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This Week On FCPA Professor

ThisWeekPost

FCPA Professor has been described as “the Wall Street Journal concerning all things FCPA-related,” and “the most authoritative source for those seeking to understand and apply the FCPA.”

Set forth below are the topics discussed this week on FCPA Professor – a week largely devoted to 2019 year in review posts.

This post highlights the origins of 2019 corporate enforcement actions.

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A Focus On SEC Individual Actions

SEC

This previous post highlighted various facts and figures from 2019 SEC FCPA enforcement actions against issuers.

As highlighted in the prior post, of the 13 corporate SEC FCPA enforcement actions in 2019, 2 (15%) have involved, at present, related SEC FCPA charges or findings against company employees.

In 2019, the SEC charged or found that six individuals violated the FCPA: Gordon Coburn and Steven Schwartz and Sridhar Thiruvengadam (all associated with Cognizant); Nancy Gougarty (associated with Westport Fuels); Yanliang Li (associated with Herbalife); and Tim Leisnner (associated with Goldman Sachs).

The remainder of this post focuses on SEC FCPA individual actions historically.

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SEC FCPA Enforcement – 2019 Year In Review

SEC

Foreign Corrupt Practices Act enforcement, it’s not just about the DOJ.

Granted, as a civil enforcement agency the SEC’s sticks are less sharp than the DOJ’s, but the SEC also claims a significant piece of the FCPA enforcement pie (query whether it should – but that is a subject for another day – for instance as discussed in “The Story of the Foreign Corrupt Practices Act” the SEC wanted no part in enforcing the FCPA’s anti-bribery provisions).

This post goes in-depth into various facts and figures relevant to SEC FCPA enforcement in 2019.

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Facade Of Enforcement Across The Pond

Laughable

A facade of Foreign Corrupt Practices Act enforcement is when a business organization – often for reasons of risk aversion and efficiency – agrees to resolve an enforcement action in the absence of any judicial scrutiny even though no employee or agent of the company (business organizations obviously can only act through real human beings) was charged. (See here for the article “The Facade of FCPA Enforcement” and here for the article “Measuring the Impact of NPAs and DPAs on FCPA Enforcement.”)

Even more troubling is when employees are charged, put the government to its burden of proof, are acquitted yet the business organization still resolves an enforcement action based on the same underlying conduct.

This 2014 post, published after the United Kingdom formally adopted deferred prosecution agreements, was titled “The U.K. Enters the Facade Era.” As discussed below, recently there was a major facade moment in the U.K.

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Like Prior Years, The Gray Cloud Of FCPA Scrutiny Lasted Too Long In 2019

Gray Cloud

This recent post highlighted the origins of corporate Foreign Corrupt Practices Act enforcement actions in 2019.

Continuing with the 2019 FCPA statistical feast, this post follows the chronology of scrutiny to enforcement and highlights one of the most troubling policy issues when it comes to FCPA enforcement.

That is – FCPA scrutiny simply lasts too long. Specifically, as highlighted below, 4.5 years was the approximate median length of time companies that resolved FCPA enforcement actions in 2019 were under scrutiny.

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