used city government resources to support his 

federal campaign, citing Díaz’s participation in a number of government-sponsored food drives 

outside of his council district at which a corporate entity, Fresh Direct, LLC (“Fresh Direct”) 

donated groceries and masks.2

 

 Respondents deny the allegations. The joint response of the Committee and Díaz (“Díaz

Respondents”) maintains that Díaz attended the events in question “in his capacity as the head of 

1

 See 52 U.S.C. § 30109(a)(1). 

2

 Compl. at 2-7 (June 17, 2020).

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a long established Ministers group,” and notes that the candidate “did not display any campaign 

posters, literature etc.” 3

 The Díaz Respondents further deny that Díaz had any contact with the 

corporations that donated the food.4 Additionally, Respondents assert that Fresh Direct did not 

coordinate its efforts with, or make an in-kind contribution to Díaz or the Committee, as there 

were no communications or agreements as to how much and what kinds of food would be 

donated.5 

 Fresh Direct denies that it made a contribution by providing the food and masks. It 

explains that it entered into a contract with the New York City Sanitation Department 

(“NYCSD”) to provide food boxes across all five boroughs of the city.6

 Under this arrangement, 

Fresh Direct assembled food boxes and delivered them to locations as requested by local elected 

officials “without reference to any federal election.”7

 Fresh Direct further states that Rev. Díaz’s 

opponents for federal office also requested food box distributions.8

 The Act and Commission regulations generally prohibit any corporation from making 

contributions to a candidate’s principal campaign committee.9

 “Contribution” is defined to 

include any gift of money or “anything of value” for the purpose of influencing a federal 

3

 Joint Response of the Committee and Rev. Ruben Díaz (“Joint Resp.”) at 1 (June 30, 2020). 

4

 Id. 

5

 Id. at 2. 

6

 Response of Fresh Direct (“Fresh Direct Resp.”) at 2 (July 2, 2020).

7

 Id.

8

 Id. 

9

 52 U.S.C. § 30118(a); 11 C.F.R. § 114.2(b). 

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election.10 “Anything of value” includes in-kind contributions, such as the provision of goods or 

services without charge or at a charge that is less than the usual and normal charge.11 

 Officers and directors of corporations may not consent to any contribution prohibited by 

section 30118(a).12 Correspondingly, federal candidates and their authorized committees may 

not knowingly accept a corporate contribution.13 An expenditure made by any person “in 

cooperation, consultation, or concert with, or at the request or suggestion of, a candidate, his 

authorized political committees, or their agents” constitutes a contribution to the candidate.14 

 Under the Act and Commission regulations, an entity does not make a contribution if it 

provides services in the ordinary course of business and at the usual and normal charge.15 

Commission regulations define the “usual and normal charge” for goods is “the price of those 

goods in the market from which they ordinarily would have been purchased at the time of the 

contribution.”16 The Commission has previously opined that entities may establish the “usual 

and normal charge” of goods or services by reference to the “fair market price” of goods or 

services,17 “commercial considerations,”18 or the fee provided to “similarly situated persons in 

10 52 U.S.C. § 30101(8)(A); 11 C.F.R. § 100.52(a).

11 11 C.F.R. § 100.52(d)(1).

12 Id. 

13 Id. 

14 52 U.S.C. § 30116(a)(7)(B)(i); see also Explanation and Justification for Regulations on Coordinated and 

Independent Expenditures (“Coordination E&J”), 68 Fed. Reg. 421, 426 (Jan. 3, 2003). 

15 11 C.F.R. §§ 100.52(d), 100.110(e). 

16 11 C.F.R. § 100.52(d)(2).

17 See Advisory Op. 2010-30 (Citizens United) (“Because the ‘fair market price’ is the price of the list in the 

market in which lists are ordinarily rented at the time of the rental, the ‘fair market price’ is the usual and normal 

charge for renting the list [of email contacts].”).

18 Advisory Op. 2012-31 (AT&T) (opining that AT&T’s proposed rate structure for text-message fundraising 

was not a contribution because, although rates would be lower than those AT&T usually charges to use its text 

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the general public.”19 The Commission has determined that the provision of services, when done 

so at the usual and normal charge, does not constitute a contribution.20 

Díaz’s appearance and participation in a city-funded event, whether as a city council 

member or as a minister, is insufficient information to conclude that Fresh Direct made an inkind contribution to Díaz. There is no specific information suggesting that Fresh Direct provided 

these services for the purpose of influencing a federal election. 

Fresh Direct’s attached “Award Letter” detailing the terms of its agreement with the 

NYCSD indicates that Fresh Direct would have provided the same materials for the food drives 

irrespective of Díaz’s candidacy, or anyone else’s.21 The agreement obligated the NYCSD to 

pay Fresh Direct $5,000,000 to provide 2,500 food boxes per day over a three-month period. 

Fresh Direct maintains that it had no input with respect to the disposition of the food boxes, and 

that the “[d]eliveries [were] made across the city without reference to the political affiliation of 

any elected official involved in requesting a delivery or distributing the boxes.”22 And the Díaz

Respondents state that at each food distribution event at issue, “neither Rev. Díaz, nor his 

campaign distributed or in any manner publicized, his campaign for Congress.”23 

message platform, the proposed rates would cover the company’s costs as well as profit and would be offered on the 

same terms to all political customers).

19 Advisory Op. 2004-6 (Meetup) (concluding that a fee is usual and normal if the charge is “set in 

accordance with the fixed set of fee criteria” and “applied equally between the various classes of candidates...and 

other members of the general public who are similarly situated with respect to the respective classes of candidates 

and political committees.”); see also Advisory Op. 2014-09 (Reed Marketing). 

 

20 See, e.g., MUR 6141 (Friends of Dave Reichert); MUR 6023 (John McCain 2008); MUR 5496 (Huffman 

for Congress); MUR 4989 (Dole/Kemp ’96). 

21 Fresh Direct Resp. at 2; Attachment.

22 Fresh Direct Resp. at 2.

23 Id.

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Thus, the available information indicates that Fresh Direct provided the food and masks 

pursuant to a city contract to anyone who made a proper request under that contract, and there is 

no information that that the price the City paid for those goods was less than the usual and 

normal charge. There is therefore insufficient information to conclude that Fresh Direct made an 

in-kind contribution to Díaz. 

 Accordingly, the Commission dismisses the allegation that Fresh Direct violated 

52 U.S.C. §§ 30104(b) and 30118(a) by making prohibited and unreported in-kind contributions 

to Rev. Rubén Díaz for Congress. Further, the Commission dismisses the allegation that Rev. 

Ruben Díaz violated 52 U.S.C. § 30118(a) by accepting prohibited in-kind contributions from 

Fresh Direct LLC, and that Rev. Rubén Díaz for Congress and Andreina Cruz in her official 

capacity as treasurer violated 52 U.S.C. §§ 30104(b) and 30118(a) by accepting prohibited and 

unreported in-kind contributions from Fresh Direct LLC.

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