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FCPA Flash – A Conversation With Alice Fisher Regarding DOJ FCPA Enforcement And Policy

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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 Alice Fisher (Latham & Watkins and former Assistant Attorney General in charge of the DOJ’s Criminal Division). During the podcast, Fisher discusses: the DOJ’s recent non-binding policy discouraging “piling on”;  the DOJ’s FCPA Opinion Procedure program in light of her 2006 comments as Assistant AG that the program should “be something that is useful as a guide to business”; whether the DOJ’s long-standing efforts to encourage voluntary disclosure have failed (for instance in the same above-linked speech Fisher stated: “I can tell you [companies] in unequivocal terms that you will get a real benefit” for voluntary disclosure; whether FCPA enforcement (in terms of resolution vehicles, enforcement theories, DOJ/SEC policy, etc.) has evolved for the better or the worse since her time at the DOJ; and what about the FCPA (the actual statute) or FCPA enforcement (DOJ/SEC enforcement policy, resolution vehicles, etc.) should change and why.

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DOJ’s FCPA Unit Chief Refuses To Answer Various Factual Questions Regarding FCPA Enforcement

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For years, I have tried to engage with Foreign Corrupt Practices Act enforcement officials and the consistent response has been no – even though such officials routinely speak at FCPA conferences (usually paid events runs by for profit companies) and routinely grant interview requests.

This is disappointing given that U.K. law enforcement officials have long engaged with me on bribery and corruption topics (see here, here, here and here among other posts).

After listening to this recent podcast in which DOJ FCPA Unit Chief Daniel Kahn speaks about a variety of FCPA issues, I invited Mr. Kahn to be a guest on the FCPA Flash podcast and was invited to submit questions. I submitted the below questions – mostly fact-based and statistically driven – yet the response I received from the DOJ press office was “Dan Kahn respectfully declines interview.”

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Once Again The DOJ Shoots Itself In The Foot

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This is the fourth time this general post has appeared on these pages (see here, here and here for prior posts).

So here it goes again.

The Department of Justice has long wanted companies to voluntarily disclose conduct that implicates the Foreign Corrupt Practices Act. Why then does the DOJ continually make decisions that should result in any board member, audit committee member, or general counsel informed of current event not making the decision to voluntarily disclose?

The recent Societe Generale enforcement action (see here and here for prior posts) is just the latest example.

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SEC Potpourri

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A suggestion for the SEC and excerpts from a recent speech by Steven Peikin (Co-Director, Division of Enforcement) on effective communication with the SEC.

Suggestion for the SEC

As highlighted here, the SEC recently launched SEC Action Lookup for Individuals (SALI) “that enables investors to research whether the person trying to sell them investments has a judgment or order entered against them in an enforcement action. The new tool is intended to assist the public in making informed investment decisions and avoiding financial fraud.”

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A Dandy, FCPA Relevant Speech By SEC Commissioner Peirce

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Recently, SEC Commissioner Hester Peirce delivered this speech. Peirce never mentioned the Foreign Corrupt Practices Act, but so much of the speech is FCPA relevant.

Indeed, Peirce touches upon topics discussed for years on FCPA Professor such as: the seeming emphasis by government of quantity of enforcement over quality of enforcement; the timing of SEC enforcement actions at the end of a fiscal year as a form of “earnings management;” how the SEC should use other avenues short of enforcement actions to address new and emerging issues (I’ve long believed that the SEC should have used a Section 21(a) Report of Investigation, rather than enforcement actions, to address internship and hiring practice issues); the importance of due process in enforcement; how enforcement agencies should not expand the law through enforcement just because they can; and how issuers and others subject to SEC enforcement settle for simple reasons of risk aversion.

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