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DOJ Deputy Assistant Attorney General McFadden Delivers The FCPA Script

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One can predict with a high degree of certainty what high-ranking DOJ officials will say about the Foreign Corrupt Practices Act before even hearing or reading the speech (and I say that based on highlighting on these pages over 100 FCPA enforcement agency speeches since 2009).

The script goes like this: the DOJ places a high-priority on FCPA enforcement as well as transparent enforcement; the DOJ is committed not just to corporate enforcement, but holding individuals accountable as well; and companies benefit from voluntary disclosure and cooperation.

New DOJ Deputy Assistant Attorney General Trevor McFadden delivered the script recently in this speech. However, if you want to know how McFadden really feels about DOJ enforcement of the FCPA you might want to review his recent writings on the topic highlighted in this recent post.

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DOJ Highlights 11 Factors Relevant In Evaluating A Corporate Compliance Program

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Last week the DOJ released this document highlighting 11 factors relevant in evaluating a corporate compliance program.

The factors should be familiar to compliance professionals well-versed on best-practices policies and procedures (whether in the FCPA context or otherwise) and there is really nothing new about the document (indeed the document cites to sources long in the public domain). Yet the document, the origins and purpose of which are not known, was released by a “new” DOJ with new leadership and is thus worthy of highlighting.

Organizing the existing body of best practices in one document is all fine and dandy. The more important question however is what should happen if a business organization acts consistent with the factors but an employee nevertheless exposes the entity to legal liability. Consistent with the FCPA-like laws of many peer countries, this should be relevant as a matter of law and not merely in the opaque, inconsistent, and unpredictable world of DOJ decision making. (See here).

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SEC Director Of Enforcement Ceresney On …

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Yesterday’s post highlighted comments made by Deputy Attorney General Sally Yates at a recent Foreign Corrupt Practices Act event and this post provides equal time to comments made by SEC Director of Enforcement Andrew Ceresney at the same event.

Similar to the DOJ speech, much of Ceresney’s speech represents the same old, same old something even he acknowledged during his speech.

When reading Ceresney’s comments about the importance of individual FCPA prosecutions keep in mind the following facts. In 2016 there have been 21 SEC corporate FCPA enforcement actions and 15 actions (72%) have not resulted (at least yet) in any related FCPA charges against company employees. This figure is generally consistent with the overall figure since 2008 in which approximately 80% of SEC corporate FCPA enforcement actions have not resulted in any related FCPA charges against company employees.

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Same Old, Same Old From The DOJ On Individual FCPA Prosecutions

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In running a Foreign Corrupt Practices Act news source for seven years running, there is a “been there, done that” aspect to some of the writing.

For instance, every late November FCPA Professor highlights speeches by DOJ and SEC enforcement officials at a certain FCPA conference run by a for-profit conference company which engages in the disgraceful practice of marketing our public officials to draw attendance to its paid event as if the public officials are a commodity they own. (See here, here, and here for prior posts regarding this practice).

Why DOJ and SEC officials allow themselves to be used in such a way is beyond me.

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The Many Ironies Of Mary Jo White’s Tenure At The SEC

Mary Jo White, chair of the Securities and Exchange Commission, testifies to the House Financial Services Committee about the effects of the Volcker Rule on employment in Washington on February 5, 2014.      REUTERS/Joshua Roberts    (UNITED STATES - Tags: POLITICS BUSINESS) - RTX189AM

Earlier this week SEC Chair Mary Jo White announced that she will soon be leaving the SEC.

As the head of the SEC since April 2013, White obviously had a lot on her plate and thus judging her tenure through the lens of the Foreign Corrupt Practices Act and related issues is a bit too narrow.

Nevertheless, as SEC Chair White did frequently speak about the FCPA and related issues and the SEC does maintain an FCPA Unit (one of only five specialized units at the SEC). Thus, judging her tenure with reference to the FCPA is warranted.

In this regard, this post highlights the many ironies of White’s tenure at the SEC. Some of the issues discussed below certainly pre-date White’s tenure at the SEC, yet as Chair the issues continued under White’s leadership.

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