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FCPA Flash Podcast – A Conversation With James Koukios Regarding FCPA Enforcement And Compliance

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The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with James Koukios (Morrison & Foerster and former Senior Deputy Chief of the DOJ’s Fraud Section). During the podcast, Koukios elaborates on various points he made in this recent article including: (i) how FCPA enforcement has made “significant and positive contributions to the development of compliance programs and standards; (ii) how regulators and prosecutors may take “unfair and impractical [FCPA] positions;” and (iii) how “FCPA enforcement should not be so puritanical as to stifle legitimate business opportunities or cause companies to overspend on ineffective compliance measures.”

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Panasonic Corp. And Related Entity Resolve $280 Million Avionics Industry FCPA Enforcement Action

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Yesterday, the DOJ and SEC announced (here and here) a parallel Foreign Corrupt Practices Act enforcement action against Japan-based Panasonic Corp.  and a U.S. subsidiary Panasonic Avionics Corp. (PAC).

As stated in the enforcement action, Panasonic was an issuer until April 2013 and again “for a brief period between 2015 and 2016 as a result of a share swap that retriggered Panasonic’s obligation to file its financial statements with the SEC.”

As highlighted in this post, the enforcement action consisted of:

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Dubious As It Was, The Schering-Plough Enforcement Action Was Notable

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[This post is part of a periodic series regarding “old” FCPA enforcement actions]

This recent post discussed how from a compliance take-away standpoint the large, egregious, no reasonable minds could differ there was bribery, enforcement actions are the least important and least instructive.

Rather, the most instructive and thus important enforcement actions tend to be those that take the Foreign Corrupt Practices Act in a new direction, involve unique interpretations of law (not subjected to any judicial scrutiny of course) and thus pose new compliance challenges for business organizations. The SEC’s 2004 enforcement action against Schering-Plough, based on a bona-fide charitable contribution, certainly fits this mold.

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The Difficulty of Reconciling Existing Legal Authority And Even Enforcement Agency Guidance With Certain FCPA Books And Records And Internal Controls Enforcement Actions

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This recent FCPA Flash podcast episode focused on the SEC’s “unlawful” enforcement, in certain instances, of the FCPA’s books and records and internal controls provisions.

Off-the-rails SEC FCPA enforcement is a topic frequently discussed on these pages (see here among numerous other posts) and sometimes it is important to take a step back and review actual legal authority, as well as even prior enforcement agency guidance, relevant to the books and records and internal controls provisions.

Upon reviewing the below information, ask yourself whether it is possible to reconcile this legal authority and other sources of information with enforcement theories advanced in certain FCPA enforcement actions.

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FCPA Flash – A Conversation With Michael Levy Regarding The SEC’s “Unlawful” Enforcement Of The FCPA’s Accounting Provisions

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The FCPA Flash podcast provides in an audio format the same fresh, candid, and informed commentary about the Foreign Corrupt Practices Act and related topics as readers have come to expect from written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Michael Levy (Paul Hastings). Levy recently authored a dandy article titled “The SEC’s Unlawful and Dangerous Expansion of the Exchange Act” in which he asserts that in certain recent enforcement actions the SEC has expanded the FCPA’s books and records and internal controls provisions in an “unlawful” manner and in a way that gives the SEC “capacious authority to regulate by enforcement almost any aspect of the operations of any issuer.” During the podcast, Levy elaborates on these issues and provides suggestions for how SEC enforcement can get back on track given that no issuer has ever put the SEC to its burden of proof in the FCPA’s 40-year history.

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