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SEC Co-Director Of Enforcement Peikin On Success And Remedies

Peikin

Recently, Steven Peikin (Co-Director of the SEC’s Division of Enforcement) gave this speech in which he talked about the meanings of success of the SEC’s enforcement program as well as the remedies and relief available to the SEC in enforcement actions.

While not Foreign Corrupt Practices Act specific, Peikin’s speech was FCPA relevant and portions of the speech (along with commentary) are excerpted below.

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SEC Finally Announces Its FCPA Enforcement Action Against Legg Mason

LG

Prior posts here and here highlighted the DOJ’s June FCPA enforcement action against Legg Mason regarding business conduct in Libya. It was noted in the prior post that FCPA enforcement actions against issuers that involve a DOJ and SEC component are almost always announced on the same day. Yet for some reason, back in June the i’s were not dotted or the t’s crossed at the SEC and the DOJ’s June enforcement action clearly had a placeholder for the forthcoming SEC prong.

That happened earlier today as the SEC finally announced its enforcement action.

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Friday Roundup

Roundup

Impasse, quotable, scrutiny alerts, um excuse me but, and for the reading stack. It’s all here in the Friday roundup.

Impasse

Walmart’s FCPA scrutiny began in late 2011. Yet, nearly seven years later there still has not been an enforcement action.

Bloomberg reports: “Walmart Inc. set aside nearly $300 million last fall for a possible resolution with the U.S. government over international bribery allegations, a sign that an end to the years-long investigation was imminent. But eight months later, the sides are deadlocked, three people familiar with the matter said. It’s not about the money: One source of tension is prosecutors’ insistence that Walmart, the world’s largest retailer, admit to certain misconduct as part of any deal, one of the people said.”

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FCPA Flash Podcast – A Conversation With Bradley Bondi Regarding His Recent FCPA Relevant House Testimony

Podcast Logo

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 Bradley Bondi (Cahill Gordon & Reindel LLP). As highlighted in this recent post, Bondi testified at a House hearing titled “Ensuring Effectiveness, Fairness, and Transparency in Securities Law Enforcement” that touched upon several FCPA relevant issues. In the podcast, Bondi elaborates on certain of these issues including: disgorgement and statute of limitation issues. In addition, based on his comment during the hearing that “few would consider a local police force successful in deterring crime if it announced record numbers of arrests year after year,” Bondi opines whether the FCPA is being successful in accomplishing its objectives.

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Kokesh – One Year Later

oneyear

As highlighted in this previous post, on June 5, 2017 in Kokesh v. SEC the Supreme Court unanimously rejected the SEC’s position and held that disgorgement “in the securities-enforcement context is a ‘penalty’ within the meaning of [28 U.S.C.] 2462 and so disgorgement actions must be commenced within five years of the date the claim accrues.”

Although Kokesh was not a Foreign Corrupt Practices Act enforcement action, it most certainly was FCPA relevant because ever since the SEC first sought a disgorgement remedy in an FCPA enforcement action in 2004, disgorgement has become the dominant remedy sought by the SEC in corporate FCPA enforcement actions.

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