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FCPA Flash – A Conversation With Ty Cobb Regarding FCPA Enforcement And Enforcement Policies

FCPA Flash

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 expect from the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Ty Cobb (Hogan Lovells), a former federal prosecutor and widely regarded as one of the leading white collar defense attorneys in the country. In the episode, Cobb discusses whether the SEC should formally announce an FCPA Pilot Program similar to what the DOJ announced in April 2016; the lack of judicial scrutiny of FCPA enforcement actions; what “success” means in FCPA enforcement; and dynamics relevant to foreign law enforcement actions concerning FCPA or similar conduct.

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SEC Chair White On The FCPA

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 delivered this speech.

Her speech focused on “a few priority areas that illustrate the dimensions of the SEC’s international role” and a substantial portion of the speech focused on the Foreign Corrupt Practices Act including how “vigorous enforcement of the FCPA is a high priority for both the SEC and DOJ.”

On individual actions, Chair White stated: “we prioritize charging individuals involved in bribery schemes where we have the necessary evidence and jurisdiction over the offender [and that] holding individuals accountable for their misconduct remains one of the most powerful deterrents in any enforcement area.”

Keep in mind however the following facts. In 2016 thus far, 70% of corporate SEC FCPA enforcement actions have not involved any related individual charges and since 2008 approximately 80% of corporate SEC FCPA enforcement actions have not involved any related individual charges.

The remainder of this post excerpts the FCPA portion of Chair White’s speech.

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FCPA Flash – A Conversation With Lee Dunst Regarding Voluntary Disclosure And Cooperation

FCPA Flash

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 the written posts on FCPA Professor.

This FCPA Flash episode is a conversation with Lee Dunst (Gibson, Dunn & Crutcher) who recently penned a piece that caught my eye about the DOJ’s expectations for voluntary disclosure and cooperation. In the episode, Dunst elaborates on points discussed in the piece including how senior executives and corporate directors have come to resent the DOJ’s paternalistic commands embodied in various FCPA enforcement policies. Dunst also touches upon the “Yates Memo” and the DOJ’s “FCPA Pilot Program.”

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Analyzing The DOJ’s Recent Comments About Its FCPA Pilot Program

U.S. Presentation Before the Committee Against Torture

This recent post noted that DOJ and SEC enforcement officials have historically hit the speaking circuit in September.

Sure enough.

First up is DOJ Principal Deputy Assistant Attorney General David Bitkower (pictured) who delivered this speech last week at an ABA conference.

As excerpted below, a portion of Bitkower’s speech focused on the Foreign Corrupt Practices Act including the DOJ’s so-called FCPA Pilot Program announced in April 2016 (see here for the prior post and here, here, here, here, here and here for prior posts regarding the program).

In the speech, Bitkower calls the FCPA Pilot Program “sophisticated” and “transparent.”

As demonstrated below, the FCPA Pilot Program is anything but.

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The Yates Memo – One Year Later

Sally Yates, during her confirmation hearing before the Senate Judiciary Committee to be Deputy Attorney General at the U.S. Department of Justice.  March 24, 2015.  Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

As highlighted in this prior post, last September 10th DOJ Deputy Attorney General Sally Yates delivered this speech and released this memo titled “Individual Accountability for Corporate Wrongdoing. (See here for the video of the speech). Like prior DOJ policy memos, the memo took the name of the author and quickly became known as the “Yates Memo.”

The Yates Memo attracted substantial press, particularly the portion of the memo and associated speech that focused on individual liability for alleged corporate wrongdoing. (For instance, this post highlighted what others were saying about the Yates Memo).

While some called this a “new” focus on DOJ individual prosecutions, the prior post highlighted that the Yates Memo merely continued the DOJ’s rhetoric as to the importance of individual prosecutions and was substantively similar to this September 2014 speech delivered by then Principal Deputy Attorney General Marshall Miller, this September 2014 speech delivered by then Attorney General Eric Holder, not to mention several other DOJ speeches going back nearly a decade.

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